This Charter of the City of Berkeley was originally adopted in 1909 and has been amended from time to time to keep pace with changes made in the State Constitution and with changing times. A complete list of all Charter amendments, repealed sections, and statutory references is set forth in Appendix A.

The present Charter may be referred to as a Freeholders Home Rule Charter. The City of Berkeley has full control over its municipal affairs and such control extends to all municipal affairs even though they may not be mentioned in the Charter. In other words, as to municipal affairs, the Charter instead of being a grant of power is, in effect, a limitation of power. Therefore, the City of Berkeley has complete authority over all municipal affairs subject only to the limitations and restrictions specified in the Charter or the Constitution of the State. A review of the historical development of the Charter is included here to provide better understanding of the Charter.

The original Town of Berkeley was incorporated on April 4, 1878 by an Act of the State Legislature, Stats. 1878-79, Chapter DLXV, Pg. 888. The Town had no Charter but was able to act as a Town and was governed in its actions by the laws of the State and by its Articles of Incorporation.

The first Charter was adopted under authority of the State Constitution and approved by the legislature on March 5, 1895, and may be found in Stats. 1895, Pg. 407. Chapter XI, Sec. 6 of Art. XI of the State Constitution in 1895 authorized cities to adopt charters but provided that all such charters were subject to and controlled by general state laws.

In 1896, Sec. 6 of Art XI of the Constitution was amended to provide that all city charters shall be subject to and controlled by general laws except in municipal affairs.

In 1908, a Board of Freeholders was elected to prepare a new Charter for the City of Berkeley. The courts of the State had decided that the charter of a city would control over general state laws on all municipal affairs whenever the specific power was given to the city in the charter. The charter was considered a grant of power and as a result the Board of Freeholders included all of the powers that they could imagine that the City would ever need in the original Charter.

In 1914, Section 6 of Article XI of the Constitution was again amended to provide that the electors of a city could amend their charters to provide that the city could make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in the charter. It was not until 1921 that the City of Berkeley took advantage of this amendment and added Section 115 to the Charter that reads as follows:

"MUNICIPAL AFFAIRS

Sec. 115. The City of Berkeley shall have the right and power to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in this Charter; provided, however, that nothing herein shall be construed to prevent or restrict the City from exercising or consenting to, and the City is hereby authorized to exercise any and all rights, powers and privileges heretofore or hereafter granted or prescribed by general laws of the State."

The Courts of the State of California have held that the effect of the 1914 amendment was to change the theory of city charters. The Charter was no longer a grant of power but became a limitation of power. In 1970, Section 6 of Article XI of the State Constitution was repealed, and the provisions discussed in this introduction formerly contained in Section 6 are now set forth in Section 5 of Article XI of the State Constitution.

In Rivera v. City of Fresno (1971) 6 C. 3d 132, 135, the court restated the principle established by a long line of court decisions that a city is sovereign in the area of municipal affairs which has adopted a provision such as the City of Berkeley Charter Section 115. The court said "Accordingly, the City is empowered to exercise full control over its municipal affairs, unaffected by general laws on the same subject matters and subject only to the limitations found in the Constitution and the City Charter."

Further review of cases establishing this principle will be found in West Coast Advertising Co. v. SF (1939) 14 C. 2d 516.

Since 1921, the Charter has been amended many times but at no time was a revision of the entire Charter attempted. Therefore, we find many provisions in the Charter that are unnecessary but if they are not limitations they do no harm. If they are limitations they have been left alone because the people want the limitation.

In general, a municipal affair is one which refers to the internal business affairs of the city. It only affects the people living in the city as distinguished from a state affair that affects all the people of the state. As stated in Bishop v. City of San Jose (1969) 1 Cal. 3d 56, at p. 62:

"‘Because the various sections of article XI fail to define municipal affairs, it becomes necessary for the courts to decide, under the facts of each case, whether the subject matter under discussion is of municipal or statewide concern.’ In other words, ‘No exact definition of the term "municipal affairs" can be formulated, and the courts have made no attempt to do so, but instead have indicated that judicial interpretation is necessary to give it meaning in each controverted case. The comprehensive nature of the power is, however, conceded in all the decisions....’"

This brief review of the development of the "municipal affairs" doctrine is intended to describe the history of the Berkeley City Charter and its scope and function.

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    Mark Numainville

    City Clerk