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upon the treasury of the county from which such action was removed; and such auditor shall forward to said treasurer and auditor of the county from which said action was transferred, as aforesaid, a certified copy of the total amount of costs allowed by the court, giving each item as certified to him by the county clerk and the court, and the auditor receiving such certified copy of said costs allowed shall enter the same in his books as a charge against the treasury of his county, and the county treasurer of the county from which such action was removed must inmediately, upon presentation, pay said warrant out of the general fund of said county; or, if at the date of presentation there is not sufficient moneys in the said general fund to pay the same, he must indorse upon said warrant, "Not paid for want of funds;" and said warrant must be registered, and shall draw interest at the same rate and be paid in the same manner as though it had been drawn by the auditor of the county where the indictment was found. [New section, approved February 28, 1874; Amendments 1873-4, 175; took effect immediately.]

4347. Provisions of code, to what actions to apply.

SEC. 4347. Sections forty-three hundred and forty-five and forty-three hundred and forty-six of this code shall apply to all criminal actions which have been or may be removed for trial since the first day of January, eighteen hundred and seventy-three. [New section, approved February 28, 1874; Amend. ments 1873-4, 175; took effect immediately.]

4348. Officers entitled to fees-Compensation of supervisors.

A new section was added by the unconstitutional act of April 27, 1880: See sec. 4000, and note,











This entire title "is intended as a system or plan under which cities may be organized and governed. That is the sole purpose of that title, and it is not declared to be applicable to any existing city, or city and county:" Ex parte Simpson, 47 Cal. 127, 128.





A system of town governments, as required has never been adopted: Ex parte Wall, 48 Cal. 280.

Municipal corporations: See sec. 4356,

and note.



4354. General powers.

SEC. 4354. A city is a body politic and corporate, with the general powers of a corporation, and the powers specified or necessarily implied in this title or

in special laws.

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4355. Distribution of powers.

SEC. 4355. Every city has legislative, executive, and judicial power. Its legislative power is vested in a common council; its executive power in a mayor and his subordinate officers; and its judicial power in a police court.

Police judge a judicial officer: People v. Henry, 62 Cal. 557.

4356. City declared by legislature.

SEC. 4356. Every subdivision of a county not exceeding in extent six square miles, with not less than two thousand inhabitants, with its metes and bounds fixed and defined, and declared by act of the legislature to be a "municipal corporation," is a city, with the powers conferred by this title.

An Act to provide for the classification of municipal corporations.
[Approved March 2, 1883; 1883, 24.]

Classes described.

SECTION 1. All municipal corporations within the state are hereby classified as follows: Those having a population of more than one hundred thousand shall constitute the first class; those having a population of more than thirty thousand, and not exceeding one hundred thousand, shall constitute the second class; those having a population of more than fifteen thousand, and not exceeding thirty thousand, shall constitute the third class; those having a population of more than ten thousand, and not exceeding fifteen thousand, shall constitute the fourth class; those having a population of more than three thousand, and not exceeding ten thousand, shall constitute the fifth class; those having a population of not exceeding three thousand shall constitute the sixth class.

Determination based on census.

SEC. 2. The census taken under the direction of the congress of the United States in the year eighteen hundred and eighty, and every ten years thereafter, shall be the basis upon which the respective populations of said municipal corporations shall be determined, unless a direct enumeration of the inhabitants thereof be made, as in this act provided, in which case such direct enumeration shall constitute such basis.

Question of reorganization.

SEC. 3. The council, board of trustees, or other legislative body of any municipal corporation, may at any time cause an enumeration of the inhabitants thereof to be made, and in such manner and under such regulations as such body may by ordinance direct. If upon such enumer ation it shall appear that such municipal corporation contains a sufficient number of inhabitants to entitle it to reorganize under a higher or lower class, the common council, trustees, or other legislative body shall, upon receiving a petition therefor signed by not less than one fifth of the qualified electors thereof, submit to the electors of such city or town, at the next general election to be held therein, the question whether such city or town shall reorganize under the laws relating to municipal corporations of the class to which such city or town may belong. And thereupon such proceedings shall be had and election held as provided in the general law for the organization, incorporation, and government of municipal corporations. If a majority of the votes cast at such election shall be in favor of such reorganization, thereafter such officers shall be elected as are or may be, and at the time prescribed by law for municipal corporations of the class having the population under which such reorganization is had; and from and after the qualification of such officers, such corporations shall belong to such class.

