Staude v. Board of Election Commissioners

Ross, J.: The question-in this case is whether, by virtue of the Act of the Legislature approved March 7, 1881, and commonly known as the-“Hartson Act,” an election of the elective officers of the City and County of San Francisco is required to be held at the general election to occur in November of the present year.

That the Legislature intended the provisions of the Act to apply to San Francisco is not denied. Indeed, it could not be successfully denied, for it provides in terms for the election of all elective county, city and county, and township officers, with certain enumerated exceptions; and we know, judicially, that San Francisco is the only “ city and county” within the State. The position of the respondents, however, is that the Consolidation Act of that city and county, which provides that the elections therein shall be held in the odd-numbered years, is unaffected by the provisions of the Act in question. And this, it is said, because of the provisions of the Constitution.

By Section 6 of Article xi. of that instrument it is provided that “ corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization and classification, in proportion to population, of cities and towns, which laws may be altered, amended or repealed.” This provision is clearly prospective. But the framers of the Constitution, recognizing the fact that there were municipal corporations [320]already in existence, provided in the same section as follows: “Cities and towns heretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall so determine, and shall organize in conformity therewith.” And by the succeeding section the provisions of the Constitution applicable to cities, and, also those applicable to counties, so far as not inconsistent or not prohibited to cities, are made applicable to consolidated city and county governments. If, therefore, the legislature has, by a general law, provided for the incorporation, organization and classification, in proportion to population, of cities and towns, or, if not, whenever it shall do so, the city and county of San Francisco may become organized under such general law whenever a majority of its electors voting at a general election shall so determine, and shall organize in conformity therewith. And until a majority of such electors do so determine, the Consolidation Act of the city and county can not be vacated or abrogated by any general act of incorporation. (Desmond v. Dunn, 55 Cal. 242.) But whether the city and county of San Francisco elects to organize under such general laws or to continue its existence under the Consolidation Act, it is subject to and controlled by general laws; for in the same section of the Constitution, in which the then existing city and town organizations are recognized, and the continuance of their existing charters permitted, it is 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.”