Moeeisok, C. J.:
Section 8, art. xi, of the Constitution reads as follows :
“Any city containing a population of more than one hundred [614]*614thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State, by causing a board of fifteen freeholders, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of such city at any general or special election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, which shall be signed in duplicate by the members of such board, or a majority of them, and returned, one copy thereof to the Mayor, or other chief executive officer of such city, and the other to the Recorder of Deeds of the county. Such proposed charter shall then be published in two daily papers of general circulation in such city for at least twenty days; and within not less than thirty days after such publication it shall be submitted to the qualified electors of such city at a general or special election; and if a majority of such qualified electors voting thereat shall ratify the same, it shall thereafter be submitted to the Legislature for its approval or rcjectidn as a whole, without power of alternation or amendment, and if approved by a majority vote of the members elected to each house, it shall become the organic law thereof, and supersede any existing charter and all amendments thereof, and all special laws inconsistent with such charter.”
The case as presented to the Court for its decision shows that the City and County of San Francisco is and was, during all the periods of time stated, a municipal corporation duly organized, and acting under a certain statute of the State of California, entitled “An Act to repeal the several charters of the City of Francisco, to establish the boundaries of the City and County of San Francisco, and to consolidate the government thereof,” approved April 19th, 1856, and the several acts amendatory thereof and suppplementary thereto, and that said city and county contains a population of more than one hundred thousand inhabitants.
It further appears, that on the 4th of March, 1880, the Board of Election Commissioners of said city and county, organized under a statute of this State, entitled “ An Act to reg'ulate the registration of voters, and to secure the purity of elections in the City and County of San Francisco,” approved March 18th, 1878, passed and adopted the following resolution:
[615]*615“liesolved, By the Board of Election Commissioners for the City and County of San Francisco, State of California, that a special election in and for the City and County of San Francisco, be held on the 30th day of March, 1880, for the purpose of electing fifteen freeholders, who shall have been for at least five years qualified electors of the said city and county, to prepare and propose a charter for said city and county, as provided for in said Constitution, and that the qualified voters of said city and county be duly notified to meet in their respective precincts on Tuesday, the 30th day of March, 1880, at said special election, for the purpose of electing the said fifteen freeholders, who shall have been for at least five years qualified electors of said city and county, to prepare and propose a charter for said city and county.”
It also appeared that on the 4th day of March, 1880, the Register of Election, by order of the Board of Election Commissioners, published a notice that a registration of voters for the election of fifteen freeholders would commence on Friday, March 5th, and would be continued from that time until March 15th. That on the 19th day of March, 1880, the Board of Election Commissioners issued a proclamation for a special election of fifteen freeholders, to be held on Tuesday, the 30th day of March, 1880, and in pursuance of such proclamation, public notice of such election was duly given.
It further appears from the transcript in the case, that a special election was ordered by the Governor of the State, to be held on the same day, March 30th, 1880, for the election of a Senator from the Eighth Senatorial District, comprising the City and County of San Francisco, and the County of San Mateo, to fill a vacancy in such senatorial district, “ occurring from the inability of one Robert Desty, who was elected to said office at the general election held throughout this State on the 3d day of September, A. D. 1879.”
It also appears that at such special election, held March 30th, 1880, the defendant Joseph P. Hoge, and fourteen others named in the amended complaint, received a majority of all the votes cast, and a larger vote than was polled for the person elected at that time a Senator to fill the vacancy above referred to.
This is a proceeding in the nature of a quo warranto, under [616]*616§ 803 of the Code of Civil Procedure, to oust the defendant from the office claimed by him under and by virtue of such special election held on the 30th of March, 1880.
On the part of the people the following grounds are taken:
1. The Board of Election Commissioners had no power to order an election of a Board of Freeholders.
2. The Board of Election Commissioners had no power to call a special election.
3. The authority to cause a Board of Freeholders to be elected, to pass a charter, is vested in the city—that is to say, in the Board of Supervisors.
4. Legislation is needed to give effect to § 8, art. xi, of the Constitution.
“ An Act to regulate the registration of voters, and to secure the purity of the elections in the City and County of San Francisco,” approved March 18th, 1878, (Laws of 1877-78, p. 299) is the statute under which the Board of Election Commissioners acted in the matter of electing fifteen freeholders to frame a charter for the City and County of San Francisco, and we will briefly refer to two or three sections of the act.
Section 1 provides that “ the conduct, management and control of elections and matters pertaining to elections in the City and County of San Francisco, is hereby taken from the Board of Supervisors and vested in a board of five commissioners, who shall consist of the Mayor, Auditor, Tax Collector, the City and County Attorney, and the City and County Surveyor of said city and county, which board is hereby invested with all the powers and charged with all the duties as to elections and matters pertaining to elections now vested in said Board of Supervisors.”
Section 33. “ All provisions for carrying out the registration and election laws of said City and County of San Francisco shall be made by the Board of Election Commissioners, and demands on the treasury authorized or allowed by them for such purposes, shall have the same force and effect as if authorized or allowed by the Board of Supervisors.”
