Thornton, J., dissenting: I dissent. By virtue of the provisions of section 8 of article xi of the Constitution of this State, a privilege is given to the City and County of San Francisco to frame a charter for its own government “ consistent with and subject to the Constitution and laws of this State,” by causing a board of fifteen freeholders, with the qualifications prescribed in the section, to [620]be elected by the qualified voters thereof at any general or special election, whose duty it shall be within ninety days, etc., to prepare and propose a charter for such city, etc. The defendants claim to have been duly elected to prepare and propose the charter referred to, and this action is brought to test the validity of their election and their title to the office which they claim.
The case, then, turns on the validity of the election. Is it valid ?
This election was held by virtue of an order of the Board of Election Commissioners of the City and County of San Francisco, constituted and organized under an act of the Legislature entitled, “ An Act to regulate the registration of voters, to secure the purity of elections in the City and County of San Francisco,” approved March 18th, 1878. This order was made by a resolution of the board above mentioned, adopted on the 4th of March, 1880, which directed an election to be held on the 30th of the same month. By order of this board, the Registrar of Elections published a notice for registration, to continue from the 5th of March to the 15th of March, 1880, and on the 19th of March, 1880, the -board issued a proclamation of such election to be held on the day above mentioned, and notice was accordingly given.
The Board of Election Commissioners by its action fixed the day of election. If they had such power the election is valid, if they did not have it the election is void. ' It is settled by repeated decisions of the Supreme Court of this State, that no election is valid Avhere the time of holding it has not been fixed in advance by law. The latest case on the subject is Kenfield v. Irwin, 52 Cal. 169. The rule is thus clearly stated by the Court in this case. “ The time of holding an election, Avhether general or special, must be authoritatively designated in advance, either by laAv or by some means which the Ia>v has pu’escribed, otherwise the election is held Avithout authority, and is ineffectual for any purpjose.” The opinion further states that this rule is supported by a uniform line of decisions of this Court—and cites the following cases: People v. Porter, 6 Cal. 26; McKune v. Weller, 11 id. 49; People v. Martin, 12 id. 409; Westbrook v. Rosborough, 14 id. 180. (See also People v. Mathewson, 47 Cal. 442, and Sawyer v. Haydon, 1 Nev. 78.)
[621]Did then the Board of Election Commissioners have the power to fix the time at which such election was to be held ? Their powers arc derived entirely from the act of 1878, above cited. If we find no such power in the act, it does not exist. The portions of this act germane to the question are cited in the opinion of the Court. By its first section, such powers are given to the Board of Election Commissioners as were then vested in the Board of Supervisors of the city and county. An examination of the Consolidation Act and its amendments, and the Political Code, fails to disclose any such power in the Board of Supervisors on the 18th of March, 1878. Ho statute granting such power was brought to the notice of the Court on the argument. The §§ 33 and 34 of the Act of 1878, quoted in the opinion of the Court, confer no such power. Section 33 authorizes the Board of Election Commissioners to make all provision for carrying out the registration and election laws in the City and County of San Francisco. This refers to the laws then existing. It must be read together with the first section to arrive at the proper interpretation, and we find in the first section a restriction of the powers of the Board to such as were then vested in the Board of Supervisors. The same may be correctly stated as the meaning of the 34th section of the act. As we have seen, no law existed on the 18th of March, 1878, vesting any power to fix the day on which an election of any kind should be held in the Board of Supervisors, and it follows that no such power was vested in the Board of Election Commissioners.
In accordance with the rules laid down in the cases above cited, the election should be held void. What there is to take this case out of this rule wc cannot conjecture, unless .it can be maintained that the electors of the city of San Francisco as to the matter in question compose an autocracy independent of law and all legislative authority.
In the opinion of the Court, § 1056 of the Political Code is referred to. Admitting that this section was oven in force in the City and County of San Francisco, by its terms it confers no power to appoint the day for an election, but merely prescribes what shall be done, where such power exists and is exercised. But it is a matter of grave doubt whether it ever was [622]in force in the city and county referred to, under the provisions of § 19 of the Political Code. (See subd. 1 of § 19.)
Is the power of the Board of Election Commissioners enlarged by § 8 of art. xi? We cannot perceive that it is. The grant of power there is to the city in its corporate capacity, and not to the Board of Election Commissioners. The grant is not in terms to any agency, whether consisting of a board, a person, or a number of persons. It is a grant to the city, to be exercised by it in a lawful mode. If an election is to be held, or anything .else done under the grant, it must be in accordance with law.
