Kahn

The plaintiff brought this action to restrain the board of election commissioners of San *319 Francisco from calling an election for city and county officers at the coming general election, and from incurring the expenses attendant thereon, claiming that under the provisions of the County Government Act of March 24, 1893, as construed in the case of Hale v. McGettigan, ante, p. 112, recently decided, there can be' no election for such officers until the general election in 1898. Judgment was rendered in favor of the defendants upon a demurrer to the complaint, and the plaintiff has appealed therefrom.

The question presented for determination is whether the above act of 1893 applies to the city and county of San Francisco, and the determination of this question depends upon the character of that body corporate in its relation to the other portions of the state—whether it is to be regarded as a city or as a county. One feature by which a city is distinguished from a county, in this state, is the source from which its authority is derived. The powers to be exercised under a county government are conferred by the legislature, irrespective of the will of the inhabitants of the county,…

I am unable to agree with the conclusion reached by'my associates. I fully concur, however, in the view that the consolidated city and county is a municipal corporation. The Consolidation Act of 1856 realized the intention stated.in its title. It repealed the several charters theretofore existing of the city, and it consolidated the government of the city and *336 the county. The two governments were merged, and both—so far as rights and liabilities and public functions were concerned—were continued in a new corporation then created—the consolidated city and county. It succeeded to all the property rights and liabilities of both, and its officers performed all the functions which had been performed by county officers, and also all the functions imposed upon them which were purely municipal; all were, however, the officers of the municipal corporation. In no sense can it be said that some were county officers and that some were city officers. The sheriff and county clerk are as much officers of the municipal corporation as the mayor or the police judge.. Whatever may be said of their powers and duties, they are part and parcel of the corporate organization known as the city and…