Sharestebst, J., dissenting: I dissent. The principal, if not the only ground relied upon by those who deny the constitutionality of the “ Traylor Act,” is that it contravenes subdivision 27 of § 25 of article iv of the Constitution. That clause reads as follows: “ The Legislature shall not pass local or special laws providing for the management of common schools.” If this act does not provide “ for [496]the management of common schools,” or is not a “ local or special ” law, it is not obnoxious to the objection that it violates that clause of the Constitution.
The first question which I shall consider is, whether or not the “ Traylor Act ” is a law “ providing for the management of common schools.” If it is, I think that it should be held unconstitutional, on the ground that the subject of the act is not expressed in its title. (Const. § 24, art. iv.) The act is entitled, “ An Act to add a new section to the Political Code, to be known as section one thousand six hundred and eighteen, relating to salaries of school teachers in cities having one hundred thousand inhabitants or more.” If this title was selected to express the subject of an act “ providing for the management of common schools,” it seems to me that the Legislature could not have gone much wider of the mark. I do not think that any one would expect to find, under that title, anything providing for the management of common schools, nor do I think that this act contains any such provision. It relates to teachers’ salaries, and the salaries of teachers have about as much to do with the management of common schools as the salaries of judges have to do with the administration of justice. If this act had been entitled “ An Act to add a new section to the Political Code, to be known as section one thousand six hundred and eighteen, providing for the management of common schools in cities having one hundred thousand inhabitants or more,” the title would have expressed what is now claimed to be the subject of the act. But I cannot help thinking that the inappropriateness of such a title, if it had been placed at the head of this act, would be patent to every one who should read both the title and the act. The Legislature may, if it sees fit, increase the salaries of the Judges of the Superior Courts of this State. If such an act is ever passed, I do not think that it will be entitled “ An Act to provide for the management of courts of justice,” and yet it would be quite as much an act providing for their management as this is “ for the management of common schools.” It does not seem to me that an act which should authorize some school district to erect a school-house would be an act providing for the management of common schools. And yet the sums paid for the erection of school-houses enter quite as much into the management [497]of the schools as the salaries paid to teachers. It is just as necessary to have school-houses as it is to have teachers. People may be educated without either of them. But the management of a school is a matter entirely distinct from the building of school-houses or the payment of teachers; and I think that the constitutional prohibition against the passage of local or special laws providing for the management of common schools relates solely to the manner of conducting such schools, and that it simply prohibits the passage of any local or special law, prescribing the manner in which common schools shall be conducted. It would be strange if it were otherwise. No one doubts the impracticability of having the salaries of teachers generally fixed by the Legislature. And yet it is made its duty to provide a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established. (Const. § 5, art. v.) Now it is conceded that the Legislature might, by the passage of a general law, directly fix the salaries of teachers. It is denied, however, that the Legislature can fix them in any district unless it does so in all the districts; which, as we have observed, is impracticable. If this position be correct, it is in the power of any district in the State to defeat the provision that requires that a free school shall be kept up in each district, by refusing to pay salaries sufficient in amount to secure the services of teachers. If the Constitution had left it optional Avith the inhabitants of each school district to have a free school or not, this point Avould be Avithout force. But, in the absence of that option, I do not believe that the constitutional requirements can be so easily defeated.
Tiie next question is, whether the Traylor Act is a local or a special kvw Avitliin any Avell-settlcd definition of the terms local or special laAvs. I do not think that it is.
1. The doctrine is elementary that an amendment of a statute by a subsequent act operates precisely as if the subject-matter of the amendment had been incorporated in the prior act at the time of its adoption, so far as regards any action had after the amendment is made. Under that rule the “ Traylor Act ” must be viewed in the same light hoav, so far as this case is concerned, as it Avould be if it had constituted a part of the original act at, [498]the time oí its passage. The Political Code, as amended by the “Traylor Act,” provides a system by which a free school shall be.kept up in and supported in each district of the State. Among other things, it fixes the compensation of teachers in consolidated cities and counties of one hundred thousand or more inhabitants, and confers the power to fix their compensation upon the boards of education of cities of a less population, and upon the trustees of schools in districts outside of cities and consolidated cities and counties. If I am correct, in regarding the section added by the Traylor Act as if it had been in the original act at the time of its passage, it is impossible for me to perceive why it should be more obnoxious to that objection than one which confers the power to fix the compensation of teachers upon hoards of education in cities containing a population of less than one hundred thousand, or the one which confers the same power upon boards of trustees in school districts. Each of these clauses is different from either of the others in respect of tho body by which the compensation is fixed, and to be fixed. If one can be detached from the context and be pronounced special or local, may not cither of the other two' be subjected to tho same process ? The chapter of the Code which relates to tho establishment and support of common schools, is undoubtedly a general law within any known definition of that phrase.