An Act concerning municipal corporations.
[Approved March 9, 1885; 1885, 31.]

Validating acts of municipal corporations.

SECTION 1. All municipal corporations, whose incorporation has been or may hereafter be authenticated by an order of any board of supervisors in this state, declaring the same incorporated as a municipal corporation, and a certified copy of which order has been or may hereafter be filed by such board of supervisors in the office of the secretary of state, and which have heretofore been or may hereafter be organized under a certificate from the secretary of state, showing such order to have been filed in his office, and which thereafter have acted, or hereafter may act, in the form and manner of a municipal corporation, under the provisions of an act entitled "An act to provide for the organization, incorporation, and government of municipal corporations," approved March thirteenth, eighteen hundred and eighty-three, are hereby declared to be and to have been municipal corporations from the date of filing the certified copy of said order of the board of supervisors with the secretary of state; and all the acts of said municipal corporations heretofore exercised, or which may be hereafter exercised, according to the act aforesaid, are hereby validated and declared to be legal. SEC. 2. This act shall take effect immediately. Municipal corporation bill: See post, in appendix. Municipal corporations.-The following is appended by the code commissioners, as a comment upon this section and upon this title generally: "This title does not at present af

fect the existing statutes governing any incorporated city or town in the state. It is unnecessary here to repeat the argument in favor of this title, or set forth the great benefits which would flow from a uniform system of municipal government. Were all the cities of the state

being conducted under this general law, the force of the example and the uniformity of construction which would necessarily obtain for every provision would save much expense, in litigation and otherwise, to the entire state. Under this section all that is necessary is for the legislature to declare the citizens of a certain town, describing it by metes and bounds, to be a municipal corporation and to provide for its first officers (see sec. 4366, post), and it is then a city under this title. If any city now incorporated desires to come in under this title in addition to the sections declaring it a municipal corporation, a section repealing all existing acts relating to it as an incorporated city or town is all that is requisite."

See the "act to provide for the organization, incorporation, and government of municipal corporations," approved March 13, 1883, appended to this code.

"Municipal corporation" defined.-By the use of the term "municipal corporation" in the above section and in section 4366, in connection with the word "city," there has grown up in this state a peculiar meaning in the legislative vocabulary for the term "municipal corporation." In subsequent enactments it will be noticed that counties are not considered "municipal corporations," but that cities are meant thereby. The recent enactment of the legislature of 1883 in the so-called "county government" and "municipal corporation" bills is a conspicuous illustration.

Municipal corporations, in the broad sense, include cities and counties. They are public institutions, created for public purposes; they are political subdivisions or departments of the state, governed, regulated, and constituted by public law: Payne v. Treadwell, 16 Cal. 220; Hart v. Burnet, 15 Id. 567, 573; San Francisco v. Canavan, 42 Id. 541. These corporations have a twofold capacity, a governmental and a private: Holland v. San Francisco, 7 Id. 361; Gas Co. v. San Francisco, 9 Id. 453.

Powers.-Municipal corporations in this country of a more recent date depend for their existence upon charters: Herzo v. San Francisco, 33 Cal. 134. In Great Britain, for the most part, they exist by prescription: Id. With us the powers of municipalities are limited to those expressly given by the charter, or which are necessary to the exercise of those given: Dunbar v. San Francisco, 1 Id. 355; Low v. Marysville, 5 Id. 214; Oakland v. Carpentier, 13 Id. 540; Herzo v. San Francisco, 33 Id. 134; Douglass v. Placerville, 18 Id. 643; Zottman v. San Francisco, 20 Id. 96; San Francisco v. S. V. W. W., 48 Id. 493; Glass v.

