limited by the charter 'only,' and free from any interference by the state through general laws, including laws giving the Railroad Commission powers over public utilities. The result is that the city has become independent of general laws upon municipal affairs. Upon such affairs a general law is of no force with respect to Los Angeles. If its charter gives it powers concerning them, it has those powers; if its charter is silent as to any such power, no general law can confer it. Whether such powers heretofore conferred upon it by general law, if any there be, are now abrogated or suspended, is a question we need not decide." Then followed the opinion of Mr. Justice Wilbur in Cole v. City of Los Angeles, 180 Cal. 617, 622 [182 Pac. 436, 438], in which he quotes with approval the following language from Civic Center Assn. v. Railroad Co.: "The result is that the city has become independent of general laws upon municipal affairs. Upon such affairs a general law is of no force with respect to Los Angeles. If its charter gives it powers concerning them, it has those powers; if its charter is silent as to any such power, no general law can confer it." Soon thereafter our supreme court again had occasion to consider and pass upon the Los Angeles charter amendment. This time Mr. Justice Lawlor, writing the opinion in Morgan v. City of Los Angeles, 182 Cal. 301, 306 [187 Pac. 1050, 1052], said: "To make and enforce all laws and regulations in respect to municipal affairs, subject only to the 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, any and all rights, powers and privileges heretofore or hereafter granted or prescribed by general laws of the state. This charter provision was in effect at the time the city initiated the bond proceedings in question, and respondents contend 'that the plain intent of the provision is to the effect that, if the city is independent of general laws upon municipal affairs, save only as it may be restricted or limited by its own charter, it has the power to exercise any right, power or privilege heretofore or hereafter granted or prescribed by general law, and nothing in this charter shall be construed to prevent or restrict the city from exercising or consenting to such right, power or privilege.' This contention is, in our opinion, sound, and

it must be held that under subdivision 51 of section 2 of article I of its charter, as amended in 1919, the city of Los Angeles was empowered to issue bonds under the provisions of the Municipal Bond Act of 1901." Next, Mr. Justice Lennon wrote the opinions in Matter of Nowak, 184 Cal. 701 [195 Pac. 402], and in Matter of Galusha, 184 Cal. 697 [195 Pac. 406]. In Matter of Nowak he said: "The net result of this situation is that, as to municipal affairs, the charter, instead of being a grant of power, is, in effect, a limitation of powers, and, the imposition of the tax for revenue purposes being strictly a municipal affair, the city has the power to impose that tax unless the power was taken from it by the charter itself." And in Matter of Galusha: "Petitioner then raises the question as to whether or not such power has, in fact, been delegated to the City of Los Angeles. It must be borne in mind that, as stated in Matter of Nowak, 184 Cal. 701 [195 Pac. 402], the City of Los Angeles is operating under a charter amended so as to render the charter a limitation upon powers rather than a grant of powers, so far as municipal affairs are concerned. (Charter of City of Los Angeles, art. I, sec. 2, subd. 51; Const., art. XI, sec. 6.) The question, then, is not whether the charter grants the power to impose the tax, but whether it prohibits the tax, and no such prohibition is to be found in the charter. Even if it be conceded, however, that an express grant of power is necessary in the instant case, for the reason that the taxation of attorneys is not a purely municipal affair but one in which the state is directly concerned, that would not defeat the tax in question, for the charter does contain an express grant." The latest expression of the supreme court upon this important constitutional question emanated from Mr. Justice Wilbur, author of the opinion in Los Angeles Gas & Electric Corp. v. City of Los Angeles, 188 Cal. 307 [205 Pac. 125]. He said: "This provision of the constitution is in the article regulating the powers of the legislative department of the state government and is a limitation upon the power of the state legislature. The powers of the City of Los Angeles are not derived from the legislature, but from a freeholders' charter directly provided for by the constitution. That is to say, the people of the state through the constitution authorize the people of the city to regulate its affairs by a charter to

be framed by a board of freeholders and voted upon by the people of the city and approved by a resolution of the legislature. Section 31 of article IV has no application to a city charter. It is expressly provided by the constitution (article XI, section 6), that the city in its charter 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 and controlled by general laws. The sale and distribution of electrical energy manufactured by a city is a municipal affair and one over which the legislature of the state has no control."

