The opinion
RICHARDS, J.,
pro tem.,
Concurring.
I concur in the foregoing conclusions but not in much of the reasoning which supports it. By the terms of the San Francisco charter prior to the amendment of section 14 of chapter 11, article XI thereof, adopted by the people in 1922 and approved by the legislature in 1923, the use of voting machines in municipal elections was permitted and might have been provided for by whatever municipal body had been invested by the charter with control over “all matters pertaining to elections.’’ The board of election commissioners was that body according to the express terms of section 1, chapter 1, article XI of the charter, and it seems t.o me beyond question that if the election commissioners, prior to said charter amendment of 1922, could have found a model of voting machine which would have provided for preferential voting, or, in other words, had been so constructed that “the ballot shall be arranged on the machine in the same form in each assembly district as provided for the printed ballot” the election commissioners would have had power to install such voting machines, and their act in so doing would have been merely an administrative act. It was probably the fact that such voting machines were not obtainable and it may be not possible of construction that led to the amendment of the charter in 1922, by that amendment the people of San Francisco did not purport, nor evidently intend, to take away or add to the powers already possessed by the board of election commissioners, nor did they do so; but they did decide by said amendment to the charter that in the event of the use of voting machines the preferential system of voting, theretofore provided for in said charter, should he abandoned and that the general laws of the state should govern “the arrangement of the ballot, the counting of the votes, the canvass of returns and the determination of the result.” I have no doubt the people of the municipality had power to read into their charter this alternative system
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of voting, dependent upon the exercise of an administrative power already vested in their boards of election commissioners. Whatever of legislation was achieved in the way of abandoning the preferential system of voting was accomplished by the people in amending their charter and not by the board of election commissioners in the exercise of an administrative power at all times both before and since said amendment possessed by said board; namely, that of determining to make use of voting machines in municipal elections.