The board of election commissioners of San Francisco directed that an election for freeholders to frame a charter for that city and county be held December 27, 1897, and a board of fifteen freeholders having been chosen upon that day, a charter framed by them was submitted to the voters of the city and county at an election held therefor under the direction and control of the board of election commissioners on the twenty-sixth day of May, 1898, and, having received a majority of the votes cast at that election, was approved by the legislature on the twenty-sixth day of January, A.D. 1899. Under a provision therefor in the charter this board of election commissioners has directed that an election be held on the seventh day of November, 1899, to fill certain offices named in the charter. The plaintiff herein, a taxpayer of the city and county, brought the present action to enjoin certain of its officers from incurring any expense in holding said election, and from paying out or disbursing any of the public moneys for any expense that may be incurred in holding the election upon the ground that the elections at which the freeholders were chosen and upon the adoption of the charter framed by them were illegally held, and for that reason the charter, never having been legally adopted, was invalid.
After the board of election commissioners had directed the election for the freeholders, it caused the city and county to be redistricted into special election precincts for the purpose of said election, and consolidated the three hundred and thirteen general election precincts into which the city had been divided for the last preceding election into ninety-four special *Page 392 election precincts, and designated one polling-place within each of said special election precincts, and held this election and also the one upon the adoption of the charter in the same precincts. Prior to the holding of each of said elections the board of election commissioners provided for supplemental registration at the office of the registrar at the City Hall, but made no provision for precinct registration. Before the consolidation of the precincts as aforesaid the board passed a resolution that the special election for freeholders should be conducted in accordance with the act relating to the election of freeholders and charters, approved March 31, 1897 (Stats. 1897, p. 288), and that the number of votes for each special election precinct be estimated at seven hundred and fifty, or as near thereto as possible.
The superior court rendered judgment in favor of the defendants, and from this judgment and an order denying a new trial the plaintiff has appealed.
The grounds urged in support of the appeal herein are that the act of 1897 is unconstitutional, and that inasmuch as the elections for freeholders and upon the adoption of the charter were held in conformity with the provisions of this act instead of under the provisions of the act entitled, "An act to regulate the registration of voters and to secure the purity of elections in the city and county of San Francisco," passed March 18, 1878, they were invalid, and that the charter adopted thereat was invalid and confers no authority to hold an election for the officers therein named. The particulars in which the invalidity of the elections is urged are that the board of election commissioners had no authority to consolidate the election precincts or to omit precinct registration, and that they did not appoint proper election boards for the precincts in which the elections were held.
The act of 1878 was a special act relating to San Francisco alone, and at the adoption of the constitution of 1879 formed a part of the charter of that city and county. By its provisions the conduct, management and control of elections and matters pertaining to elections was taken from the board of supervisors, which, under the Political Code, then exercised this power throughout the state, and was conferred upon the board of election commissioners therein created. Section 6 of article XI of the constitution of 1879, as originally adopted, after directing the legislature to provide, by general laws, *Page 393 for the organization of cities and towns, declared that "cities or towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, shall be subject to and controlled by general laws." In Staude v.Election Commrs., 61 Cal. 321, it was said that the effect of this section was that San Francisco "shall be subject to and controlled by such general laws as the legislature shall enact, other than those for the incorporation, organization, and classification in proportion to population of cities and towns." The Political Code is a general law whose force extends throughout the state, and, in the absence of any qualifying words, the legislature must be deemed to intend that its provisions shall have uniform operation in all parts of the state, and it was held in the case just cited that an amendment to section 4109 of the Political Code, by which the time for the election of all city and county officers was made uniform throughout the state, superseded a provision in the charter of San Francisco providing a different time for the election of those officers within that city and county. In 1889, the legislature amended several sections of this code relating to elections by extending their provisions to each of the counties and cities and counties of the state, and by placing every board having charge and control of elections in the same category with the board of supervisors in each of the counties of the state, and making the same provisions for cities and counties as for counties. By so doing it is manifest that it was the intention of the legislature that its provisions should be operative in San Francisco. The city and county of San Francisco was the only political subdivision of the state in which any board other than the board of supervisors had the control and management of elections, and, as was said in Staude's case, we know judicially that it was the only city and county in the state. To the extent, therefore, that these amendments are inconsistent with or variant from the provisions of the act of March 18, 1878, the latter is superseded, and the city and county is subject to and controlled by the provisions of the Political Code.
By the act of 1878 the board of election commissioners was required to divide the city and county into election precincts "as soon after each general election as convenient, not to exceed ninety days." By the amendment to section 1127 *Page 394 of the Political Code the board is required to divide the city and county into election precincts "as soon before a general election as is convenient." Section 1129 of the code as originally enacted gave to the board of supervisors in each county authority "from time to time to change the boundaries of, create new, or consolidate established precincts," but there was no provision in the act of 1878 for changing the boundaries of the election precincts, when once made, until after another general election. Section 1129 was, however, amended in 1889 to read as follows: "The board of supervisors or other board having charge and control of elections in each of the counties and cities and counties of the state may, from time to time, change the boundaries of, create new or consolidate established precincts; provided, that there shall always be as many precincts as shall be sufficient to make the number of votes polled at any one precinct to be not more than two hundred as nearly as can be ascertained."
