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friends among its members. The result was a compromise, and our first constitution provided that “the legislature shall establish a system of county and town governments, which shall be as nearly uniform as practicable throughout the state."1 Our present constitution, adopted in 1879, provides that "the legislature shall establish a system of county governments, which shall be uniform throughout the state; and by general laws shall provide for township organization, under which any county may organize whenever the majority of the qualified electors of such county, voting at a general election, shall so determine." 2 In spite of this mandate in each of our two constitutions, the legislature has never provided for the organization of townships, simply because there never has been any need of them. The physical geography of California speaks so emphatically in favor of the county type that townships have never been able to gain a foothold.
32. Judicial Townships. — Governmental townships are the kind contemplated in section 4, article XI, of the constitution. We have, however, judicial townships in California. Every county in the state, except the city and county of San Francisco, is divided by the board of supervisors into as many such townships as the board considers necessary. A judicial township is not a public corporation; it owns no property and collects no tax. It is an election district for choosing justices of the peace and constables. The salaries of these officers are paid by the county except where they are permitted to retain the fees which they collect. The township limits territorially the civil jurisdiction of the justice's court, but its criminal jurisdiction extends throughout the county. Townships include cities, or parts of cities, as well as country districts, so that every portion of the state is located in some township. This is true even of San Francisco, which is really a township, as well as a city and county.
1 Constitution of 1849 — article XI, section 4. 2 Article XI, section 4. 3 See Kahn vs. Sutro, 114 Cal. 334.
33. The Formation of Counties.1 -- When California was a province of Mexico it was divided into ten large districts for governmental purposes. The first state legislature that met after the adoption of the constitution of 1849, realizing that these districts were too large to serve as counties for the new state, passed a bill (Feb. 18, 1850) dividing the state into twenty-seven counties. As the population has increased new counties have been formed from time to time, by subdividing the older ones, until now (1913) the number is fifty-eight (Appendix C). Each of these new counties except the last — Imperial county-has been formed by a special act of the legislature. Imperial county was formed according to a general law which was passed in 1907; this law was materially amended in 1909. Its provisions in the amended form are as follows:
The law declares that no new county shall be formed which has a population of less than ten thousand; that no old county shall be reduced to a population of less than twenty thousand, nor to an area of less than twelve hundred square miles, by the formation of a new county; and that the boundary line of a new county shall not pass within five miles of the county seat of any county from which its territory is taken. The other conditions are so severe that the formation of further new counties is practically impossible.
1 See state constitution, article XI, section 3.
When it is desired to form a new county, a petition must be presented to the supervisors of the county from which its territory is to be taken, or, if it is to be formed from parts of two or more counties, the petition must be presented to the supervisors of the county which is to lose the greatest area. The petition must be signed by at least 50 per cent of the voters of the old county, including at least 65 per cent of all the voters living in the proposed new county. If it is to be formed from parts of two or more counties, at least 50 per cent of the voters of each county affected, including at least 65 per cent of those living in each part of the new county, must sign the petition. The petition must state the boundaries, the population, and the name of the proposed new county; and the population and area that will remain to the old county or counties.
Not less than thirty nor more than forty days after the filing of the petition, the board of supervisors must meet to determine whether or not the facts stated in the petition are true. Public notice must be given of this meeting so that friends and opponents of the proposition may appear before the board. If the board finds that the facts stated are true, and that the new county could be formed without violating any of the provisions of the law mentioned above, it must call an election in the county or counties in question.
The new county will not be formed unless 50 per cent of the votes cast in the county, including 65 per cent of those cast in the proposed new county, are in favor of the proposition. If it is be formed from parts of two or more counties, 50 per cent of the votes cast in each old county, including 65 per cent of those cast in each part of the proposed new county, must be favorable. At the same election the location of the new county seat is determined, and a set of officers for the new county are chosen to take office in case the proposition carries. The board of supervisors must canvass the election returns and publish the result, and, if the vote is in favor of the proposition, must report the matter to the secretary of state. This completes the process,
1 The law of 1907, under which Imperial county was formed, was much more liberal in its terms, as it provided that an election must be called in the proposed new county on petition of 50 per cent of the voters of the territory in question, and that the county would be formed if favored by 65 per cent of the vote cast. The wish of the voters of the balance of the county or counties from which the new county was to be taken was not considered.
except that the governor must appoint a committee of three persons
one of whom, but only one, shall be from the new county – to agree upon the terms of a business adjustment between the new and old counties.
34. The Relation between a County and the State. In the creation of new counties according to the plan just described, the board of supervisors which receives the petition, conducts the election, and declares the result, is guided in every step that it takes by state law. This means that the board in all that it does acts as the agent of the state. It is thus the state that creates the new county.
A county gets all of its power from the state. It has only such officers as are provided for, or permitted, by the state law and constitution, and they must find authority in the law or constitution for every official act. It may hold only such property as the law permits. It may collect taxes only for the purposes authorized by law, and for these purposes alone may money be taken from its treasury. The state existed before there were any counties; and counties were formed in order that the laws of the state might be enforced in every locality, and that the people might enjoy local self-government under the guidance of state law. Thus the county is entirely the creature of the state, which may of its own will abolish it, or alter its area or government in any way it may desire. We shall learn later that the relation of the county to the state is vitally different from the relation of the state to the nation.
QUESTIONS 1. Why is a California judicial township not a public corporation ? 2. Do we have congressional townships in California ?
1 The people of the state are referred to here. The legislature may exercise these powers subject to the will of the people as expressed in the state constitution.
3. How does a California county differ from a New England county? from a middle northern county ?
4. Why has township government never been established in California ?
5. How can it be said that Imperial county was formed by the state?
6. When was your county formed ? (See Appendix C.)
7. Why is a county a quasi corporation? What are its political relations to the state ?