Ashbury, 49 Id. 571; McCoy v. Briant, 53 Id. 248. The charters must be strictly construed: Douglass v. Placerville, 18 Id. 643; Le Conteulx v. Buffalo, 33 N. Y. 333; Johnson v. Louisville, 11 Bush, 527; Leonard v. Canten, 35 Miss. 189. For example, the prescribed mode of conveying its property must be observed by the corporation: Holland v. San Francisco, 7 Cal. 361; an ordinance for a lease of realty, without the requisite public offer, is void: S. F. & O. R. R. Co. v. Oakland, 43 Id. 503. Where the mode of contracting is "specially and plainly prescribed and limited, that mode is exclusive and must be pursued, or the contract will not bind the corporation:" McCoy v. Briant, 53 Id. 248, 250. So also Argenti v. San Francisco, 16 Id. 283; McCracken v. San Francisco, Id. 620. "The rule is general, and applies to the corporate authorities of all muni cipal bodies-when the mode in which their power on any given subject can be exercised is prescribed by their charter, the mode must be followed. The mode in such case constitutes the measure of the power:" Zottman v. San Francisco, 20 Id. 102; Murphy v. Napa County, Id. 503; French v. Teschemacher, 24 Id. 550; Herzo v. San Francisco, 33 Id. 145; People v. Tomlinson, 35 Id. 507; McCoy v. Briant, 53 Id. 248. Municipal corporations may ratify con tracts made without authority, where it could have entered into the contract in the first place: People v. Swift, 31 Id. 26; Argenti v. San Francisco, 16 Id. 255. Where the authority to do an act could have been conferred only by ordinance, ratification can only be by ordinance: McCracken v. San Francisco, Id. 591.

Those who contract with a municipal corpora tion are bound to know the extent of the pow ers of its officers: Wallace v. San José, 29 Cal. 180; McCoy v. Briant, 53 Id. 247.

Powers of supervisors: See ante, sec. 4016,

and note.

Liabilities.-Municipal corporations are not liable for negligence of persons acting in the fire department: Ioward v. S. F., 51 Cal. 52; nor for injury occasioned by neglect of city officers to repair streets: Winbigler v. Los Angeles, 45 Id. 36; Tranter v. Sacramento, 61 Id. 276; in the absence of statute making them liable. But the legislature cannot create a claim where the corporation was never legally or equitably bound: Hoagland v. Sacramento, 52 Id. 142. And see Boone on Corporations, secs. 300, 301.

Liability on contracts: See supra, under "Powers." Liability for riots: See post, sec. 4:52, and


4357. Boundaries, how changed.

SEC. 4357. The boundary of a city may be changed by an act of the legislature, on petition of a majority of the common council, presented in pursuance of a city ordinance, or, as hereinafter provided, by the board of supervisors.

4358-4365. Residents adjoining city uniting therewith.
Sections 4358 to 4365, inclusive, were repealed
by act approved March 28, 1874; Amendments
had been, however, previously superseded by
1573-4, 177; took effect immediately. They
the operation of a separate act relating to the
same subject-matter, approved February 1,

1972; 1971-2, 50. This last-named act, entitled "An act to enable the inhabitants of territory sale thereto," was repealed by act approved adjacent to any city in this state to annex th March 23, 1874; 1873–4, 535.

4366. Act to fix time of the first election.

SEC. 4366. The act of the legislature declaring a city to be a "municipal corporation" must fix a day for the first election of city officers, and fix the number of members of the "common council" to be elected for the first year. 4367. First election, when and how held.

SEC. 4367. Notice of the first election of city officers must be given by the county judge of the county, by publishing the same in a newspaper published in the city for four weeks successively, designating the officers to be elected, the polling-places, and the officers of election. The returns must be made to the county judge, who must count and declare the vote, and issue certificates of election.

4368. Who are city electors.

SEC. 4368. The qualified electors of the city who have resided within the city limits for thirty days next preceding the election are qualified to vote at all city elections.

4369. Officers.

SEC. 4369. The common council must, during the first year, by ordinance, fix the term of office of all elective officers, and the time when they must be elected, and provide for the appointment of other necessary officers, including city clerk, city attorney, and treasurer, and fix their terms and amount of their bonds. [Amendment, approved March 30, 1874; Amendments 1873-4, 57; took effect July 6, 1874.]