[1] To recapitulate, it appears that, since the "municipal affairs" amendments of 1914 to the constitution, for such cities as have brought themselves within the condition of the amendments, the law is firmly established as follows: The powers of the cities are not derived from the legislature, but from a freeholders' charter directly provided for by the constitution. The city in its charter 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 and controlled by the general laws. The powers of the city are all-embracing, restricted, and limited by the charter only and free from the interference of the state by general laws. The result is that the city has become independent of general laws upon municipal affairs. Upon such affairs a general law is of no force. If its charter gives it powers concerning them, it has those powers. If its charter is silent as to any such power, no general law can confer it. As to municipal affairs the charter, instead of being a grant of power, is, in effect, a limitation of powers. The city can exercise the power if the charter does not prohibit it. In a case (Matter of Galusha) not involving a purely municipal affair, one in which the state is directly concerned, the city may exercise the power where its charter contains an express grant. And a city that has, like Berkeley, amended its charter (section 115 of article XVI of Berkeley charter), in order to conform to the "municipal affairs" amendments to the constitution, is independent of general laws upon municipal affairs and save only as it may be restricted or limited by its own charter,

it has the power to exercise any right, power, or privilege heretofore or hereafter granted or prescribed by general law, and nothing in the charter shall be construed to prevent or restrict the city from exercising or consenting to such right, power or privilege.

[2] The decision in this case turns upon the answer to the question which now presents itself to us: Is the establishment, maintenance, equipment, ownership, and operation of the "Berkeley Municipal Market" a municipal affair?

In defining a "municipal affair" it has been said that "the true test is that which requires that the work should be essentially public and for the general good of all the inhabitants of the city. It must not be undertaken merely for gain or for private objects. Gain or loss may incidentally follow, but the purpose must be primarily to satisfy the need, or contribute to the convenience, of the people of the city at large. Within that sphere of action, novelty should impose no veto." (Sun Printing etc. Assn. v. New York, 8 App. Div. 230, 238 [40 N. Y. Supp. 607, 611, 612]; Id., 152 N. Y. 257 [37 L. R. A. 788, 46 N. E. 499].)

Time was when the sale of light and water to the public was attacked in the state of New York because it was thought not to be within the purview of the municipal powers of the city. The idea was then something new and it met with opposition. It was contended that the business that the city proposed engaging in was of a private, commercial nature, and that therefore the municipality was debarred from entering upon it. The case is to be found in 49 Hun, 550 [2 N. Y. Supp. 447], and is entitled Hequenbourg v. City of Dunkirk et al. In declaring the business a public use, the court said: "What is or what is not a municipal purpose is in many cases doubtful and uncertain, and it is the duty of the court in such cases to give weight to legislative determination, and not to annul its acts, unless it clearly appears that the act was not authorized."

In Laughlin v. City of Portland (1914), 111 Me. 486 [Ann. Cas. 1916C, 734, 51 L. R. A. (N. S.) 1143, 90 Atl. 318], the court said: "The courts have never attempted to lay down with minute detail an inexorable rule distinguishing public from private purposes, because it would be impossible to do so. Times change. The wants and necessities of the people change. The opportunity to satisfy those wants

and necessities by individual effort may vary. What was clearly a public use a century ago, may, because of changed conditions, have ceased to be such to-day. . . . What could not be deemed a public use a century ago, may, because of changed economic and industrial conditions, be such to-day. Laws which were entirely adequate to secure public welfare then may be inadequate to accomplish the same results

now. . . .

In State v. Toledo, 48 Ohio St. 112 [11 L. R. A. 729, 26 N. E. 1061], cited in Jones v. City of Portland, 245 U. S. 224 [Ann. Cas. 1918E, 660 L. R. A. 1918C, 765, 62 L. Ed. 252, 38 Sup. Ct. Rep. 212], the court discussed the question as follows: "Taxation implies an imposition for a public use. ... But what are public purposes is a question that must be left to the legislature, to be decided upon its own judgment and discretion. . . . It is sufficient if every inhabitant who is so situated that he can use it, has the same right to use it as the other inhabitants. . . . The establishment of natural gas works by municipal corporations, with the imposition of taxes to pay the cost thereof, may be a new object of municipal policy. But in deciding whether in a given case, the object for which taxes are assessed is a public or private purpose, we cannot leave out of view the progress of society, the change of manners and customs and the development and growth of new wants, natural and artificial, which may from time to time call for a new exercise of legislative power. And in deciding whether such taxes shall be levied for the new purposes that have arisen, we should not, we think, be bound by an inexorable rule that would embrace only those objects for which taxes have been. customarily and by long course of legislation levied."

Again, in the case of German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 408 [L. R. A. 1915C, 1189, 58 L. Ed. 1011, 34 Sup. Ct. Rep. 612, 617], where the regulation of rates and premiums of fire insurance companies was upheld, Mr. Justice McKenna said:

"The principle was expressed to be, quoting Lord Chief Justice Hale, 'that when private property is affected with a public interest it ceases to be juris privati only' and it becomes 'clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.' . .

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