Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-10-20
TEE ArTossIY-egsrRAI's DEFENSE.

the moneys paid out Of the State Treasury
snder the Drainage Act. The Attorney
General takes the position that he haz no
option in the premises, because, as he
holds, the Drainage Act, having been ad-
Judged unconstitutional, was void from the
beginning. In support of this position he
cites Judge Cooley, as follows: "When
"a statute is adjudged unconstitutional it
is as if it had never been. It
constitutes a protection to no one who
" has acted under it, 1t is to be regarded
''as having never at any time been pos
sessed of any legal force" While we
do not admit that this view of the case is
deserving of unqualified acceptance, seeing
that there are judicial decisions of record
which traverse it completely notably one
OF the Supreme Court of Texas, which we
have not had time to search QUIT; yet for
the purpose of argument we will accept
this position, and we will endeavor to show
that even on grounds of hia own selection
the Attorney. General is not justified IN
proceeding for the recovery of this money
against the parties who drew 1t on the
Drainage Act accounts. We must ask the
Attorney General to go with us in a
review OF the implications of the theory ne
propounds That theory is that the Drain
age Act was void ad initis. This means
that from a legal standpoint there never
was such statute as the one referred to.
If this be the case it follows that no legal
steps were taken under the spurious Act.
There was then no levy of tax under it.
If money was paid by the people it could
not have been tax. 1t must have been
voluntary contribution. And in like
manner every other act had under the law
must have been voluntary. There being
no law in existence, all the so.called action
under it is reduced into chaos. 1t will
not do to say that there was an unlawful
tax levy. There was no tax levy at all.
II in very truth the Drainage Act is to be
regarded as if it had never been, it is
necessary to dismiss every shadow of pre-.
tense that anything was done under it.
The Attorney. General cannot hold that it
was enough of a law for one purpose, and
not enough of law for another purpose.
If it is as though it had never been, it is
perfectly clear that no basis for further
proceedings in regard to it can exist. In
annihilating the law, all that was supposed
to have been done under the law is annihi-
lated also. Thus we must conclude that
the Legislature did not enact such law
that the Governor did not sign it; that no
tax was collected under it that no con-
tracts were entered into under it; that no
work was done by contractors under it
that no warrants were drawn by the Con-
troller under it; and that no money was
paid out by the Treasurer under it. Oh
course every body knows that in point OF
fact ell these steps were taken. But the
law cannot take cognizance of them, be-
cause, as the Attorney. General points out,
the Drainage Act really never had an
existence. How then can that officer be
justified in instituting proceedings against
the citizens who cashed the warrants
From his point of view there never were
any warrants, aud therefore nobody
could have cashed them. And ii no con
tracts could have been entered into
under the Act, it follows that no contracts
were entered into; and no work was done
and no money was paid for the work. i
we are to accept the humiliation theory
we prefer to have it without illegitimat,
and capricious exceptions and conditions
It would seem clear, from the Attorney
Generals standpoint, that the only really
responsible party in this business is thu
State Treasurer. The people chose tt
volunteer contributions to what wa,
called for the sake of distinction the Drain
age Fund. There was no compulsion
There was no legislation providing for tax
alton. This money was obviously vol
unteered. Ii any wrong was done it
was done by the State Treasurer. He
seems to have given away this money, for
he had no authority for paying it out.
1t is therefore to him and his bondsmer
that the Attorney General should look il
there is to be any question of suits for the
~oooro-x, oe 4bo ,,,5,,oxv
The Attorney. General thinks he had nc
discretion in the matter. We are SO un
fortunate as to differ from him on that
point. We thiak that from his OWE stand.
point he is not warranted in undertaking
these proceedings. But we do not accept
his standpoint as the right one. As We
have remarked above, the validity Of
contracts entered into under an unconstitu.
tional law has been maintained by at least
one State Supreme Court, and there can,
we submit, be no question that all the
equities are on the eide OF that position.
We do not for moment doubt the zeal
and good faith of the Attorney General.
We are convinced that he is doing what he
believes to be his duty. But we must In
sist upon our belief that he has taken an
erroneous view of his obligations, and one in
which we are satisfied the Courts viii not
uphold him. Putting aside all technical and
sophistical argument, it is certain that con-
tracts were made in good faith under the
Drainage Act, and that the money paid out
was honestly earned. And because these facts
are beyond controversy we believe that no
Court will refuse to protect those who are
sought to be victimized under the plea of
the invalidity of the law. We have al
ready shown how mischievous would be
the consequences OF such construction
as the Attorney General has put upon the
matter, and 1t Is not to be denied that
evil and not good to the State would result
from the success of his proceedings. But
we think we have shown that even from
his own standpoint he is without justiGca-
ton for these suits, and that consequently
he is in contravention of some law, and of
all equity.
PRECIPITATING THINGS.