Ex Parte Braun , 141 Cal. 204 ( 1903 )

I dissent. The decision of the court is rested, and necessarily depends, upon the construction given to the phrase "municipal affairs," which by the amendment of 1896 was added to section 6 of article XI of the constitution. That construction is thus stated in the principal opinion: "When a power is conferred upon a municipality for municipal purposes, that power becomes a municipal affair." It is to be observed of this construction that until it can be shown that any power is ever conferred upon, or exercised by, a municipality for other than municipal purposes the definition of a municipal affair gains nothing in point of clarity or precision by the inclusion of the words "for municipal purposes." We have no concern with powers that cannot be exercised, and since the powers of a municipality, if exercised at all, must be exercised exclusively "for municipal purposes," these words do not qualify the rest of the definition. With or without them, it means the same thing, — viz., that a power once conferred upon a municipality becomes,ipso facto, a municipal affair within the meaning of this section of the constitution, and is for all future time exempt from any control by act of the legislature, no matter how general in its intended operation upon all persons in every part of the state.

The conclusion which results from this view is aptly stated in the concurring opinion of Justice McFarland, who is "reluctantly constrained to conclude that, by the amendment of the constitution in question, the people of the state, moved by temporary impulse (not yet entirely abated) to carry the notion of what is called `local self-government' to extremes, have taken away from the state an important part of that popular attribute of sovereignty, the taxing power, and given it to all the municipalities, great and small, which are now organized, or which may be hereafter organized, under freeholders' charters. It is difficult to realize that the people of the state, through their legislature, have no longer the power to say that a license-tax — a tax upon the right to do business, a tax upon capacity — is unjust, unequal, and oppressive, and should not be tolerated anywhere within the state; but we think that such is now the law." I should arrive at the same conclusion with the same reluctance if I felt constrained to adopt it. But I do not. The sole purpose of the amendment to section 6 of article XI of the constitution was to restore to the fundamental law what had been construed out of it by this court in a series of decisions of which Thomason v. Ashworth, 73 Cal. 73, is the most conspicuous example. By that section the legislature had been prohibited from creating municipal corporations, as they had theretofore been created by special laws. In place of such special laws they were commanded to provide for the incorporation and organization of cities and towns by general laws. It was provided, further, that cities and towns theretofore organized (under special charters) might reorganize under such general laws whenever a majority of their electors so decided, and that all cities and towns theretofore organized (by special laws) or thereafter to be organized (under the general incorporation laws or through the action of a board of freeholders), and all charters thereof, should be controlled by and subject to general laws. From the most casual reading of the section it was plain that, unless the framers of the constitution intended to contradict themselves in the short space of a dozen lines, they did not mean to include among the general laws which would control the provisions of special charters the general laws for the incorporation and organization of municipal incorporations. It was accordingly held, in a maturely considered case decided shortly after the new constitution took effect, that the Consolidation Act, which constituted the charter of San Francisco, was not superseded or controlled by what was known as the McClure charter. (Desmond v. Dunn, 55 Cal. 242.) I am not aware that the soundness of that decision has ever been directly impeached, and certainly it is not to be questioned at the present day. Nevertheless, the court in Thomason v. Ashworth,73 Cal. 73, by a bare majority, held that the charter of San Francisco, and every special charter granted by the state, was controlled by the Street Improvement Law, and this notwithstanding the dissenting opinion of Justice McKinstry, — concurred in by Justice Sharpstein, — in which it was demonstrated with irresistible logic that the Street Improvement Act, which had no operation or application outside of incorporated cities and towns, was nothing but a part of, or an amendment to, the general law for the incorporation of cities and towns, which it had been theretofore decided, in accordance with the plain intent of the constitution, would not control special charters. The result of this decision was to leave the legislature free to override ad libitum the provisions of all special charters by the simple device of enacting statutes which were general in no other sense than that they applied generally to all municipal corporations, and which were not a part of the Municipal Incorporation Law only because they omitted to so style themselves in their titles.

