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adopted Ordinance No. 701, N. S., amending Ordinance No. 699, N. S., appropriating the sum of $5,000 to be constituted a revolving fund; providing that of this sum the sum of $2,000 shall be used for any necessary equipment for the Berkeley Municipal Market, and the sum of $3,000 shall be used for the purpose of paying for any shipments of foodstuffs, expenses of maintaining and operating said market, salaries or compensation of any persons connected with said market, or taking care of any unforeseen losses or contingencies, or the future needs of said market; providing for purchases by the market manager; providing the mode of payment for the same, and providing the inode of returning moneys to said revolving fund.
The appeal comes to us upon the judgment-roll. It is taken by Elmer F. Bell, as auditor of the city of Berkeley, and Ethel M. Duval, intervener, from a judgment awarding petitioner-respondent a peremptory writ of mandate commanding defendant, as auditor, to allow a warrant issued upon a claim passed and allowed by the council of said city, in favor of said petitioner, in the sum of $225 as monthly salary for services as market manager of the Berkeley Municipal Market, alleged to have been established under said ordinance. The petition, with appropriate allegations, stated facts sufficient to constitute a cause of action. A demurrer to the petition was overruled and defendant answered. Ethel M. Duval, as a taxpayer, later, by leave of court, filed her complaint in intervention, joining defendant and adopting as hers the answer filed by him.
The court found that all of the allegations of the complaint were true, and in addition found specially to the effect that at the time of the passage of the said ordinances, and ever since, there has been more than $5,000 in the general fund of the city treasury which has not been appropriated for any other purpose, and that it is under the control of the defendant as auditor.
As conclusions of law the court determined that a peremptory writ of mandate issue in conformity with the prayer of the petition to defendant as auditor, commanding him to obey the ordinances and indorse his allowance on the warrant in question here, and do whatever other acts are necessary to allow the said demand. Judgment was entered in accordance therewith and defendant and intervener appealed.
Whether or not the judgment of the lower court shall stand must be answered on this appeal by the decision of the question adverted to in the first paragraph of this opinion.
The provisions of the law under which it is asserted the municipal market may be established and operated are the following:
Amendment of 1914 to the constitution of California, article XI, section 6, reading:
“Cities and towns hereafter organized under charters framed and adopted by authority of this Constitution, are hereby empowered, and cities and towns heretofore organized by authority of this Constitution may amend their charters in the manner authorized by this Constitution so as to become likewise empowered hereunder to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to and controlled by general laws." (Treadwell's Constitution, 4th ed., p. 376.)
Also section 8, of the same article of the constitution, which was amended to read :
“It shall be competent in any charter framed under the authority of this section to provide that the municipality governed thereunder may make and enforce all laws and regulations in respect to municipal affairs subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to general laws." (Treadwell's Constitution, 4th ed., p. 405.)
Section 47 of article IX (Powers of the City and of the Council) of the charter of the city of Berkeley :
“General Powers of the City. Sec. 47. Without denial or disparagement of other powers held under the Constitution and laws of the State, the City of Berkeley shall have the right and power:
“Public Buildings, Works and Institutions. (1) To ac. quire by purchase, condemnation or otherwise, and to establish, maintain, equip, own and operate, libraries, reading rooms, art galleries, museums, schools, kindergartens, parks, playgrounds, places of recreation, fountains, baths, public toilets, markets, market houses, abattoirs, dispensaries, infirmaries, hospitals, charitable institutions, jails, houses of correction and farm schools, work houses, detention homes, morgues, cemeteries, crematories, garbage collection and garbage disposal and reduction works, street cleaning and sprinkling plants, quarries, wharves, docks, waterways, canals, and all other public buildings, places, works and institutions.
“Additional Powers. (62) To enact appropriate legislation and do and perform any and all other acts and things which may be necessary and proper to carry out the general powers of the City or any of the provisions of this Charter, and to exercise all powers not in conflict with the Constitution of the State with this Charter, or with ordinances adopted by the people of the city."
Section 115 of article XVI of the charter as added in 1921 :
“Municipal Affairs. (Sec. 115) The City of Berkeley shall have the right and power to make and enforce ail laws and regulations in respect to municipal affairs subject only to restrictions and limitations provided in this charter; provided, however, that nothing herein shall be construed to prevent or restrict the City from exercising or consenting to, and the City is hereby authorized to exercise all rights, powers and privileges heretofore or hereafter granted or prescribed by the general laws of the state." (Stats. 1921, p. 2023, c. 16. Assembly Concurrent Resolution No. 5.)
