VAN DYKE, J.,
dissenting.—I dissent.
Martin
v.
Election Commissioners,
126 Cal. 404, fully expresses my views concerning the nature of the consolidated government styled the city and county of San Francisco. As was there pointed out, by the Consolidation Act passed in 1856 the act dividing the state into counties, so far as the same related to the formation of the county of San Francisco, was repealed, and the provisions of law defining the powers and duties of county officers, excepting those relating to supervisors, were considered as applicable to the officers of said city and cpunty of San Francisco, and all the property and property rights of the former city and the former county of San Francisco were transferred to and vested in the new corporate body designated the city and county of San Francisco. All the officers who, prior to that time, had been simply county officers, and those who had been purely city officers, were thenceforth alike officers of the new municipal corporation, and were thereafter neither officers of the city of San Francisco nor officers of the county of San Francisco. As remarked in the dissenting opinion in
Kahn
v.
Sutro,
114 Cal. 316, “In no sense can A be said that some were county officers and some were city officers. The sheriff and county clerk are as much officers-of the municipal corporation as the mayor or the police judge. Whatever may be said of their powers and duties, they are part and parcel of the corporate organization known as the city and county of San -Francisco.” At that time the legislature was not restricted by constitutional limitations, and could do just what it did do,—to wit, merge and consolidate the former city of San Francisco and the former county of San Francisco into one body, under the name and style of the city and county of San Francisco, and thereupon wipe out of existence each of the former public corporations.
The present constitution in many ways recognizes the existence of this consolidated local government. For instance, in the judiciary article it is provided that “there shall be in each of the organized counties, or cities and counties, of the
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state a superior court, for each of which at least one judge shall be elected by the qualified electors of the county, or city and county, at the general state election; provided, . . . that in the city and county of San Francisco there shall be elected twelve judges of the superior court”; and it is further provided for the classification of the twelve judges of the superior court of the city and county of San Francisco. But for the
county
of San Francisco, as distinguished from the subdivision of the state known as the- “ city and county,” no court is provided by the constitution, either court of record or inferior court, and no sheriff, clerk, or other officer incident to a court is therefore required. Judge Hager, chairman of the committee which reported the article of the constitution in reference to counties, cities, and towns, speaking in defense of the consolidated government of the city and county of San Francisco, said: “The tendency is to reduce the number of officers. Instead of having a set of city officers and a set of county officers, they are consolidated. We have a sheriff who is the sheriff of the county and of the city. We have a tax-collector and we have an auditor that acts for both. Formerly we had one for each. The tendency of .consolidated . government is to reduce the offices from two to one in every case, and reduce the expenses in every particular.”
Since the Consolidation Act there has not been, nor is there now, any county of San Francisco. Necessarily, there can be no officers of a county that does not exist. Besides, it was expressly provided that the officers formerly known and recognized as county officers were constituted officers of the new body politic, — to wit, the city and county of San Francisco,—and they have continued to be such up to and since the adoption of the present freeholders’ charter. Being officers of the city and county of San Francisco, recognized as such under the freeholders’ charter, they are subject to its provisions, the same as the officers who, before the consolidation, were known and recognized as officers of the city of San Francisco. Although
Kahn
v. Sutro,
supra,
was not overruled, in terms, in
Martin
v.
Election Commissioners, supra,
yet the effect is the same; the two cases are not in harmony, and cannot stand together.
A question had arisen whether so-called county officers were subject to the County Government Act, or whether they were officers of the consolidated municipal government, in like
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manner as though they belonged strictly to a city government, and one purpose, evidently, of the adoption of the new section 8i of article XI of the constitution was to set this controversy at rest, and the plain meaning of subdivision 4 of said new section is to put the so-called county officers in the same category as those formerly known as city officers.
Public policy favors local self-government, and the popular sentiment in this respect is constantly strengthening; this is manifest by the constitution of 1878-79, and by the repeated amendments thereto proposed by the legislature and adopted by the people. And it may also be said that the popular tendency is in favor of the merit system in the appointment and tenure of all subordinate officers in the civil service. Bearing these facts in mind, the court should adopt a liberal line of construction, and resolve all doubts in favor of such recognized public policy, and sustain the freeholders’ charter in its integrity, instead of weakening it in a vital part.
Temple, J., concurred in the dissenting opinion.
Rehearing denied.