HENSHAW, J., concurring. concur in the judgment. I do not, however, understand that it is contended that the Whitney act is repealed, either directly or impliedhq by the census act of 1897, hut rather (as I follow petitioner’s argument) that the Whitney act by express language applies only to cities of a [391]specified population; that if a city once possessing that population shall outgrow the maximum limit fixed by the act, then ipso facto it has outgrown the act which is not thereby repealed, but merely ceases to apply to that particular municipality. The question of population thus becomes a fact to be judicially ascertained, and when so ascertained is the determinative factor in the problem. The act of 1897 declares that the census when taken shall be the official state census of the city, and this at least means that it affords evidence of controlling weight in determining the question of population.
Such I understand to be petitioner’s argument. The facts are unquestioned. The Whitney act declares that a police court is created in cities “having thirty thousand and under one hundred thousand inhabitants.” Los Angeles was such a city. By census taken under the act of 1897 it is found to have a population in excess of one hundred thousand; hence, the police court of the Whitney act in which petitioner was convicted no longer exists, because the act has ceased to apply to that municipality.
If it is conceded that a city which originally came under the operation of such a statute passes without the purview of the act merely'by an increase or decrease of population, then to my mind the argument of petitioner becomes unanswerable, and the conclusion he reaches irresistible. I think, however, that such is not a necessary nor yet the proper construction. The true construction I believe to be this: Such, laws are directed to classes of cities, and are valid only when directed to classes. They apply to cities belonging to the class at the time when the law first became operative. A city thus originally belonging to a class does not cease so to belong merely by a change in population. There must also be legislative action, either mediate or immediate, directed to that end.
The constitution requires that legislation for specified purposes shall be directed to cities and to counties by classes, and that population shall be the basis of the classification. In counties, the compensation of officers can be fixed only under a classification based upon population, while in cities all legislation affecting incorporation, organization, and classification must also be based upon a like system. (Const., art. XI, secs. 5, 6; Rauer v. Williams, 118 Cal. 401.)
[392]The legislature might have obe)red this constitutional mandate by declaring that certain counties, naming them, constituted the first class, others named the second class, and so throughout. The same might have been done with cities. The result would have been to put all counties and all cities by name in designated classes, and, if the classes were based upon population, and differences in population appeared to justify the classification—in other words, if it was shown to be a designation and segregation resting in reason and not in arbitrary whim, it would unquestionably have been upheld by the courts. Such a mode would have relieved from many vexatious questions which now confront us. Instead, however, the legislature saw fit to make a rule of classification, rather than a classification itself, by designating the number of inhabitants which should fix the class. The number of inhabitants was thus in every case left for ascertainment before the class to which the county or the city belonged could he determined. In the case of counties, this form of legislation has been carried to the uttermost limit, so that we now have the fifty-seven counties of this state divided into fifty-seven so-called classes. Bach county is made a class. It is only the extreme of compulsion which would force recognition of such laws as creating a classification by population within the meaning of the constitution.
In cities under the statute of 1883 a more rational classification was adopted. (Stats. 1883, p. 24.)
But in both instances it is the population at the time when the law first became operative that fixes the class, and the class being so fixed is not affected by future fluctuations and changes in population, without further legislative action. This I take to be the true meaning of the constitutional injunction upon the legislature to classify cities and counties by population. Were it not so, untold confusion would result. There would he times when counties would he greatly embarrassed, and many cities would he without charters or any form of municipal government.
