Fox, J., concurring. — I concur in the judgment, but do not concur in what is said in support of the proposition that the act of 1889 is in force in the city of Los Angeles. Of the written laws of this state there are four classes, each established in a different mode, and by a different body or branch of the government, and each equally binding upon the courts within its appropriate sphere.
1. The first of these is the constitution. This is established by the people of the whole state, acting in their collective capacity, and as to all other state laws is the supreme law of the land. The mode of establishing all other written laws of the state, or of any part of the state, is that, and that only, which is prescribed or permitted by this supreme law so established by the people. This law, in its operation upon the people as individuals, and upon every department of the government which is established by it, is made by its own terms mandatory and prohibitory, except when otherwise within it expressed. (Const., art. 1, sec. 22.)
2. The general statute laws of the state. By the constitution it is ordained that these must be established by the legislative department of the state government. The mode and manner of their passage is prescribed in sections 15 and 16, article 4. It must be by bill, and requires the concurrent action not only of the two houses of the legislature, but of the governor; or if he refuses to concur, then a consideration of his reasons and reaction thereon by both houses, and the concurrence of two [51]thirds of all the members elected to each house. Thus acting, the legislative department may establish necessary and appropriate laws upon all subjects, and for all purposes not in conflict with or prohibited by the constitution, and must establish laws upon certain subjects and for certain purposes named in the constitution. The term “general laws,” as used in all constitutions or statutes, has both a general or common, and a technical or restricted, meaning. In which sense it is used depends in each particular instance upon the context and the general scope of the instrument, or of that part of the instrument in which it is found. In one of these senses, that is held to be a general law which applies to and operates upon all of a given class of places or persons; in the other, that is a general law only which applies to and operates upon all persons and in all places alike.
3. Municipal charters, framed and adopted by the people resident within the municipality affected, acting directly, and in the manner prescribed in section 8, article 11, of the constitution. Such charters may be said to be general laws in that they apply to and operate upon all people within the territorial limits of the municipality alike; but they are special and local in that they have no force or effect outside of such territorial limits. Their establishment by the legislative department of the state government is expressly prohibited by the constitution. (Art. 11, sec. 6.) For the establishment of these laws the constitution takes from the legislature and delegates to the people of the municipalities respectively, when they shall see fit to exercise it, the power to frame and adopt the law, and in that way to establish a special and local law such as the legislature is forbidden to establish; the general law-making department of the state government having no power in the premises as such, but the members of the two houses of the legislature being required to express their assent [52]to or approval of the instrument as a whole, without alteration or amendment, before it becomes an established law. When so established and approved it is valid law, a part of the written law of the state, — as much so, and as binding upon the courts, as any act of the legislature; but, unlike an act of the legislative department of the state government, that department has no power ever to alter or amend it. Alterations or amendments of it, like alterations or amendments of the constitution, can only be made by the people by whom the original was adopted. So far as it is not in conflict with the constitution or the general laws of the state,— and by that I mean laws which operate upon all persons and in all places alike, — it is beyond the reach of the legislature, and “ supersedes any existing charter and all amendments thereof, and all special laws inconsistent with such charter.” (Art. 11, see. 8.) In my judgment, the word “ special,” as there used, includes all laws which are not general in the broadest sense; that is, all laws which do not operate upon all persons and in all places in the state alike.
4. The remaining class of written laws consists of municipal ordinances established by the legislative departments of the respective municipalities, and in the manner prescribed by their respective charters, or by the general law in cases where municipalities are acting under general law.
In dissenting from the opinion of my associates in this case, I concede that the several cases cited by Mr. Justice Works, heretofore decided by this court, contain expressions which in form justify the conclusion reached in his opinion; but this is the first time in which a case has come before the court directly involving a conflict on matters purely local and municipal between the provisions of a special charter framed and adopted by the people, as authorized by the constitution, and the provisions of an act of the legislature which is a “general [53]law” only in. the narrow and restricted sense of being a law which on its face applies to all municipal corporations. Being so, it furnishes the first and only opportunity which we have had of taking a broad and comprehensive view of the provisions of the constitution affecting municipal corporations. There can be no doubt that the court has always been correct in its expressions indicating that municipal corporations acting as such under the general municipal incorporation law must be governed by and conform to general laws of this class, which on their face affected and were framed to apply to all municipalities; for that is not only in conformity with the express provisions of the constitution, but also with the general interpretation of statutes. One act of the legislature will always repeal another and earlier which is in direct conflict with it on the same subject, unless expressly provided otherwise. But under the constitution, an act of the legislature will not repeal, and cannot repeal by implication or in express terms, the provisions of a special charter like that of Los Angeles, and other municipalities having charters framed and adopted by the people, and approved by the members of the two houses, unless it is done by force of some express provision of the constitution itself. I do not accede to the proposition that the court has been heretofore correct in holding that municipalities, acting under special charters granted by the legislature, before the adoption of the present constitution, and at a time when municipalities could only be established in that way, were governed by and their charters must yield to the provisions of laws which are general only in the sense that they apply to municipalities generally, and not elsewhere; but the court has so often so held, in considering statutes like the one sustained in this case by the leading opinion, that if this were the case of such a corporation, I might hesitate about expressing my dissent at any length, at this late day, to a decision which only re[54]
