McKinstry, J., dissenting. I dissent. The question
presented is, Was the act “to establish a police court in the city of Oakland, and define its jurisdiction, duties, and fees of court and its officers,” approved March 10, 1866, and the acts supplementary thereto and amendatory thereof, repealed by the act entitled “An act to provide for police courts in cities having thirty and under one hundred thousand inhabitants, and to provide for officers thereof,” approved March 18, 1885?
The act of March 10, 1866, as supplemented and [448]amended, was part of the charter of the city of Oakland prior to the adoption of the present constitution. Upon that subject I fully concur with the views of Hon. W. T. Wallace, judge of the superior court of San Francisco (late chief justice of the supreme court), as expressed in his recent decision in Ex parte Casselli. That learned judge said: “It [the act of 1866] provided for the election of a police judge‘at the charter election of 1867/ and that in the mean time the office should be filled by an incumbent to be elected by the ‘city council of Oakland.’ The police court thus, established, and its in-cumbency thus provided for, had a jurisdiction local and criminal, coterminous with the boundaries of the city,embracing certain offenses when committed therein,— these were all cases of petit larceny, .... and ‘ all proceedings for violation of any ordinance of said city/ etc. It was vested beside with a civil jurisdiction, also local to the city,—actions for the collection of taxes and assessments ‘levied in said city for city purposes’; or for the erection or improvement of school-houses and of public buildings; laying out, opening, and improving streets, sidewalks, lanes, alleys, etc.,—the purchase or improvement of public grounds, etc. In short, without further reciting the provisions of the act, it is seen to have been in its entire scope distinctly municipal in character, spending its whole force upon the government, civil and criminal, of the city of Oakland and the regulation of its . internal municipal affairs.” Again: “Had its title been ‘An act to amend the charter of the city of Oakland/ instead of ‘An act to establish a police court in the city of Oakland/ there can be little doubt that it would have equally well comported with the substance and body of the act.....But the distinctive character of a legislative act is to be determined by the substance or its provisions as found in the body of the statute rather than by reference to the phraseology of the title prefixed. Especially is this so in considering the legislation occur[449]ring under the former constitution of the state. Under the legislative practice then prevailing, the title was rarely a matter of legislative debate or scrutiny,” etc. .(Citing Adams v. City and County of San Francisco, 50 Cal. 118.) And, after further argument and illustration, the learned judge concludes that the act of March 10, 1866, was incorporated into and became part of the municipal charter of the city of Oakland.
In the same decision, Judge Wallace, conceding what .in his view it was not necessary to dispute,—that by the sixth section of article 11 of the constitution the charter of the city of Oakland was subject and controlled by general laws, even such as might change the constitution of all municipal organizations existing when the state constitution was adopted,—proceeds to prove that the act of March 18, 1885, entitled “An act to provide for police courts in cities having thirty thousand and under one hundred thousand inhabitants, and to provide for officers thereof,” was not a general law, within the meaning of the constitution. “ Cities and counties ” and “ towns ” are omitted both from the title and body of the act. “ Cities with population between thirty thousand and one hundred thousand inhabitants’ are the only municipalities selected for the operation of the act; ‘cities and counties’ with population between thirty thousand and one hundred thousand are omitted altogether; so are ‘towns,’ regardless of population.” (Ex parte Casselli.)
For myself, I am of opinion that the "general laws,” mentioned in the last clause of section 6 of article 11 of the constitution, do not include laws which change the charters of cities organized before the adoption of the -constitution. As said by Mr. Justice Sharpstein, in Staude v. Election Commissioners, 61 Cal. 325: "It is clear to my mind that when the constitution declares .that cities organized before its adoption shall be subject to and controlled by general laws, it means as to mat-[450]tors not specially provided for in charters which existed at the date of the adoption of the constitution. Otherwise, they would be subject to, and controlled by, general laws passed for the incorporation of cities and towns, without having first voted to organize under such laws.”
The sixth section of article 11 of the constitution reads: “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. 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 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.”
The city of Oakland, in my opinion, is not subject to, nor controlled by, the act of March 18,1885, even if that act can be treated as in any sense a general law.
Assuming that the framers of the constitution did not intend to insert contradictory provisions in the same section,—that, after having declared that cities or towns organized before the adoption of the constitution should not be brought within the operation of the general laws providing for the incorporation, organization, and classification, in proportion to population, of cities and towns without the consent of a majority of their electors,—they did not intend immediately afterward to declare that cities and towns existing before the adoption of the constitution should be subject to and controlled by such general laws. Section 6 of article 11 is not difficult of interpretation.
