People ex rel. Wilshire v. Newman , 96 Cal. 605 ( 1892 )

Paterson, J.—

This is an action in the nature of quo warranto, under sections 803 et seq. of the Code of Civil Procedure, to determine whether the relator or the defendant is entitled to the office of member of the board of fire commissioners of the city and county of San Francisco.

The various acts of the legislature relating to the board of fire commissioners of the city and county of San Francisco, and the effect thereof, are considered in People v. Edwards, 93 Cal. 153, and the cases therein referred to.

The relator herein relies upon an ordinance, which is fully set out in the complaint, providing for the complete reorganization of the fire department and the appointment of a board of fire commissioners. His title to the office depends upon the validity of that ordinance.

On the 16th of March, 1889, the ordinance in question, popularly known as the “ Barry ordinance,” was passed by the board of supervisors of the city and county of San Francisco, establishing and regulating the fire department, and providing for a commission, consisting of five members, to be appointed by the board of supervisors. On April 8, 1889, the board appointed the relator and Charles H. Haswell, H. R. Mann, P. F. Dunne, and Maurice Schmitt, members of the board, to have the control and management of the fire department. The court below held, and properly we think, that the board of supervisors had no authority to pass said ordinance.

Section 11 of article XI. of the constitution provides that “ any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws but this delegation of power to make police regulations is authority to make only such regulations as are usual and necessary in the government of municipalities under their respective charters. The act of March 28, 1878, providing as it does for the organization and administration of one of the departments of the municipal government, is a part of the charter of the city and county of San Francisco, and cannot be abrogated by any mere police regulation. Under it the fire department is a branch of the municipal government. (Whitney v. Board of Delegates, 14 Cal. 497.) In People v. Hammond, 66 Cal. 654, it was held that the act of April 1, 1878, relating to the police department, being a part of the charter, was continued in force by the constitution. The act under consideration there holds the same relation to the Consolidation Act as the statute we are now considering. The provision ®f the constitution referred to was not intended to clothe the board of supervisors with the power to annul a constituent part of the charter itself, or to overthrow one of the municipal departments. The power conferred by it is not vested in any particular branch of the municipal government, but in the whole municipality. The government of the city and county of San Francisco is distributed into different departments. The board of supervisors represents one of these departments. The board of fire commissioners represents another department. The board óf supervisors has no more authority to reorganize the board of fire commissioners than the latter has to reorganize the hoard of supervisors. The same power that established one board established the other, and one is just as essential and important a part of the municipal government as the other. The regulations provided for by section 11 of article XI. are such as are in accordance with the fundamental or organic law. This must be so; otherwise the board of supervisors could completely revolutionize the entire city government under a grant of power to make “ such local, police, sanitary, and other regulations as are not in conflict with general laws,” — in effect, make a new charter by ordinance, and change the same as often as it desired.

The strongest argument against the validity of the act is, that in repealing the provision declaring how and by whom two of the officers should be appointed, the constitution necessarily destroyed these two offices, and inasmuch as the two were parts of an integral whole, and the provisions relating thereto being dependent and inseparable, the destruction of the two effected the destruction of all. This contention was fully presented by eminent counsel in People v. Hammond, 66 Cal. 654, and a petition for rehearing was filed and denied. After such consideration and determination by the court, we think the point should be treated as finally settled.

There is nothing in People v. Perry, 79 Cal. 115, inconsistent with what has been said above. In that case, we held, simply, that as the legislature had failed to fix the term of office of the members of the board of health, they held at the pleasure of the governor. In State v. Brewster, 44 Ohio St. 592, cited by appellant, it was admitted by all parties that upon the expiration of Brewster’s term there was a vacancy in the office.

Judgment affirmed.

Garoutte, J., and Harrison, J., concurred.