We lay the more stress on the fact that this grant is made, by the express words of the Constitution, to the city, on account of the mode of legislation heretofore adopted in regard to the city. While the city is made a corporation by the Consolidation Act, it will be observed that in the Act of 1856, (Consolidation Act) and the acts supplementary and amendatory of it, the powers which would be styled corporate are vested in the Board of Supervisors.
The powers vested by the Act of 1878 in the Board of Election Commissioners are in their nature ministerial and executive. They merely pertain to the execution of the laws in existence. None of them are legislative. The power to appoint a time for holding elections is essentially legislative. It is an element in the policy of the State or community, and this policy is a matter on which the judgment of the law-making power should be and is to be exercised. Such matters are regulated by the Constitution or by some legislative authority. We say some legislative authority, because it may be by the local legislature of a municipal corporation. This delegation of power may be made by a general law. It is so treated in the Constitution. (See the following provisions; §§ 3, 4, 25, subds. 9, 11, of art. iv: § 20 of art. xx; § 10 of art. xxii.) Subdivisions 9 and 11 of art. iv place the subject of elections entirely under the control of the Legislature, with a single exception.
Now the city is a corporation of that character, whose powers are exercised through the medium of authorized officers or agents.- It is not like a New England town, whose inhabitants come together in mass meeting, but in a mode fixed by law, to perform corporate acts.
[623]The inhabitants of the city arc not authorized by any law to perform a corporate act in a meeting of its inhabitants en masse, by whatever mode called together. As was said by Shaw, C. J., in Warren v. Charlestown, 2 Gray, 101: “ The marked and characteristic distinction between a town organization and that of a city is, that in the former all of the qualified inhabitants meet, deliberate, act, and vote in their natural and personal capacities ; whereas, under a city government, this is all done by their representatives.” This is as true of an incorporated city in California as in Massachusetts.
Such a corporation can only act by its agents. Marshall, C. J., in Clark v. Corporation of Washington, 12 Wheat. 53, speaking of a power granted to the City of Washington, to authorize the drawing of lotteries for certain purposes, thus speaks of the manner in which the power is to be exercised : “ A corporation aggregate can legislate within its prescribed limits, but can carry its laws into execution only by its agents.” Again, in the same case, referring to the power granted, he said: “ It is to be exercised like other corporate powers, by the agents of the corporation under its control.”
This seems to be the general rule. In the various cases in which reference is made to the subject, the courts treat it as settled beyond contradiction. It is treated as an axiom, needing no authority to sustain it. In none of them is any authority cited, (See the following cases: Dey v. Jersey City, 19 N. J. Eq. 412; Baltimore v. Poultney, 25 Md. 18.) The rule is thus stated by Dillon in his work on Municipal Corporations: “ Where there is a council or governing body, the inhabitants or voters in their natural capacity have no power to act for or bind the corporation, but the corporation must act, and can be bound only through the meeting of this body.” (See 1 Dill. Mun. Cor. § 197; § 19, and cases there cited; see also § 208.)
The grant then being to the city, it must be. exercised by some authorized agent. By no express enactment, as we have seen, is power vested in the Board of Election Commissioners, nor do wc see any grant to this body by implication. There is much more plausibility in the contention, that the power vests in the governing body of the corporation—the Board of Supervisors—and this last would seem to be the pwopDCr agency through [624]which the power granted is to he exercised, in accordance with the rule as laid down by Mr. Dillon. In the case of the Central Bridge Corporation v. The City of Lowell, 15 Gray, 116, certain arrangements were, by an act of the Legislature, authorized between the two corporations, to be valid and binding when the act was accepted by them, “ at a legal meeting of the respective corporations.” The act came before the Supreme Court in Massachusetts to be interpreted, and the Court, by Shaw, C. J., said: “ That the acceptance by the Mayor, and Aldermen, and Common Council of the city'of Lowell, in due form, was a legal acceptance by the corporations, because it Avas done by their legally constituted representatives. All the powers of the city as a municipal corporation were vested in the City Council, except those, if any, specially and expressly reserved by the charter to be exercised by the people.”
In the case of the City and County of San Francisco, the powers of legislation which pertain to it as a corporation are for the most part vested in the Board of Supervisors. And it would seem that the power to fix the day for any election, which is in its nature legislative, belongs to the Board of Supervisors.