Section 34: “ All of the provisions of the Political Code touching the registration and qualification of voters and the method of calling, holding, and conducting elections, in force in [617]*617said city and county at the passage of this act, shall continue in force therein, so far as they are not inconsistent with the provisions hereof.”
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Moeeisok, C. J.:
Section 8, art. xi, of the Constitution reads as follows :
“Any city containing a population of more than one hundred [614]*614thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State, by causing a board of fifteen freeholders, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of such city at any general or special election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, which shall be signed in duplicate by the members of such board, or a majority of them, and returned, one copy thereof to the Mayor, or other chief executive officer of such city, and the other to the Recorder of Deeds of the county. Such proposed charter shall then be published in two daily papers of general circulation in such city for at least twenty days; and within not less than thirty days after such publication it shall be submitted to the qualified electors of such city at a general or special election; and if a majority of such qualified electors voting thereat shall ratify the same, it shall thereafter be submitted to the Legislature for its approval or rcjectidn as a whole, without power of alternation or amendment, and if approved by a majority vote of the members elected to each house, it shall become the organic law thereof, and supersede any existing charter and all amendments thereof, and all special laws inconsistent with such charter.”
The case as presented to the Court for its decision shows that the City and County of San Francisco is and was, during all the periods of time stated, a municipal corporation duly organized, and acting under a certain statute of the State of California, entitled “An Act to repeal the several charters of the City of Francisco, to establish the boundaries of the City and County of San Francisco, and to consolidate the government thereof,” approved April 19th, 1856, and the several acts amendatory thereof and suppplementary thereto, and that said city and county contains a population of more than one hundred thousand inhabitants.
It further appears, that on the 4th of March, 1880, the Board of Election Commissioners of said city and county, organized under a statute of this State, entitled “ An Act to reg'ulate the registration of voters, and to secure the purity of elections in the City and County of San Francisco,” approved March 18th, 1878, passed and adopted the following resolution:
[615]*615“liesolved, By the Board of Election Commissioners for the City and County of San Francisco, State of California, that a special election in and for the City and County of San Francisco, be held on the 30th day of March, 1880, for the purpose of electing fifteen freeholders, who shall have been for at least five years qualified electors of the said city and county, to prepare and propose a charter for said city and county, as provided for in said Constitution, and that the qualified voters of said city and county be duly notified to meet in their respective precincts on Tuesday, the 30th day of March, 1880, at said special election, for the purpose of electing the said fifteen freeholders, who shall have been for at least five years qualified electors of said city and county, to prepare and propose a charter for said city and county.”
It also appeared that on the 4th day of March, 1880, the Register of Election, by order of the Board of Election Commissioners, published a notice that a registration of voters for the election of fifteen freeholders would commence on Friday, March 5th, and would be continued from that time until March 15th. That on the 19th day of March, 1880, the Board of Election Commissioners issued a proclamation for a special election of fifteen freeholders, to be held on Tuesday, the 30th day of March, 1880, and in pursuance of such proclamation, public notice of such election was duly given.
It further appears from the transcript in the case, that a special election was ordered by the Governor of the State, to be held on the same day, March 30th, 1880, for the election of a Senator from the Eighth Senatorial District, comprising the City and County of San Francisco, and the County of San Mateo, to fill a vacancy in such senatorial district, “ occurring from the inability of one Robert Desty, who was elected to said office at the general election held throughout this State on the 3d day of September, A. D. 1879.”
It also appears that at such special election, held March 30th, 1880, the defendant Joseph P. Hoge, and fourteen others named in the amended complaint, received a majority of all the votes cast, and a larger vote than was polled for the person elected at that time a Senator to fill the vacancy above referred to.
This is a proceeding in the nature of a quo warranto, under [616]*616§ 803 of the Code of Civil Procedure, to oust the defendant from the office claimed by him under and by virtue of such special election held on the 30th of March, 1880.
On the part of the people the following grounds are taken:
1. The Board of Election Commissioners had no power to order an election of a Board of Freeholders.
2. The Board of Election Commissioners had no power to call a special election.
3. The authority to cause a Board of Freeholders to be elected, to pass a charter, is vested in the city—that is to say, in the Board of Supervisors.
4. Legislation is needed to give effect to § 8, art. xi, of the Constitution.
“ An Act to regulate the registration of voters, and to secure the purity of the elections in the City and County of San Francisco,” approved March 18th, 1878, (Laws of 1877-78, p. 299) is the statute under which the Board of Election Commissioners acted in the matter of electing fifteen freeholders to frame a charter for the City and County of San Francisco, and we will briefly refer to two or three sections of the act.
Section 1 provides that “ the conduct, management and control of elections and matters pertaining to elections in the City and County of San Francisco, is hereby taken from the Board of Supervisors and vested in a board of five commissioners, who shall consist of the Mayor, Auditor, Tax Collector, the City and County Attorney, and the City and County Surveyor of said city and county, which board is hereby invested with all the powers and charged with all the duties as to elections and matters pertaining to elections now vested in said Board of Supervisors.”