4370. Officers of cities.

SEC. 4370. The elective officers of cities are: a mayor, a marshal, a police judge, assessor, and collector of taxes, and a common council, consisting of not less than three members. They must be electors of the city, and qualify by taking the statutory oath of office, and, except the first officers elected, hold office for a term to be fixed by the common council, not exceeding two years. [Amendment, approved March 30, 1874; Amendments 1873-4, 58; took effect July 6, 1874.]

Cited as to police judge in People v. Henry, 62 Cal. 557.

4371. Direct taxes.

SEC. 4371. The direct taxes imposed by the common council in any one year must not exceed two per centum of the valuation of property within the city. 4372. Condemnation of private property for city use.

SEC. 4372. Whenever it becomes necessary for the city to take private property for the purposes of laying out or altering streets or alleys, and the council cannot agree with the owner thereof as to the price to be paid, the council may direct proceedings to be taken under Title VII., Part III., of the Code of Civil Procedure, to procure the same.

See sec. 1237, Code Civ. Proc.

4373. Vacancies in office.

SEC. 4373. If any person elected to a city office removes from the city, absents himself for more than thirty days without leave from the council, or fails to qualify within ten days after election, his office is vacant.

Stats. 1850, p.

sec. 33.


4374. Official oath and bond.

SEC. 4374. All city officers, before entering upon their duties, must take the oath of office. The marshal, attorney, clerk, assessor, collector, and treasurer,

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must also give a bond, with sureties to be approved by the mayor, payable to the corporation by its corporate name, in such penalty as may be prescribed by ordinance, conditioned for the faithful performance of the duties of their office, and a like bond may be required of any officer whose office is created by an ordinance. Should the bond of any city officer become insufficient, he may be required to give additional bond; and upon his failure so to do, his office must be deemed vacant. [Amendment, approved March 30, 1874; Amendments 1873–4, 58; took effect July 6, 1874.]

Stats. 1850, p. 91, sec. 30.



4385. Executive officers of a city.

SEC. 4385. The executive officers of a city are the mayor, marshal, and such officers for the assessment, collection, auditing, safe-keeping, and disbursing the revenue and keeping the records and journals of the city, as the common council may provide.

4386. Powers of mayor.

SEC. 4386. The mayor has power:

1. To nominate, and with the consent of the common council to appoint, all non-elective officers of the city provided for by the common council, including city attorney, secretary of the council, and city treasurer;

2. To suspend, and with the consent of the common council to remove, any non-elected officer, stating in the suspension or removal the cause thereof;

3. To cause the ordinances of the city to be executed, and to supervise the discharge of official duty by all subordinate officers;

4. To communicate to the common council, at the beginning of every session, and oftener if deemed necessary, a statement of the affairs of the city, with such recommendations as he may deem proper;

5. To recommend to the common council such measures connected with the public health, cleanliness, and ornament of the city, and the improvement of the government and finances, as he deems expedient;

6. To approve all ordinances of the common council adopted by it, and in case the same do not meet his approbation, to return the same, with his objections, within five days after he receives the same. [Amendment, approved March 30, 1874; Amendments 1873–4, 59; took effect July 6, 1874.]

The original section, which contained assessor and collector of revenue among the appointive

officers, was founded on Stats. 1850, p. 87, sec. 22.

4387. Accounts and demands, how audited and paid.

SEC. 4387. All accounts and demands against said city must be audited by the president of the common council, and no money must be drawn from the city treasury unless upon the certificate of the president, by order of the council. The certificate must be drawn upon the treasurer of the city, and must specify the fund out of which the same is payable. The treasurer must pay same out of any money in his hands belonging to such fund.


Stats. 1850, p. 87, sec. 19.

4388. Mayor, president of the common council.

SEC. 4388. The mayor is the president of the common council, must sign the journals thereof, decide by his voice all tie votes, must sign the warrants on the

city treasurer, and is the keeper of the city seal.

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