This was the mischief, and the whole mischief, which the people intended to remedy when they inserted in the constitution the ambiguous and ill-chosen phrase "except in municipal affairs." Their desire was, as above stated, to put back into the constitution what had been construed out of it in Thomason v.Ashworth, 73 Cal. 73, and People v. Henshaw, 76 Cal. 436. The change was made for the behoof of the citizens of San Francisco and other specially chartered cities and towns in order to exempt them from interference in their local affairs by the enactment of laws binding upon them, but not binding upon the people of the state at large. They had no intention and no wish in extending this reasonable guaranty of self-government to the citizens of specially chartered cities and towns, to go to the extreme length of exempting them from the authority of the legislature in matters of general state policy susceptible of regulation by laws operating uniformly throughout the state upon all persons similarly situated, whether the inhabitants of incorporated cities or not. If this view be correct it indicates the correct construction of the words "municipal affairs." They stand in contradistinction to "state affairs," and whenever a matter is found susceptible of general regulation by a law which binds all the people of the state, and when it is so regulated, it ceases from that time to be, although before it may have been, a municipal affair.

It is thought to be a conclusive argument against this view that it involves the possible extinguishment of all municipal privileges; for it is said if the legislature by exempting what was formerly a subject of taxation by a general law can invalidate local ordinances imposing taxes on the subject so exempted, they could invalidate all local regulations touching matters universally conceded to be of peculiar municipal concern. The validity of this argument depends upon the assumption either that the legislature can regulate all such matters by general laws uniformly operating throughout the state, or that, while that is impossible, they will pass laws which in terms purport to make such general regulations, although they are in fact impracticable or oppressive. The argument that because power may be abused therefore it cannot exist is one that has been repudiated by this and all other courts times without number, and it is not to be supposed that because the legislature may enact oppressive and unreasonable general laws it has no power so to legislate. It unquestionably has the power, and the only remedy for its abuse is the ballot-box. Ordinarily, this is a fairly effective remedy, and at all events it is no help to the construction of a doubtful clause of the constitution to say that if it is construed in a particular way the legislature may do something absurd and unheard of. The alternative assumption that all matters now regarded as peculiarly the subject of local regulation under the powers conferred by special charters may in course of time be found susceptible of reasonable and proper regulation by general laws operative on the same subjects throughout the state is opposed to all experience and all probability; but conceding that it might be so, the only result would be, that as such legislation was discovered to be possible with respect to one matter after another now deemed a municipal affair, we should simply find ourselves governed throughout the state by good general regulations, instead of good special regulations in particular localities. Such a prospect should have no terrors for any one imbued with the spirit of a constitution which above all other things insists upon general laws wherever they can be made applicable, and requires all laws of a general nature to have a uniform operation. It is this pervading spirit of the constitution which demands that acts of the legislature establishing and defining the general policy of the state with respect to such a matter as subjects of taxation, should be supreme over all local regulations, and that such a subject so regulated should pass from the category of "municipal affairs."

But whatever may be thought of these views it is at least certain that there must be some criterion other than the mere fact of its inclusion in a charter by which to determine whether a particular provision is a municipal affair. If the mere fact that a provision is in a charter (necessarily for municipal purposes) stamps it as a municipal affair, there is nothing left for that clause of the constitution to operate upon which plainly declares that except in municipal affairs the provisions of all charters are controlled by general laws.

It is said in the principal opinion that a contention of counsel similar to that which I have endeavored to enforce would deprive the amendment of 1896 of any meaning or effect whatever. It seems to me to be giving the amendment a very potent and beneficial effect to hold that it prevents the legislature from impairing the provisions of special charters by laws like the Vrooman Act, which apply only to municipal corporations, and which are in substance mere amendments to the Municipal Corporation Act. This was the effect which Justice McKinstry strove to give to the original section, and this is the effect which the court refused to give it. To reverse that ruling, and restore the constitution to what it was intended to be, is something achieved, so that to give the amendment some effect it is not necessary to go to the extreme of holding that it has rendered local charters supreme over laws that are general in the broadest sense of the word. The legislature has, in effect, declared that no man in the state, in city or county, shall be taxed upon his occupation. If this is a just principle of taxation, — and of that the legislature is the final judge, — it holds good in cities as in counties, each of which requires local revenues for local purposes, and since the law is equally applicable to all the people, and was designed for all, it should bind all alike.

Lorigan, J., concurred in the dissenting opinion.

Rehearing denied.