Bingham

I concur. Each house of the legislature derives its power to “choose its own officers, and to judge of the qualifications, elections, and returns of its own members,” directly from the constitution. The fact that the words of the statute are identical with the words of the constitution is a matter of no importance. The power of the court to inquire on behalf *244 of the people into the right of any person to hold and exercise a public office is derived from the same source as that of the legislature to “choose its own officers,” etc., i. e., from the people themselves.

I dissent. In People v. Metzker, 47 Cal. 524 , the precise question involved in this case was decided. The act of March 11, 1850, which was held to be applicable to the city of Los Angeles, provided that the common council should judge of the qualifications, elections, and returns of their own members.

Mr. Justice Rhodes, speaking for the court, said: “The eighth section of article 4 of the constitution, relating to the legislative department of the state government, is as follows: ‘Each house shall choose its own officers, and judge of the qualifications, elections, and returns of its own members.’ The words of the constitution and of the statute, being indentical, should receive the same construction. It is settled beyond controversy that those words of the constitution confer upon each house the exclusive power to judge of and determine the qualifications, elections, and returns of its own members; and it follows that the common council of a city,' to which that section of the act is applicable, possesses the like exclusive authority to judge of and determine the qualifications, elections, and returns of its own members. The court, therefore, has no jurisdiction of the…

This action is brought in the name of the people of the state of California, by George A. Johnson, attorney-general, upon the complaint of Charles J. Swift, against the respondent, to oust him from the office of supervisor of the city and county of San Francisco, on the ground that he was not at the time of his election a resident of the ward of which he was elected, and to recover the penalty of five thousand dollars provided for by the statute in such cases. There was a demurrer to the compliant on all of the statutory grounds, which was sustained, but we are informed by the briefs of counsel that the demurrer was sustained on the sole ground that the court had no jurisdiction to hear and determine the cause. This was based upon the ground, which is attempted to be maintained in this court, that by the consolidation act of the city and county of San Francisco the board of supervisors “shall be the judge of election returns and qualifications of its own members.” (Consolidation Act, sec. 67, p. 16.)

It was held in an early case that similar language to this, applied to the common council of the city of Los Angeles, gave to the council the exclusive right to pass upon and…