Fragley v. Phelan , 126 Cal. 383 ( 1899 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an action brought by a taxpayer for an injunction against the board of election commissioners and other municipal officers of the city and county of San Francisco to restrain the expenditures of certain public moneys for the conduct and carrying on of an election in said city and county. The primary and direct purpose of the litigation is to test the validity of the new charter of the city and county of San Francisco, which is to take effect January 1, 1900.

The state legislature of 1897 placed upon the statute books an act which may be called "the charter election act." It is entitled, "An act in relation to elections held under the authority of section 8 of article XI of the constitution to elect boards of freeholders, or to vote upon proposed charters or upon amendments to existing charters." The election to secure a board of freeholders in this city to draft a charter, and the election subsequently held to ratify the action of that board of freeholders, were held under the aforesaid act. The manner of holding and conducting those elections, while in strict conformity with the act, was widely at variance with the provisions of the general law as to the manner and conduct of holding elections in the city and county of San Francisco; and it is now claimed that these elections as held were absolutely void by reason of the unconstitutionality of the statute under which they were held, and that the elections being void, therefore the new charter is a void and barren instrument.

The parties now attacking the constitutionality of this act of the legislature rest the entire results of the litigation upon that attack, conceding in open court that they have no case if that statute be a valid and constitutional law. They insist that the act is unconstitutional in this, that it is violative of section 6 of article XI of the constitution of the state. That part of section 6, article XI, of the constitution here directly involved reads: "Cities and towns heretofore or hereafter organized, and all charters thereof framed and adopted by authority of this constitution, except in municipal affairs, shall be subject to and controlled by general laws." It is now claimed that these two elections to which reference has already been made were "municipal affairs," within the meaning of the constitution, and, therefore, not subject to and controlled by general laws. In this connection it is then claimed that said act of 1897 is a general law attempting to deal with and control "municipal affairs," and for that reason violative of this constitutional prohibition. As a second contention it is asserted that this statute is special legislation, and also lacking in uniformity of operation. We at once pass to an examination of these constitutional objections.

The solution of the question thus presented largely revolves around the meaning of the words "except in municipal affairs," as these words are used in the constitution of the state. The phrase formed by these words has a meaning, and a most significant one. This is apparent when we pause a moment to consider that this single phrase forms the subject matter of an amendment to the constitution of the state. The relationship existing between a state and its municipalities is so close that it may be said every city ordinance and every state statute is a matter of interest to both state and municipality. It may be said that all state affairs are a matter of substantial interest to the municipality, and that likewise all municipal affairs are a matter of concern to the state. Yet those interests are incidental and indirect, and the meaning of this phrase necessarily takes a narrower scope. Indeed, in the very wording of the constitutional provision itself we find that all matters of legislation pertaining to and bearing upon municipalities do not come within the signification of the words "municipal affairs," as used in the constitution. A mere glance at the provision demonstrates this fact. The constitution provides that cities and towns, "except as to municipal affairs," shall be subject to and controlled by general laws. It is here plainly indicated that a vast amount of legislation pertaining to cities and towns does not come under the classification of "municipal affairs."

For the purpose of getting at the true significance of these words, there is no brighter light to be shed upon them, than is disclosed by a consideration of the reasons which moved the legislature to propose the amendment, and the people to adopt it. What was the evil to be remedied? What was the good to be gained by this amendment? The answer is common, every-day history. It was to prevent existing provisions of charters from being frittered away by general laws. It was to enable municipalities to conduct their own business and control their own affairs to the fullest possible extent in their own way. It was enacted upon the principle that the municipality itself knew better what it wanted and needed than the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs. These are a few of the reasons which gave occasion for this concise, but all-significant, amendment to section 6 of article XI of the constitution of the state. This amendment, then, was intended to give municipalities the sole right to regulate, control, and govern their internal conduct independent of general laws; and this internal regulation and control by municipalities comprise those "municipal affairs" spoken of in the constitution.

Municipal affairs, as those words are used in the organic law, refer to the internal business affairs of a municipality. It was the internal business affairs of municipalities then existing and those of municipalities to be hereafter created that the constitutional amendment was framed to meet. There is no sound reason why freeholders' charters should not be framed and ratified under general laws. There are a multitude of sound reasons to be urged why the conduct and procedure of elections for the election of freeholders and ratification of charters should be held under general laws. No sound policy exists demanding special legislation upon such a subject matter. As far as there has been given us light to see, neither the legislature nor the people ever thought of such a thing as the adoption of charters when they placed the words "municipal affairs" in the organic law. In defining the phrase "county affairs" the court said in Hankins v. Mayor, 64 N.Y. 22: "County affairs are those relating to the county in its organic and corporate capacity, and included within its governmental or corporate powers." Tested by this rule elections held as preliminary steps toward the creation of a freeholders' charter are not municipal affairs.

