People ex rel. Wilshire v. Newman

Paterson, J.— This is an action in the nature of quo warranto, under sections 803 et seq. of the Code of Civil Procedure, to determine whether the relator or the defendant is entitled to the office of member of the board of fire commissioners of the city and county of San Francisco.

The various acts of the legislature relating to the board of fire commissioners of the city and county of San Francisco, and the effect thereof, are considered in People v. Edwards, 93 Cal. 153, and the cases therein referred to.

The relator herein relies upon an ordinance, which is fully set out in the complaint, providing for the complete reorganization of the fire department and the appointment of a board of fire commissioners. His title to the office depends upon the validity of that ordinance.

On the 16th of March, 1889, the ordinance in question, popularly known as the “ Barry ordinance,” was passed by the board of supervisors of the city and county of San Francisco, establishing and regulating the fire department, and providing for a commission, consisting of five members, to be appointed by the board of supervisors. On April 8, 1889, the board appointed the relator and Charles H. Haswell, H. R. Mann, P. F. Dunne, and Maurice Schmitt, members of the board, to have the [607]control and management of the fire department. The court below held, and properly we think, that the board of supervisors had no authority to pass said ordinance.

Section 11 of article XI. of the constitution provides that “ any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws but this delegation of power to make police regulations is authority to make only such regulations as are usual and necessary in the government of municipalities under their respective charters. The act of March 28, 1878, providing as it does for the organization and administration of one of the departments of the municipal government, is a part of the charter of the city and county of San Francisco, and cannot be abrogated by any mere police regulation. Under it the fire department is a branch of the municipal government. (Whitney v. Board of Delegates, 14 Cal. 497.) In People v. Hammond, 66 Cal. 654, it was held that the act of April 1, 1878, relating to the police department, being a part of the charter, was continued in force by the constitution. The act under consideration there holds the same relation to the Consolidation Act as the statute we are now considering. The provision ®f the constitution referred to was not intended to clothe the board of supervisors with the power to annul a constituent part of the charter itself, or to overthrow one of the municipal departments. The power conferred by it is not vested in any particular branch of the municipal government, but in the whole municipality. The government of the city and county of San Francisco is distributed into different departments. The board of supervisors represents one of these departments. The board of fire commissioners represents another department. The board óf supervisors has no more authority to reorganize the board of fire commissioners than the latter has to reorganize the hoard of supervisors. The same power that established one board established the other, and one is just as essential and important a part of the municipal govern