Desmond

I concur in the judgment, and in the views expressed in the opinion written by Mr. Justice Sharpstein, save as to the conclusion reached in the latter part of the opinion, that the entire act is unconstitutional; as to that, I express no opinion. In regard to the other points referred to in the opinion, I think that the Constitution, directly in two instances, impliedly in one, has placed before the people of the City and County of San Francisco, three courses, either of which may be pursued, viz:

[Morrison, C. J., and Boss, J., were not present at the argument, and did not participate in the decision.]

The plaintiff alleges that on the 1st day of J une-, 1880, he presented to the defendant, who then was, and still is, the *246 Auditor of the City and County of San Francisco, for allowance, a demand on the treasury of said city and county, which it was the duty of said Auditor to allow, under an act of the Legislature, entitled, “ An Act to provide for the organization, incorporation, and government of merged and consolidated cities and counties of more than one hundred thousand population, pursuant to the provisions of § 7, art. xi, of the Constitution of this State. Approved April 24th, 1880.” The defendant refused to allow said demand, and the plaintiff applied for and obtained from this Court an alternative writ of mandamus to the defendant, requiring him to allow said demand, or to show cause for not doing so. The defendant answered by alleging that the act under which the plaintiff presented his demand for allowance is unconstitutional, and that it was not the duty of defendant, as Auditor aforesaid, to allow any claim or demand thereunder.

The act in question is commonly known as the “ McClure Charter,” and it will be so designated in this opinion. Although there is but…