Section 33. “ All provisions for carrying out the registration and election laws of said City and County of San Francisco shall be made by the Board of Election Commissioners, and demands on the treasury authorized or allowed by them for such purposes, shall have the same force and effect as if authorized or allowed by the Board of Supervisors.”
Section 34: “ All of the provisions of the Political Code touching the registration and qualification of voters and the method of calling, holding, and conducting elections, in force in [617]*617said city and county at the passage of this act, shall continue in force therein, so far as they are not inconsistent with the provisions hereof.”
Section 1056 of the Political Code provides that “ whenever a special election is ordered by the Board of Supervisors, they must issue an election proclamation, containing the statement provided for in subdivision 1 of § 1054, and must publish and post it in the same manner as proclamations issued by the Governor.”
Whatever powers over elections were vested in the Board of Supervisors by the provisions of the Consolidation Act or the Political Code, were, under §§ 33 and 34 of the Act of April 18th, 1878, transferred to the Board of Election Commissioners in express terms, and it therefore follows that the third point made by appellants—that “ the authority to cause a Board of Freeholders to be elected to frame a charter is vested in the city, or Board of Supervisors ”—cannot be sustained.
But, in the view we take of the case, it is not necessary for us to détermine what powers in respect to elections were vested in the Board of Supervisors of the City and County of San Francisco, under the provisions of the Consolidation Act and Political Code.
The provision of the Constitution (§ 8, art. xi,) is, in our opinion, sufficient for the purposes of this decision. It declares that “ any city containing a population of more than one hundred thousand inhabitants, may frame a charter for its own government * * by causing a board of fifteen freeholders * *" to be elected by the qualified voters of such city, at any general or special election.”
The only condition imposed by the foregoing constitutional provision to make such election valid, is that the freeholders must be chosen at a general or special election, and in this case that condition was fulfilled.
It appears from the transcript that a proclamation was issued by the Governor for the election of a State Senator to fill a vacancy occurring in the Eighth Senatorial District, and that that election was ordered to be held on the same day on which the election of the fifteen freeholders took place. The election to fill such vacancy was a special election under § 1043 of the Po[618]*618litical Code, which declares that “ special elections are such as are held to supply vacancies in any office, and are held at such times as may be designated by the proper board or officer.
As has already been remarked, the Constitution authorizes any city containing a population of more than one hundred thousand inhabitants to frame a charter, by causing a board of fifteen freeholders to be elected by the qualified voters of such city, at any general or special election.
It is not pretended that the election in this instance was not fairly conducted, or that there was not a full expression of the public will at such election. Indeed, it appears that the vote for the Board of Freeholders was much larger than that cast for Senator, and it also appears that the respondent received at such election a very large majority of the popular vote. The honesty and fairness of the election are conceded, and it is simply claimed that there was no authority for holding it.
It'is argued in the first place, that the power to call the election resided in the Board of Supervisors, and the point is also taken, that action on the part of the Legislature was essential to enforce and give effect to the provision of the Constitution. The first point has already been disposed of, and the second is not, in our opinion, well taken. Legislative action was not necessary to enable the inhabitants of the City and County of San Francisco to act, under § 8, art. xi, of the Constitution, in the matter of framing a charter. The Constitution nowhere provides either expressly or by implication for such legislative interference, and the construction placed upon the provision of the Constitution under discussion might result in entirely defeating its operation. If this ground can be sustained, it would result that hostile action, or even non-action on the part of the Legislature, would prevent the inhabitants of the city from exercising a power expressly given to them in clear and unmistakable language by the Constitution. It was manifestly the intention of §§ 8, 13, and 14, art. xi, as well as of § 25, art. iv, of the Constitution, to emancipate municipal governments from the authority and control formerly exercised over them by the Legislature, and this is the more apparent in view of the fact that the charter framed by the Board of Freeholders, and ratified by the vote of the people, cannot be amended by the Legis[619]*619lature. It (the charter) shall he submitted to the Legislature for its approval or rejection as a whole, without power of alteration or amendment, and when so approved it cannot be amended except upon proposals submitted by legislative authority to the voters of the city and county.
In this connection, the language of the Supreme Court of Iowa appears applicable: “Upon considerations like this, the courts have held that the voice of the people is not to be rejected for a defect, or even a want of notice, if they have in truth been called upon and have spoken. In the present case, whether there was notice or not, there was an election, and the people of the county voted, and it is not alleged that any portion of them failed in knowledge of the pendency of the question, or to exercise their franchise.” (Dishon v. Smith, County Judge, 10 Iowa, 218.)
We have arrived at the conclusion that the election of March 30th, 1880, should be declared valid, the more willingly for the reason that no possible injury can result from such a determination. The people of the City and County of San Francisco have, after a fair and full election, regularly and honestly conducted, expressed their wish that a charter should be prepared for their ratification, and the charter so prepared by the respondent and his associates must, before it can become a law, receive such ratification, and after that, the approval of the Legislature.
In our opinion the judgment of the Court below should be affirmed, and it is so ordered.
Sharpstein, J., Myrick, J., MoKinstey, J., Boss, J., and McKee, J., concurred.