Thomason v. Ashworth

Thornton, J. Application for writ of mandate to the defendant as superintendent of streets, commanding him to enter into and sign a contract under the street law for the city and county of San Francisco, passed April 1, 1872. The contract, the. execution of which is sought to be compelled herein, is one to be entered into in advance of the assessment and collection of the money to be paid for the work done under it, under the provisions of the act of 1872, and in this regard this act may be held to be done away with by the provisions of the constitu — 75 — tion. This we consider as settled in this '.court by the cases of McDonald v. Patterson, 54 Cal. 245, and Donahue v. Graham, 61 Cal. 277. Since the adoption of the constitution, and on the 6th of March, 1883, the legislature enacted an act entitled “An act to provide for the improvement of streets, lanes, alleys, courts, places, and sidewalks, and the construction of sewers within municipalities.” (Stats. 1883, p. 32.) This act was passed in conformity with the portion of section 19 of article 11 of the constitution relating to works on and improvement of streets, which is quoted in the opinion of the1 court in McDonald v. Patterson, supra, and repealed all acts or parts of acts in conflict with any of its provisions. (See section 36 of act above cited, Stats. 1883, p. 47.) Thus, such parts of the act of 1872 which remained in force after the adoption of the constitution as are in conflict with the act of 1883 were repealed by it. Subsequently, and on the eighteenth day of March, 1885, a statute was passed and approved with a title substantially the same as that of the act of 1883. (Stats. 1885, p. 147.) By the thirty-sixth section of this act, the act of 1883 was repealed, except as to work commenced under it prior to the passage of the repealing act. (Stats. 1885, p. 165.) The last-named act like the act of 1872 did not provide for the assessment and collection of the money to pay for the street work done under it until after the work was completed. And in this respect it was violative of section 19 of article 11 of the constitution, as that section was originally passed. But according to the ruling of this court in Oakland Paving Company v. Tompkins, 72 Cal. 5, the section of the constitution above mentioned had been amended before the act of 1885 was passed, by which the objection of unconstitutionality to the latter act, on the ground that it was violative of the section referred to, was removed. We consider the decision in the — 76 — case just above cited as settling finally the question as to the constitutionality of the amendment of section 19, above referred to. But there is another objection urged to the constitutionality of the acts of 1883 and 1885. It is argued that, under section 6 of article 11 of the constitution, neither of the acts above mentioned could become laws, for the reason that they are special laws, and therefore beyond the power of the legislature to enact, and further, that the legislature did not have the power to pass a general law affecting the charter of the city and county of San Francisco without the consent of such city and county. The sixth section of article 11 of the constitution is as follows:— “Sec. 6. 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 entire legislative power is by the constitution vested in the senate and assembly, designated as the legislature. Any restriction of this power must be found in the constitution of the state, or in the constitution of the United States and laws passed in pursuance thereof. Our attention has been called to no restriction in the constitution of the United States or the acts of Congress in regard to the question to be herein considered. The restrictions in the sixth section of article 11 are as follows: 1. Corporations for municipal pur — 77 — poses can only be created by general laws. Prior to the adoption of the present constitution, the legislature could create a corporation for municipal purposes by a special law. This cannot be done since the present constitution became operative. 2. Prior to the adoption of the present constitution, the legislature was not only competent to create a corporation for municipal purposes by a special law, but could compel a community of persons to accept a charter so created. As the constitution now stands, and since its adoption, a corporation can determine by a vote of its electors whether to accept a new charter or not, and such new charter or organization is accepted only when voted for by a majority of its electors voting at a general election. 3. A charter cannot be amended by a special law. But while these restrictions exist, the legislature has the power to control the charters of all corporations by general laws. The restrictions above pointed out do not at all affect the power to control or regulate the- charters of all municipal corporations by laws general in their character. This power is expressly recognized by the last clause of section 6, above cited, where it is declared that “ cities and 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.” On reading the constitution it will be observed that its framers were particularly careful to restrict the legislature from passing local or special laws. See article 4, section 25; article 11, sections 4, 5, 11, 12, 14; article 12, sections 1, 5, 11; and section 11 of article 10, where legislative powers are conferred on counties, cities, towns, or townships by the constitution, such powers are still made subject to and liable to be controlled by general laws. So it will be observed that the meaning attributed to the last clause of section 6 of article 11 is in accordance with the general plan on which the constitution is framed, — 78 — that is, the inhibition of special or local legislation, and the allowance of general legislation. Evils constantly arise from special legislation, and such evils it was the intention of the constitution-makers to prevent. The evils of general legislation are such as spring from the imperfection of all things human and the abuse of power, but the abuse, or liability to abuse, affords no argument against the existence of such power. To prevent such abuses, reliance must be had on the intelligence and fidelity of the representatives of the people, their accountability to their constituents, and the power to repeal statutes when found to be hurtful. The acts of 1883 and 1885 include all municipal corporations in the state. This plainly appears from the first section of each act. Is it not, then, a general law? As the foregoing statutes apply to all municipal corporations in the state, if they are not general laws it would be impossible to frame one which is general. The above view as to a general law accords with Brooks v. Hyde, 37 Cal. 376; Wheeler v. Philadelphia, 77 Pa. St. 338; Kilgore v. Magee, 85 Pa. St. 401; Knickerbocker v. People, 102 Ill. 218; Hymes v. Aydelott, 26 Ind. 431; Chicago R. R. Co. v. Iowa, 94 U. S. 155; McAunich v. Mississippi etc. R. R. Co., 20 Iowa, 343. In Knickerbocker v. People, supra, it is said: “A law applicable to all counties of a class, as made or authorized by the constitution, is neither a local nor a special law. If it applies to all the counties of a class authorized by the constitution to be made, it is a general law, and whether there may be few or many counties to which its provisions will apply is a matter of no consequence.” It is said in Wheeler v. Philadelphia, above cited: “A statute which relates to persons or things as a class is a general law.” It is argued that, according to the views herein expressed, a city may have its charter totally changed without its consent. This is a proper, deduction from the ruling herein, but this cannot be done by a special — 79 — or local law applicable alone to a particular charter. The result can only be reached by a general law affecting all municipal corporations, or may be all of a class, and we can see no probability that a city can be injured by general legislation. When such legislation is allowed, corporations are put on the same footing with individuals as to protection against special or local legislation, and liability to be affected by general legislation. Whatever the danger may be from such legislation, the constitution is so written as to allow it, and thus we must interpret it. It follows from the above,—1. That the act of 1872 was entirely done away with by the constitution; 2. That the act of 1883 was constitutional when passed, and repealed all portions of the act of 1872 in conflict with it; 3. That the act of 1885 is a constitutional act under the constitution as amended; that the act of 1885 repealed the act of 1883, and has been, and is now, in force since its passage on the eighteenth day of March, 1885. The judgment must be affirmed. So ordered. Seaels, 0. J., McFarland, J., and Paterson, J., concurred.