When the California constitutional convention of 1879 met, an attempt was made to liberate municipalities from the thraldom of legislative interference in their affairs. As originally adopted, the last sentence of section 6 of article XI read as follows: “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." In passing upon certain sec. tions of the new constitution in People v. II oge (1880), 55 Cal. 612, 618, Chief Justice Morrison said: “It was mani. festly the intention of the constitution to emancipate municipal governments from the authority and control formerly exercised over them by the legislature.” However, the municipalities got little comfort and no relief from the decisions of our supreme court construing section 6 of
article XI, and the doctrine was settled that the legislature had power by general laws to supersede or take away without the consent of the municipality the powers conferred upon it either by a special legislative charter or by a constitutional freeholders' charter, and also to prevent, by anticipation, freeholders' charters from regulating matters covered by general laws. “These decisions had demonstrated,” said Mr. Justice Angellotti in Ex parte Braun, 141 Cal. 204, 209 [74 Pac. 780, 782), “that the power given by the constitution to cities to frame charters for their own government for the purpose, as was said in People v. Hoge, 55 Cal. 612, 618, of emancipating them from the authority and control formerly exercised over them by the legislature in municipal affairs, were unavailing if such charters could at once be superseded by any general legislative enactment. Under these circumstances the section of the constitution providing that all cities and towns and the charters thereof should be subject to and controlled by general laws was (1896) amended by the addition of the words 'except in municipal affairs.''
The purpose of this so-called "municipal affairs" amendment was explained by Mr. Justice Garoutte in Fragley v. Phelan, 126 Cal. 383, 387 [58 Pac. 923, 925), as follows: "For the purpose of getting at the true significance of these words, there is no brighter light to be shed upon them, than is disclosed by a consideration of the reasons which moved the legislature to propose the amendment and the people to adopt it. What was the evil to be remedied? What was the good to be gained by this amendment? The answer is common, every-day history. It was to prevent existing provisions of charters from being frittered away by general laws. It was to enable municipalities to conduct their own business and control their own affairs, to the fullest possible extent, in their own way. It was enacted upon the principle that the municipality itself knew better what it wanted and needed than the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs.”
Since the decision in Fragley v. Phelan the "municipal affairs” provision of the constitution has been considered and construed in many cases by our supreme court, but as
was said by Mr. William Carey Jones in an article on the subject "Municipal Affairs of the Constitution” (California Law Review, January, 1913): “The determination by the court whether any matter is or is not a municipal affair has not occasioned any serious trouble. Justices Garoutte, Harrison and Temple, in their several opinions in the Fragley case, took somewhat different views as to the import of the term and as to the criterion for deciding when an affair was municipal or was not municipal; but the solution of the question has never caused the court any real difficulty. Justice Angellotti has said in Sunset Telegraph & Telephone Co. v. Pasadena, 161 Cal. 265 (118 Pac. 796] : 'There has been much discussion in our decisions as to what matters are embraced in this term, and it has been said that it is very difficult, if not impossible, to give a general definition clearly defining the term “municipal affairs” and its scope.' Accordingly the court has wisely abstained from attempting to tie itself up with a definition, the concrete question being in each case whether the matter at issue was or was not within the scope of municipal functions. The court has carefully and judiciously discriminated between local and state affairs, and as a matter of fact in the larger number of litigated cases has held the 'affair' in question to be within the purview of municipal activity.”
Sections 6 and 8 of article XI of the constitution were amended in 1914 as hereinbefore noted. In 1921 the city of Berkeley, in conformity with these amendments, added section 115, article XVI, to its charter. This charter amendment is in language identical with language contained in the charter of the city of Los Angeles, which has been construed by our supreme court in several recent cases.
The first case was that of Civic Center Assn. v. Railroad Co., 175 Cal. 441 [166 Pac. 351). Mr. Justice Shaw, in writing the opinion of the court, after quoting the words of the charter section, “To make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in this charter,” said: “The city has brought itself within the conditions of the amendments of 1914 to sections 6 and 8 of article XI of the constitution. Thereupon, according to the terms of those sections of the constitution, its powers over municipal affairs became all-embracing, restricted, and