Under this section, as thus amended, the authority of the board of election commissioners of San Francisco prior to the adoption to the amendment to section 6 of article II of the constitution, in 1896, to consolidate established precincts is without question, and, unless that amendment has taken from them this authority, they must be held to have been authorized to consolidate the precincts for the purposes of the elections herein considered.
In 1896 the above clause in section 6 of article XI was amended to read as follows: "Cities or towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of the constitution, except in municipal affairs, shall be subject to and controlled by general laws." It is contended by the appellants that the elections for freeholders, and upon the adoption of the charter, proposed by them, were "municipal affairs," and were therefore not subject to or controlled by general laws.
The construction of the section as thus amended involves a determination of the meaning to be given to the term "municipal affairs," as used therein. The term "affair" is a word of wide import, and has been held to be more comprehensive than the word "business." (See Morrison v. Bachert, 112 Pa. St. 322.) Although it may be difficult to give a definition *Page 395 of the term "municipal affairs," as used in this section, which will be exhaustive or precise; it cannot be held that the effect of the amendment is to preclude the legislature from enacting laws relating to matters which might be made the subject of municipal control, or that all municipalities are exempt from all general laws which the legislature may enact. It has been decided so frequently, that it may be said to have become a maxim in jurisprudence, that a municipal corporation has only such powers as are given to it by its charter, and that it must find authority in its charter or under some general law for every municipal act which it may perform. The municipal affairs of any individual municipal corporation are, therefore, such affairs only as that municipality has the power to engage in or perform, and the municipal affairs of one city may vary greatly from those of any other city — and this, too, whether the charter of the city has been conferred upon it by the legislature or has been framed by a board of freeholders of its own choice, and afterward adopted by its citizens and approved by the legislature. In either case, the municipality can exercise only the powers found in its charter. If, however, the charter of a city, whether given to it by the legislature prior to the constitution of 1879, or framed by a board of freeholders, contains no provision in reference to subjects which might have been included therein, that city or its inhabitants is not thereby freed from legislative control. The legislature is vested with the law-making power of the state, and the general laws passed by it have force in all parts of the state, unless, by virtue of some provision in the constitution, such effect is limited, or the law-making power has been lodged elsewhere. A city cannot claim to be exempt from general laws relating to municipal affairs if there is no provision relating to such affairs in the charter under which it is acting, whether such charter is one framed by itself or was given to it by the legislature. If, in framing its charter, its board of freeholders should make no provision for a public library, or for the improvement of its streets, the general laws upon those subjects would be operative within that city. It is not within the constitutional power of the legislature, by approving a freeholders' charter which fails to make provision upon subjects pertaining to municipal affairs, to exempt that city *Page 396 from being subject to legislative control in reference to those subjects, nor can the city secure exemption from such control by omitting to make such provision in its charter. If, by adopting a charter which failed to give to it power to act upon affairs which are properly municipal, a city could be freed from any legislative control in reference to those affairs, either by itself or by the legislature, that city would become a veritable Alsatia.
Under these considerations it must be held that the exception in the above clause in section 6 of article XI placed there by the amendment of 1896, applies only to such municipal affairs as are within the power of the particular municipality to perform, and that every city in the state is subject to and controlled by general laws relating to municipal affairs, unless, by virtue of some provision of the charter under which it exists and is acting, such municipal affairs may be engaged in and performed by it. The clause is to receive a distributive construction, and is to be read as if its language were: "Any city or town heretofore or hereafter organized, and every charter thereof framed or adopted by authority of this constitution, except in its municipal affairs, shall be subject to and controlled by general laws."
We have seen that the provisions of the act of March 18, 1878, relating to the division of San Francisco into election precincts, were superseded by the amendments to the Political Code in 1889, and that from that date these provisions of the Political Code constituted the only law upon that subject which was applicable to San Francisco. It may be conceded that each of the elections herein considered, as well as the creation or consolidation of the precincts at which the elections were held, is a "municipal affair," but, as since the amendment to the Political Code in 1889 there has been no provision in the charter of San Francisco relating to the creation or consolidation of election precincts, the city was subject to and controlled by the general laws existing in reference thereto. Section 1129 of the Political Code was in force within the city and county of San Francisco at the dates of these elections, and under this section the consolidation of the election precincts for the purpose of these elections was within the power conferred upon the board of election commissioners. *Page 397
Inasmuch as the board had the power to consolidate the precincts "from time to time," as might seem to it desirable or proper, this power was not diminished or its exercise impaired by the fact that the board purported to exercise it under the act of 1897. If it had authority to consolidate the election precincts irrespective of this statute, it had the right to adopt its provisions in this respect as the basis of its consolidation, even though the legislature had no authority to enact the statute. It is unnecessary, therefore, to determine whether this statute is obnoxious to the charge of being special legislation, or whether it was within the power of the legislature to enact.