It is said that the common law of England is made up of “ general customs ” and “ particular customs,” the former being those customs which prevail throughout the realm, and the latter those which prevail in particular places. It would have been better for us, and we should have fallen into less of error, if we had retained those descriptive words of the early law-writers in the same sense in which they used them, and said of our own statute laws, they consist of, — 1. General laws, which are such as prevail throughout the state, and operate upon all persons and in all places alike; 2. Particular laws, which are such as apply to a particular class or particular classes of persons, or in particular places, but not to all persons and in all places; 3. Special laws, which are such as are passed for the accomplishment of some special purpose, or for the benefit of some particular person,— of these perhaps relief bills are the most common example; 4. Local laws, which are such as apply in some particular place only. With such a classification as this, we should never have fallen into such confusion [55]as now prevails as to the meaning of the term “ general laws,” and the court would from the beginning have interpreted that term as used at the close of section 6, as above quoted, as I believe it ought now to be interpreted. If we give to this term, as is given to it in the opinion of Mr. Justice Works, and in the cases which he cites, an interpretation which includes anything less than the entire state, and all persons and all places in it, we make section 8 of the same article of the constitution a farce and a snare. Under such an interpretation, it is worse than folly for the people of a municipality to avail themselves of the express permission of the constitution, and frame and adopt for themselves a municipal charter which the constitution forbids the legislature to alter or amend; for if this interpretation is to prevail, the legislature may do indirectly what it is expressly forbidden to do directly. To so hold is to impute to the framers of the constitution an absence of intelligence, or a degree of duplicity, which I cannot conceive to be possible. On the other hand, to construe the term “general laws,” as used in this place and in this connection, as meaning only those laws which apply throughout the state, governing all persons and all places in the state, makes the constitution in this regard one harmonious whole, and secures to the people one of the very objects had in view in calling the convention which framed the constitution, — the right of local self-government as to matters purely local and municipal, a right which is utterly defeated by the prevailing construction.
The same rule should be applied in construing the words quoted by Mr. Justice Works from section 8, to the effect that these charters must be “ consistent with and subject to the laws of this state.” Of course that refers to general laws, since the legislature is forbidden to pass special or local laws for the government of municipalities, and since by the same section of the constitution these charters, which are both special and local, [56]supersede “all special laws in conflict therewith.” When the constitution says in section 8 that the charter framed and adopted in accordance with the provisions of that section must be “ consistent with and subject to the laws of this state,” it means the same laws as those meant in section 6, where it says that they “ shall be subject to and controlled by general laws.” In Thomason v. Ashworth, 73 Cal. 73, and People v. Henshaw, 76 Cal. 436, the charters under consideration were special charters, passed by the legislature, and subject to alteration and amendment, under the constitution under which they were passed, at the will and pleasure of the legislature. Even if it be true that since the adoption of the present constitution such charters are to be controlled by general laws of the restricted character which apply only to particular places, — namely, to municipalities, and not to the state at large, — laws such as I have herein suggested should be designated as “ particular laws,” and not as “ general laws,” it does not follow that section 8 of article 11 of the constitution should be destroyed and rendered worse than nugatory, by holding that charters established under its provisions should also be subject to that limited kind of general law's. Ex parte Ah You, 82 Cal. 339, is not in conflict with these views, for there the court was acting, not upon the provisions of the charter generally, but upon the single provision of such a charter establishing a police court. That provision may be void, and the balance of the charter be valid. If void, as in the more recent case of People v. Toal, 85 Cal. 333, I felt compelled to concede it to be, it was not so because of conflict with a law of the class here under consideration, but because of conflict with the constitution itself, the language of the constitution being that such courts must be established, not “ by law,” but “ by the legislature.” Another clause of the constitution provides that such courts shall have such jurisdiction as is conferred upon them, “ by law,”
[57]Under the constitution, therefore, the court must be established by the legislature, but, being so established, I have no doubt jurisdiction might be conferred upon it by one of these charters, in cases arising under the charter, or under municipal ordinances passed in pursuance thereof. Brooks v. Fischer, 79 Cal. 173, was, it is true, a case in which the same charter here under consideration was involved. But there the question was as to the validity of the charter as a whole, the real question being as to whether it had been properly approved by the legislature. It was suggested that even if properly approved it was still invalid, because some of its provisions were in conflict with the provisions of some of this class of miscalled general laws. It was correctly held that a conflict of some particular provision of a charter with such a law would not vitiate the whole charter, and in discussing that question, it was merely assumed that the ruling in the former cases might apply to these charters, but without deciding that they would do so.
Entertaining these views, I am clearly of the opinion that the act of 1889, under which the proceedings complained- of in this case were had, does not apply to municipalities acting under charters framed, adopted, and established as provided in section 8, article 11, of the constitution, and is not in force within the limits of the city of Los Angeles.