The city and county of San Francisco is a municipality. The municipal affairs of this municipality are a multitude, covering its business transactions. These business matters are the municipal affairs of the present municipality, but the drafting and ratification of a new charter is not one of its business matters. The conduct of the present municipality's business affairs has nothing to do with the question of the creation of a new municipality. The new municipality will have municipal affairs of its own after it is created and not before. The old municipality performs its functions when it carries on the business intrusted to it. As a municipality it has no voice in saying whether or not there shall be a new charter. In that matter it is wholly passive. If its inhabitants say to it, "Stay with us yet awhile," it stays. If they say: "Your days are ended; you have outlived your usefulness, stand aside," it makes no protest. The decree of the people is its will. A municipal affair pertains to something which may be done by the municipality. The creation of a new charter is a matter not placed in the hands of the municipality, but in the hands of the inhabitants thereof with the consent of the state.

As the legislature alone has the power to approve a charter, it inherently, in the absence of constitutional prohibition, must have the power to prescribe the terms, conditions, and mode upon which it will give its approval; and, if an election is made necessary by the constitution as a condition precedent to the validity of the charter, the legislature has the power to say what shall be the nature of that election, and how it shall be conducted. And such power gives it the right to say how many voting precincts shall be used upon election day, and what shall be the manner and time for registration.

Viewing this question from another angle, it seems that the creation of a charter is not essentially and alone a municipal affair. It is a state affair, and that fact is recognized in unmistakable terms by the state when the constitution demands that the state legislature approve the instrument by a majority vote; and until such approval it has no life. Notwithstanding all the people of the municipality with a single voice may ask for a new charter, yet the state, by and through its legislature, may deny that request. The legislature stands as the representative of the sovereign power of the state, and has the arbitrary right to grant or refuse charters to municipalities. A grant of a charter to a municipality is a grant of so much power. It is a delegation of a certain amount of power to the municipality theretofore vested in the state. It is parting with a portion of its sovereignty. It is for this reason that the state, through its legislature, must breathe into the charter the breath of life; and if the state withhold its breath such action is beyond all review. When the constitution vested this omnipotent power in the legislature, it would seem that the framers of that instrument deemed the creation of a municipal corporation a state affair of the greatest import.

In speaking to the general principle here involved Judge Cooley says in People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103: "There is no doubt of the right of the state to do any of these things; not by virtue of any general authority to take to itself the management of the local concerns, but because the inauguration and modification of local government can only be provided for without confusion and injustice by the aid of the guiding and assisting hand of the authority that creates and modifies. The right in the state is a right, not to run and operate the machinery of local government, but to provide for and put it in motion." This seems to be the very principle recognized by the framers of the constitution and carried into effect by the aforesaid amendment to that instrument. And it may well be said that while general legislation as to municipal affairs is there prohibited, yet at the same time the very same section of the constitution reserves to the state, not the right "to run and operate the machinery of local government," but the right to provide for and put that machinery into motion. In People v. Oakland, 123 Cal. 604, it is held that a general law providing for the manner of annexing adjacent territory to a municipality did not deal with "municipal affairs," and was, therefore, without constitutional objection. It would seem that the adding of adjacent territory to a municipality and bringing the inhabitants of that territory within the government of the municipality was a matter of great moment and interest to the municipality. Yet it was held not to be such a municipal affair as contemplated by the constitution. This court there said: "As the legislature alone has the power to authorize such annexation, it must have the power to prescribe the terms, conditions, and mode of annexation." This language applies with full force to the question under discussion in the case at bar.

The charter act of 1897 is neither special legislation, nor does it lack uniformity of operation. The title of the act itself stamps the law as general legislation. The title purports upon its face to deal with a class of municipalities created by section 8 of article XI of the constitution. Legislation bearing upon a constitutional class of municipalities is not special legislation. The authorities in this state without exception so declare the law. Again, the act applies to all municipalities that are authorized to adopt freeholder charters. Such municipalities intrinsically constitute a class in themselves, and probably even in the absence of constitutional classification could be dealt with by general laws, but, in view of the constitutional classification, it cannot be denied for a moment but that legislation relating to such a class is both general and uniform. (Mintzer v. Schilling, 117 Cal. 361.)

It is not a light thing to set aside an act of the legislature, and the rule is elementary that unless it is perfectly plain that such act is violative of constitutional provisions a court will uphold it. With the policy of the legislation found in the act the court has nothing to do. This legislation may be wise or unwise. That is a matter with which the court has no concern. It is for the court alone to declare the law void or valid, and that declaration must rest upon the test, namely, Is this act clearly violative of some constitutional provision? In other words, the real question here is, Does it plainly and clearly appear that these two elections constituted "municipal affairs," within the meaning of those words as used in the constitution? In view of what has been said, we are not prepared to make that declaration.

The judgment and order are affirmed.

Van Dyke, J., and McFarland, J., concurred.