Let it he assumed, to illustrate, that a county originally of the twenty-fifth class by increase of population ranks as a county of the twentieth class. If an increase in the number of inhabitants of itself works the change in the class the county would ipso fació become a county of the twentieth class. But what [393]would result? Some of the county officers may he feed in the one class and salaried in the other. The very purpose of the law is to increase compensation in the higher class for a supposed increase of labor based upon a larger population. But there is a constitutional provision forbidding an increase in the salary of public officers during the terms for which they are elected. The county officers could not draw the salaries of officers of a county of the twenty-fifth class, because their county no longer belonged to that class. They could not • draw the salaries of officers of a county of the twentieth class, because it would be an increase in emolument. The solution would be found in instant resignations, and relief could come only from a special session of the legislature. In many cities the situation would be even more embarrassing. A number have adopted 'charters under the municipal corporation bill. (Stats. 1883, p. 93.) By this bill a city of a specified population may elect to adopt the charter therein provided for cities of its class. If the city has a population not exceeding three thousand it becomes a city of the sixth class. Assume that its population grows till it exceeds three thousand. The city then, if population alone is controlling, ceases to be a city of the sixth class and becomes a city of the fifth class. It has then outgrown its charter; but, upon the other hand, it has acquired no new one, since this under the law it can only do by a vote of its people. It would then be left without any organic law whatsoever. This consideration .was manifestly in the legislative mind, for it is provided by the classification act that, having adopted a charter of the class to which it belongs, the city retains that charter, notwithstanding any increase in population, until its people by vote shall adopt that of another class.
This provision would, of course, be invalid, if the construction for which petitioner contends is to obtain, for, if the constitution designed that changes in population should control the class at any and all times, then a legislative declaration to the contrary would be without effect. The statute, however, is interesting and instructive, as showing that a co-ordinate and independent power in the government must in passing the act have construed the constitution as is here done. It is a legislative expression that the class is fixed by the population as it stood at [394]the time when the law became operative, and that it is not afterward affected by a mere change in population.
The same rule and reason, I think, apply to the case under consideration. Laws such as the Whitney act, creating municipal courts, it is to be remembered, are laws pertaining with peculiar force to the organization of cities. Laws affecting organization of cities are required to be general and to apply to all cities, or to all cities of the class specified in the classification act. (Stats. 1883, p. 24; Pasadena v. Stimson, 91 Cal. 238; Darcy v. Mayor, 104 Cal. 642; Rauer v. Williams, 118 Cal. 401.) The Whitney act was upheld as being such a general law, substantially conforming to the classification act of 1883, and applying to one of the class of cities created thereunder. Such is the necessary effect of the decision upholding the Whitney act in People v. Henshaw, 76 Cal. 436, where it is said, at page 446: “To so classify them [cities] that general laws applicable to these separate classes will meet the necessities of the case was a wise provision, and a law which applies to one or more, but not to all, of these classes is not for that reason special legislation.” In Pasadena v. Stimson, supra, reviewing the decision in People v. Henshaw, supra, it is said: “The author of the prevailing opinion assumed that the class of cities „to which the Whitney act was made applicable was identical with the second class as defined in the general incorporation act.....It must be borne in mind that the subject of the Whitney act (a police court) was peculiarly a matter pertaining to municipal organizations.” Were not this the true construction of the Whitney act and of the opinion of this court upholding it, the law would have been overthrown as special legislation, for, as is said by this court in Darcy v. Mayor, supra: “Section 6, article XI, was evidently intended to limit,' and not to enlarge, the power of the legislature, and I think it was intended that the classification there authorized was to be by a general law in the same sense and in the same way in which it was necessary to provide for the incorporation and organization of cities and towns, and legislation in regard to such corporations would thereafter be made by reference to the classes thus made. The special authority to thus classify cities and towns would also seem to imply that they cannot be otherwise classified for purposes of legislation. If they can be, and new [395]classes created whenever it is desired by anyone to procure legislation which shall apply to only a few cities of the class, the limitations of the constitution, so carefully made and so oft repeated, can be easily defeated.” .
It is, therefore, apparent that the "Whitney act is a general statute dealing with cities of the second class. Now, such a statute affecting the organization of a class of cities, in fact and effect, though not in terms, becomes a part of their organic law, a part of the charter of such cities. It is beyond question that charters of cities are not affected by changes in population, and for the foregoing additional reason this law, which is essentially a part of the -charter, likewise stands unaffected.