2. As an independent act, it seems to me that the “ Traylor Act ” should be held to be a general law. Neither the term “ special law ” or “ local law ” has been defined with the exactitude that most law phrases have been. Perhaps neither is susceptible of a very nice definition. Cases are not wanting, however, in which particular enactments were held to be special or local, and others to be general. In Holland’s Case, it is said: “ The rule of law is, that of general statutes the j udges ought to take notice, although not pleaded—otherwise of special or particular statutes.” (4 Co. 76 a.) In Indiana, it has been held that a special law “ is such as at common law the courts would not notice, unless it were specially pleaded and proved like any other fact.” (High v. The State, 24 Ind. 28 ; Toledo etc. Ry. Co. v. Nordyke, 27 id. 95.) . In the same State, it was held that a law which related to a particular class of cases, and to them aloné, was not a special law. (Hymes v. Aydelott, 26 [499]Ind. 431.) One clause of a section of a statute of ¡New York provided, that thereafter all actions against the mayor, aider-men, and commonalty of the city of ¡New York should be brought in the Supreme Court, and that that court should have exclusive cognizance of such actions. The Superior Court held that it was essentially public in its object and purposes, and not private or local. (Bretz v. Mayor etc. of New York, 6 Rob. [N. Y.] 325.) Of an act entitled “An Act in relation to the payment and compensation of certain officers in the city and county of New York,” the Superior Court said: “We do not feel warranted in holding that the act in question is local, within the meaning of the Constitution.” (Connor v. The City of New York, 2 Sand. 355.) And when the same case was before the Court of Appeals, (1 Seld. 285) Foote, J., said : “Begulating the amount and manner of paying the officers, or a given number of the officers of a county of this State, for their official services, when such services are rendered in and form part of the administration and execution of the laws of this State, and affect the citizens thereof who come within their range, can neither be private nor local in the view contemplated by the Constitution.” An act relating to roads in Baltimore County was held not to be a special law in any sense of the term. (Webster v. County Commissioners etc. 29 Md. 516.) The Constitution of Pennsylvania provides that “ the General Assembly shall not pass any local or special law *' * * regulating the affairs of counties, cities, townships, wards, boroughs, or school districts, * * * nor shall they indirectly enact such special or local laws by the partial repeal of a general law.” It was held, however, that a law applicable to cities containing a population exceeding 300,000, although there was only one city in the State having that number of inhabitants, was constitutional. (Wheeler v. Philadelphia, 77 Pa. St. 338.) In that case, the Court said: “ The true question is, not whether classification is authorized by the terms of the Constitution, but whether it is expressly prohibited.” The Court further said: “That a statute which relates to persons or things as a class, is a general law.” A case involving a similar question, afterward came before the same Court, and it said: “We adhere to that decision ( Wheeler v. Philadelphia, supra) and indeed, cannot see
It was urged on the argument in behalf of respondent, that the power to fix the salaries of teachers is given to the Board of Education by the Consolidation Act, which constitutes the charter of the municipal corporation of the City and County of San Francisco. I think that the counsel mistakes the fact. The act under which I understand that the respondent claims to derive its power to fix the salaries of teachers is entitled “ An act to provide for the support of the Common Schools of the City and County of San Francisco, and to define the powers and duties of the Board of Education thereof,” approved April 1st, 1872. If I am correct as to the fact, the maxim, “Leges posteriores priores contrarias .abrogant,” would seem to apply in this case.
The question whether the provisions of this act, if opposed to any of the provisions of the Consolidation Act, should be held to repeal such repugnant provisions of the latter act, does not arise in this case. That the Consolidation Act cannot be repealed or amended by any general act of incorporation until a majority of the electors of the City and County of San Francisco determine to become organized under such general act, seems to me to be sufficiently clear; and that is as far as the dictum in Desmond v. Dunn, as I understand it, goes. The case at bar presents this state of facts:
The Legislature, in 1872, conferred the power upon the respondent to fix the salaries of teachers, and in 1880 the Legislature took that power away from the respondent, and resumed the right which it always had of directly exercising that power itself. It is urged, however, that the Legislature could not accomplish this by amending the Political Cede in the manner in which it is attempted to be done in the Traylor Act. This raises a very serious question, as a very large proportion of all the enactments of the late Legislature are of the same character. I now have before me a volume entitled “ Acts Amenda[501]tovy of the Codes,” and it seems to me that they are all obnoxious to the same objection as the Traylor Act. In a clear case this would not be entitled to any weight, but in a case of doubtful construction, it should have great weight.
I am, therefore, of the opinion that the judgment of the Court below should be affirmed.