1. Corporations for municipal purposes may not be created by special laws.
[4512]. The legislature must provide by general laws for the incorporation, organization, and classification, in proportion to population, of cities and towns, which (general laws) may be altered, amended, or repealed. (The general laws under which, after the adoption of the constitution, cities and towns are to be incorporated and organized, must provide for the classification according to population of the cities and towns incorporated and organized under them.)
3. A city or town organized while the former constitution was in force may become organized under the general laws passed by direction of the present constitution for the incorporation, etc., of cities and towns, whenever a majority of its voters shall so determine. (And it cannot be made subject to such general laws, or any part of them, without the consent of a majority of its electors.)
4. A city or town, organized under the general laws for the incorporation of cities and towns, cannot be made subject to any statute changing its organization, except the statute is amendatory of the general laws under which it was incorporated, and is a statute operative, at least, upon all of its class, as cities and towns are classified under such general laws.
5. The legislature has complied with the mandate of the constitution by the enactment of the law of March 2,1883, “to provide for the classification of municipal corporations,” and the law of March 13, 1883, “to provide for the organization, incorporation, and government of municipal corporations.” (Stats. 1883, pp. 24, 93.)
The first of these acts provides: “ All municipal corporations within this state are hereby classified as follows: Those having a population of more than one hundred thousand inhabitants shall constitute the first class; those having a population of more than thirty thousand and not exceeding one hundred thousand inhabitants shall constitute the second class,” etc.
[452]The act of March 18, 1885, which is claimed to be operative in the city of Oakland, attempts to create a single class for a particular purpose,—a different class from any provided for in the general law, passed in obedience to the behest of the constitution for the classification of municipal corporations. It attempts to provide for a police court in every city “having thirty thousand and under one hundred thousand inhabitants.”
If the act of March 18, 1885, is a general law, within the meaning of section 6, article 11, of the constitution, it applies to all cities, whether organized before the adoption of the constitution or afterward under the general laws of 1883, having a population of thirty thousand and less than one hundred thousand. It applies to all of that supposed class (at least), or it is not a general law. But will any one contend that after general laws have been passed for the incorporation, organization, and classification of cities in proportion to population, the legislature may create, not merely a new classification of all cities and towns for a special municipal purpose, but a single class, differing from any included in the general classification, for a special municipal purpose?
6. If, however, the act of March 18, 1885, can be treated as operative with respect to cities of the second class, formed under the general law of 1883, it constitutes an amendment of the general law providing, for the incorporation, etc., of cities. An amendment is incorporated into and becomes a part of the statute amended. It seems very plain that inasmuch as the city of Oakland, created before the adoption of the constitution, cannot be forced to organize under, or be subject to, the general laws for the incorporation, organization, and classification of cities and towns without the consent of a majority of its electors, it cannot be made subject to a part of such ° general laws for the incorporation of cities and towns without- the consent of its voters. If it can, the city of [453]Oakland may, without the consent of a majority of its voters, by means of a series of amendments of the general laws providing for the incorporation, etc., of cities, be transferred entirely under the regime of such general laws.
It being morally demonstrable that the “ general laws ” to which cities and towns organized before and after the adoption of the constitution are subject are not laws which would change the provisions of charters existing prior to the adoption of the constitution, full force and effect may be given to the last clause of section 6, article 11, by holding it to refer to laws general as opposed to local laws, or such as are limited in their operation to certain places, as to all or a particular class of cities and towns. Upon this matter I have nothing to add to what I had occasion to say in Thomason v. Ashworth, 73 Cal. 73. A city is a collective body of inhabitants, incorporated, etc. The citizens are incorporated, —the charter is their charter. They are subject to general laws, in common with all the citizens of the state. But a law operative only in one, two, or all cities, is not a general law within the meaning of section 6 of article 11, but is a local law.
I dissented from the opinion of the court in Thomason V. Ashworth, and I should not deem it necessary to dissent from the decision of a majority of the justices herein, were it not that, in my view, there is a clear distinction between that case and this. Previous to the decision in that case this court had held that a certain provision of the constitution had “struck dead” the street law of 1872,—part of the charter of San Francisco.
If, as had been held by a majority of this court, the street law of 1872, part of the charter of San Francisco, was struck dead on the first day of January, 1880, then there were no provisions in the charter of San Francisco relating to or providing for street work, when the “ street law ” of 1885 was passed. (Stats. 1885, p. 147.)
[454]The street law of 1885, held valid in Thomason v. Ashworth, did not, therefore, interfere with or repeal any express provision of the statutes incorporating or organizing the city and county of San Francisco. But the case here is different. The act of March 10, 1886, to “ establish a police court in the city of Oakland,” was in full force and effect, as part of the charter of the city of Oakland, when the statute of March 18, 1885, “ to provide for police courts in cities having thirty thousand,” etc., was passed. If the last act became operative in Oakland, it altered, in a matter of most material concern, the city government there existing.