In executing this grant to the city, it cannot be denied that all the poAvers necessary to its proper execution vest in the corporation. A large discretion' is conferred on the corporate authority as to the mode in which this power is to be executed. (McCullough v. State of Maryland, 4 Wheat. 409.) It may be justly held that the proper interpretation of this grant of power by the Constitution is to empower the corporate authorities, whoever they may be, to exercise this discretion. It certainly pertained to some legislative authority to determine in advance whether the election should be held on the day of a general or special election; whether the freeholders should be elected by general ticket, or by districts; if by districts, how many districts there should be. A further matter to be considered and which would seem to be comprehended in a proper execution of the power, is this: whether or not the delegates elected should reside within the limits of the district from which such delegate or delegates are elected, or whether a delegate residing in any portion of the city may be chosen. On all these matters [625]the legislative judgment should be exercised, and the city, by its proper authorities, allowed the privilege of considering and adopting them or not, as may seem to them best.. Certainly, all these matters arc embraced in the grant.
The course resorted to in ordering the election, proceeds on the assumption that § 8 of art. xi is self-executing. The above considerations show that it is not.
In Austin v. G. C. & S. F. R. R. Co. 45 Tex. 234, a section of the Constitution of that State came before the Supreme Court to be construed. The section is in these words: “ The inferior courts of the several counties of this State shall have the power, upon a vote of two-thirds of the qualified voters of the respective counties, to assess and provide for the collection of a tax upon the taxable property, to aid in the construction of internal improvements, provided that such tax shall never exceed two per cent, upon the value of such property.”
The Legislature, to execute this provision of the Constitution, had enacted a statute. It was contended that this statute was unconstitutional, on the ground that the section quoted above determined the power and authority, and also the character of the aid to which it relates, and the manner and form in which it is to be extended. The Court say this as to the manner and form in which the power is to be executed: “ How, while it is beyond question that the counties in this State, when authorized by a vote of two-tliirds of the qualified voters, may aid in the construction of internal improvements, certainly the manner of doing so is not attempted to be defined or settled. Shall it be done by a direct donation of money or property; by the loan of the credit of the county; by the indorsement of the bonds or contracts of the company or parties engaged in such work, or by the county becoming a stockholder or participant in the enterprise ? Aid might be given in either of these ways, or in various others which might be suggested. The manner in which it shall be given, and the conditions and stipulations upon which it is done, are unquestionably left to be determined by the municipal authorities at their own discretion, or under the guidance and direction of general or special legislation. If the former is the correct conclusion, as is insisted by one of the counsel for appellees, there is no force in this objection. In our [626]opinion, however, the sounder conclusion is, that where there is a grant of power in the Constitution to a department of government, or to a constitutional or statutory officer, or tribunal, without defining the manner and form on or by which it is to be exercised and carried into effect, the Legislature may legitimately prescribe reasonable rules by which this may be done.” (45 Tex. 264-5.)
The above remarks are applicable to the manner and form in which the power here given to the city is to be exercised.
The Court further said : “ And though such power may not be taken away by the Legislature, and should it fail or refuse to legislate so as to provide for the efficient use and exercise of the power, the department, officer, or tribunal to whom it is delegated might possibly act in accordance with its own discretion, yet when the Legislature has made reasonable and appropriate provision for its proper exercise, it should and will be exercised in conformity with such provisions.”
It may be admitted that when the legislative authority fails to be exercised, (reference is here made to the State Legislature) the corporation may proceed to act in accordance with its own discretion, still that discretion should be exercised in the usual legislative mode, by ordinance or resolution passed in accordance with the provisions of the existing law. The corporate authority alone should act. And as such proceeding would be a corporate act, it should be performed by the governing body of the corporation; and not by any irregular or unauthorized movement of the electors residing within the corporate limits.
If such an act could be done by the inhabitants of the city who are qualified to vote, surely it should be done in some mode bearing the semblance of a legal method. If by a meeting, like the town meetings of the New England system, it should be called and held in accordance with some rules prescribed in advance. As to the New England towns, and the manner in which their meetings arc held, see 1 Dillon on Mun. Corp. § 11, and notes; §§ 204-7, and notes. The times at' which such meetings are held are fixed by law, and their method of procedure—and the legal provisions arc strictly enforced in passing on the validity of their proceedings. The cases cited in the notes referred to indicate this.
[627]It is not necessary, however, to decide whether the power to fix the day for holding this election pertained to the Legislature of the State or the Board of Supervisors. It is sufficient to hold, that the power was not vested in the Board of Election Commissioners.
It is a matter of no importance that a large vote was cast at the election of the 80th of March. This adds nothing to the validity of the election. Nor is it a matter to be considered that the election was fairly held. If the election was illegal, it was so far unfair as to demand judicial condemnation. In such a case it should no more be approved than if it had been fraudulently conducted.
The foregoing considerations lead to the conclusion that the election of the defendants was invalid, and, therefore, in my opinion, the judgment of the Court below should be reversed.