The provision in section 1129, that the precinct shall be sufficient "to make the number of votes polled at any one precinct to be not more than two hundred, as nearly as can be ascertained," is not to be regarded as jurisdictional, but is merely directory. The concluding clause, "as nearly as can be ascertained," shows that much is left to the discretion of the board, and, in the absence of any showing that by reason of a failure to observe this direction the fairness of the election or the completeness of the vote was affected, the act of the board in making the consolidation must be upheld. The finding of the court that at least one week before either election was held a written notification was mailed to each and every elector in the city and county whose name appeared upon the register informing him specifically of the exact location of the polling-place in his special precinct, and inclosing therewith a sample of the ballot to be used at said election, takes away all claim of any want of notice to voters. It is not claimed that the board acted in bad faith, or that any citizen was deprived of his vote, the only claim being that by reason of the registered vote within each of said precincts being much greater than two hundred, the board must be presumed to have abused its discretion in consolidating the precincts in the manner it did.
We need not determine whether this provision in section 1129 is to be construed as requiring the registered vote to be the criterion for fixing the extent of the precincts, or whether the board had the right to fix their extent upon its estimate of the number of registered votes which would be polled at the election. The wording of the section is such that the *Page 398 board might act in good faith in making the number of precincts such as in their opinion would make the number of votes which would be polled at each precinct not more than two hundred. It was competent for any citizen if he deemed the boundaries of the precincts to be in violation of this clause in the section, to seek their correction prior to the election. He ought not after the election has taken place to be allowed to impeach it upon this ground alone, unless he can show that by reason thereof a fair election was prevented.
There is no express provision in the act of 1878 directing precinct registration to be had for special elections, and a consideration of the entire act leads to the conclusion that such registration is not authorized. Section 20 of the act requires the boards of precinct registration to meet in their respective precincts, "commencing five days before the day fixed by this act for the cessation of registration of electors in said city and county, and to sit in open session from 9 o'clock A.M. until 10 o'clock P.M. of each day until the day of such cessation"; and by section 22 they are required to continue registration of voters within their respective precincts "until the time provided by law for registration to cease"; and by section 24 to deliver the precinct registers to the registrar "not later than three full days after the cessation of registration, as provided by law." Section 28 declares: "Fifteen days before a general election all registration or enrollment of voters shall cease, and the precinct registers as they stand shall be the precinct registers for said ensuing election and until the next general election," subject only to changes in certain cases; and at the close of this section it is provided that changes and additions to said precinct registers for use at other than general elections may be made after the general election and prior to any special election, "under the regulations fixed by the board of election commissioners." Under a proper construction of these provisions, registration for a special election is to be made under regulations fixed by the board of election commissioners, and need not be made in the several precincts. The provision in section 31 that the additional names shall be "noted upon the register for each special election thereafter or added in supplements thereto, and conformatory so far as the same is applicable to the provisions *Page 399 of the law governing the making of the general election register," has reference to the manner of preparing the precinct registers for use at the special elections and not to the mode or time of registration. The provision in this section that after the voter has been legally registered in the precinct register, he may vote in such precinct at any election taking place before the next general election was for the purpose of giving him the right to vote at such election without renewing his registration, and not for the purpose of defining the place at which he should vote. His right to vote in the same precinct is subordinate to the right of the board of election commissioners to change that precinct or consolidate it with others, and is not impaired by such enlargement of its boundaries and fixing a different polling place within the boundaries thus extended.
A consideration of the spirit and object of the act of 1878 leads also to the same conclusion. The main purpose of the act, as shown by its provisions, was to secure a full registration of the voters of the city, with as little inconvenience to them as was practicable. For this purpose the act provides an extended period for registration at the office of the registrar, within which voters may be enrolled, and that at the close of this period those who have been unable to avail themselves of this opportunity may resort to some designated place within their respective precincts and there be registered. To still further accommodate the voters, they are not required to present themselves for precinct registration within the usual hours for public offices, but the act provides that the boards of precinct registration shall sit in open session each day of their session until 10 o'clock P.M. It must be assumed that in this mode the registration for a general election will contain the names of all who are qualified to vote, and as the registers thus prepared for use at the general election are to be used at all special elections that may be held before another general election, with such additions as may be made thereto, there is no manifest reason for requiring precinct registration in connection with any special election, and, in the absence of direct provision therefor, it should be held that it is not required. The few changes or additions that may be desired are readily to be made at the office of the registrar under the regulations of the board of election commissioners. *Page 400
The omission of the board of election commissioners to appoint for each precinct as many officers of election as it was authorized to appoint (a proposition upon which we pass no opinion), does not authorize the election to be set aside. Such omission was but an irregularity, and it is not shown that it had any effect upon the election, either in the number of votes that were cast, or in the correctness of their canvass and return.
The judgment and order are affirmed.
Beatty, C.J., and Henshaw, J., concurred in the opinion of Harrison, J.