Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-10-20
CARD FROM ATToaNEy-aEsERAL HART.
Eas the AttorneY-General Discretionary
Power?

Ids hEC0RD- UNION: In your Issue OF
the 18th inst. you addressed an editorial to
"Mr. Attorney General" in which you
undertook TO demonstrate that he made a
mistake in proposing to institute proceed
ings for the recovery of the money paid from
the State Treasury under the so-called Drain
age Act.
It IS not my custom, Mr.. Editor, to permit
myself to be drawn into public print by the
hostile criticisms Of those who are unfriendly
to ne, but in this instance it seams to me
that the character Of your article was such
that it could only operate to influence the
popular mind against what conceive to be
an undoubted official duty, and, in defereace
to the opinions of those who have placed me
in my present position, beg leave to be per-
mitted TO state through your paper the posi-
ton which l have been compelled to take
upon this important question.
l am fully aware, Mr.. Editor, that it has
not been your custom TO publish reckless and
extravagant assertions in the RECORD MON,
but in the editorial TO which / have made
reference, your discussion of the question in.
volved demonstrates an utter misconception
of the law which governs the Attorney-Gen-
eral in the performance Of his official duties,
and of the nature of the functions which that
officer is permitted to exercise lis unneces-
ssry, Mr.. Editor, for me to seek to sustain my
| original opinion as TO the constitutionality of
the Act. 1t is sufficient here for me to say
| that, as AN original proposition, it always has
| been, and now is, my opinion, that the So
| called Drainage Act does not violate any pro-
| vision of the Constitution, and that in this
opinion have the concurrence of Mr.. Jus
tice Sharpstein, whom | recognize as the peer
of any of his associates on the Supreme
| bench, and of all the distinguished lawyers
with whom I have conversed since the ques-
ton was first discussed. am also pleased to
| be able TO inform you, Mr.. Editor. that this
opinion is not in any respect, based upon any
| friendship for the system attempted TO be
established by the Act, for it is q fact known
to all who conversed with me upon the sub
| ject that | was always opposed to its passage,
and after its passage was in favor Of its re-
peal. Unfortunately for my opinion. how
ever, and for the position which you have
assumed in the matter, the decision Of the
| Supreme Court possesses the force of law,
and it becomes necessary for us TO accept as
unconstitutional all acts which that tribunal
determines to be SO. That Court having af-
| frmed the unconstitutionality of the so.called
Drainage Act. it only remains for US to ascer-
| tain tie consequences which must follow the
| decision, and among other things what ere the
! COSS=QueHG Qu-ic5 VI bU0 AbSOTut1-OSuerdl,
| AS to the propriety of publishing an edito-
rial such as the one to which reference has
been herein made, you, Mr.. Editor, must be
considered the most competent judge. That
| it was addressed to an officer whose duties
| are already defined by law, would make it
clearly permissible, If it had contained an
unimpassioned argument upon the principles
which should control him in his official con-
duct but if it contained a specious character
of reasoning, not suitable to be addressed to
the judicial mind, coupled with odious COM
PARSONS intended to improperly embarrass
an officer in the performance of duty clearly
epjoined by law. its purpose must be con-
sidered to have been Illegal, and its
effect, il any, simply outrageous. Your own
good sense Mr.. Editor, teaches you that an
officer must act upon his own Judgment in
order to satisfy his official conscience and if,
ia this instance, it is the plain duty of the
Attorney General to institute the proceedings
named in your editorial, it is to be hoped
that, whatever the consequences, the per-
forlnance of that DUTY will mest with your
hearty approval. It would afford NE the
greatest pleasure to be able to conscientiously
| avoid this unpleasant duty and if there be any
person, not excepting your learned self MIR.
Editor, who can point out to me-, in any book
of law, anything that authorizes or even per
mits, person occupying the position of
Attorney General to exercise his discretionary
powers in matters of this nature, am free to
say that Will eheerfully exercise these pow
ers in favor Of these who, in good faith,
have expended time and money under the
said Act of the Legislature; but until such
authority is shown, to ask me to do otherwise
than enforce the law in this instance, is TO
ask me to wink at the unlawful payment of
the public funds, and this, Mr.. Editor, no
severity of criticism can induce or coerce me
to dc.
But you say. Mr.. Editor, that in proposing
to commence these actions, Mr. Attorney
General appears to introduce to all such deal
ings the Objectionable and immoral principle
that cheating is permissible, or even obl;ga-
tory" Permit me, Mr.. Editor, to assure you
that in the enc sentence above quoted you
have demonstrated either disiDgeniousness
that is not at all complimentary to your asu-
ally candid journal, or else an utter Ignorance
as 20 the nature OF the Attorney Generals
duties. Il must not be forgotten. Mr.. Edi-
ment are not vested in the Attorney General,
and the policy of a State, whether honest o.
dishonest, is introduced" not by
executive, but by legislative Of
ficsrs il is to be found in the Coz
stitution and the laws, and whether
that policy BE- honest or not, the laws must
be enforced by those who are sworn TO exc
cute them. The AttorreyG eneral is power
less whenever he seeks TO do more than ask
for the enforcement of the law, and if that
law, when enforced, operates uniustly 1t
would then be in order for you, Mr. Editor,
to visit your criticisms upon those who made
the law.
When you charge me with introducing
| immortality into the States policy, | am
again reminded that the morals of a State ars
determined by its policy, and that its policy,
in turn, huds its source in the people who
draft its Constitution aud frame its laws. To
illustrate, Mr.. Editor: The commencement
of the threatened proceedings can avail moth
| ing unless the law commands that the money
| be repaid, because, if such be not the COM
mand of the law, the action must fail.
But. Mr.. Editor, the very policy which
you have characterized as being dishoness
has been adopted in Section 80 of Article OF
the Constitution, as part of the.settled poll
cy of the State. By that provision the Leg
islature itself-a body possessing great polit-
zeal powers-is expressly prohibited from au-
thorizing the payment out Of the State Treas
ury Of claims such as those which it is the H.
tention of the Attorney General to endeavor
to recover. l shall not charge you, Mr..
Editor, with disloyalty because Of the attack
you have thus inadvertently made upon the
| principles which our Constitution atfirins to
| be Just, but shall content myself with calling
| YOUR abbSuttOH W idCSs LUX PODICheiJ
OF this provision of the Constitution, Mr..
Editor, beg leave respectfully to call your
attention to the fact that in the case of The
People vs. Parks, recently decided by our
| Supreme Court, the so.called Drainage Act
was held to be unconstitutional, and it is net
true, as you seem to suppose, that an uncon-
stitutional Act is valid until it ia held to be
void. Within the limit of It's constitutional
power the Legislature may act, but when 1t
transcends that limit its act is void db tnitio.
Judge Cooley says: when statute is ad-
Judged to be unconstitutional it is as If it had
never been. 1t constitutes
protection to no one who has acted under it.
It is to be regarded as having never at any
time been possessed of any legal force
| We. therefore, are to consider this question
as if the Act had never been passed. Fol-
lowing this view our own Supreme Court in
the case of Doane ct al. VS.. We'll, decided
October G, 1881, refused to compel the Treas
urer to pay warrants Issued under the So
called Drainage Act, that were issued by the
Controller before the constitutionality of said
Act was questioned, for work done IN good
faith By parties who supposed the said Act
to be valid. Now, Mr.. Editor, will you be
kind enough to point out TO me the difference
between Dosne ct al, who seek payment for
work done in good faith under said Act. aud
those who have received payment for work
done under the same Act and under the same
circumstances? What high moral principle
| Mr. Editor Ia fhera u,bich xunuId