Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-02-12

rum present Journal OF the last meeting read
Mr. BAKER submitted a petition from citizens OF
Santa Clara county, requesting the passage OF A. B.
III. Judiciary.
Mr. SATTERwHTTE moved that the resignation Of
the Secretary be accepted in order that another
retary might be elected.
Mr. DAtIs-Mr President, before that motion
comes to vote wish to state to the Senators that
| received note from Mr. Boruck Yesterday morn
ing, prior to his departure IN which ne requested
me 10 state that his resignation intended to be
final and final and that it his desire that
his resignation be accepted. At the same time he
wished me, on his behalf to thank all of the Seua-
tors OF this body-the Republicans and Democrat Is
and Workingmen alike-for the support and the
kindness which he had received at their hands
always since he became officer OF this Senate one
year ago If it were not for this intmatIou from
him, or this request, should have voted against
ceiving his resignation; but at his request, am
obliged TO vote for it.
Mr.. Borucks resignation was accepted by viva
voce vote.
Mr.. JoHNsoN-I nominate James A. Orr, our pre-
sent Assistant Secretary for Secretary Of the Senate
Mr.. Orr was elected by unanimous vote
Mr.. JoHN5 ON now place in nomination Frank
T Ryan, to take the place OF the Assistant Secretary
at the desk.
Mr. CHENEY i place in nomination the name of j.
r. Bnerly,
Mr.. TRAYLoR-I place in nomination Ed. Smith.
Mr.. DAvIs-l second the nomination of Mr.. BrIer-
" for the that he has had experience at the
desk and is therefore better qualified TO take the
place caused BY this vacancy than any new man
would be.
Mr.. CONCERT nominate William NJ Gillespie,
formerly Chief Clerk OF the House in Nevada, and
once in the State OF New York, one of the most
competent and best Chief Clerks Of Legislatures on
this coast
MIR Hull move the election of Assistant Secre-
tary be postponed. The present Secretary has, in
most eases, done most OF the work of Secretary the
Secretary who has resigned having frequently gone
to San Francisco and remained there from Friday
Mnndav | think we have anOuuh clerical force
it Is.
The roll being called, Smith received %, Briefly
l., Ryan l and Gillespie vote
Smith, having received majority of the total
vote, was declared elected.
Mr.. DAVIS introduced the following bill out OF or
der: To amend Section 3S2 of an Act to establish a
Code OF Civil Procedure, approved March II, 1872,
Telatl. g to parties to civil actions Irrigation.
The Committee on Claims reported substitute
for S. 3. 1S6, and recommended its passage.
The Judiciary Committee reported back A. B. ~,
accompanied by the following opinion:
The bill authorizes suit to be maintained against
towns cities, cities and counties in where by
reason OF errors omissions or Irregularities OF any
of the municipal authorities, contractors for work
upon public Streets sidewalks and sewers have lost
their claims, or liens BY the law under which
nearly all these claims accrued, it was provided in
express terms that III no event should the munich
paty be liable therefor, and that proviso was in
corporated in the contract. The law proceeded
upon the theory that the work was of private bene-
fit and should be paid for by the individuals
benefited and not by tie public. The bill in ques-
ton only gives the right to bring suit but in
express terms confers right and cause of action
for such claims. In other words, it creates a
legal demand against the municipality for these
claims where exists, and leaves to the Courts
only the question OF determining the amount, This
is beyond the constitutional power of the Legisla-
ture. 70 quote the language of our Supreme Court,
in the case OF Hoagand VS.. the City OF Sacramento
(52 Cal, 1907 While the Legislature does interfere
to furnish remedy, or remove an impedment which
ta,hta hn ppfO q
right or duty already existing, 1t cannot, even
against municipal corporation, create clain
without the consent OF those who are to be taxed
for its payment. Such procedure while taking on
the form of a statutory enactment, would amount
to mere spoiation." To the same effect is the opn
ion OF Chief Justice Dixon in HasbrOuck the City
OF Milwaukee Q3 Wis, SOY, "ln so doing the Legis
lature would interfere with vested rights OF prop
erty Ii would OF its own mere motion create an
obligation where by law none before existed it would
impose liability against the will and without the
consent Of the party 10 be charged This the Legs
lature cannot do. IL was urged IN argument before
the committee that the contractors having lost their
liens through the carclessness or neglect of city
officials in the performance of their duties in pro-
ceilings claimed to be for the benefit of the corpora
ton the corporation thereby became liable for the
losses incurred through such careessness neglect
But no such rule OF law obtains IN this State. The
ordinary coctrine OF principal and agent does not
apply to municipal corporations and their officers
Incorporated cities and towns, like counties, are
mere governmental nstrumeDtaGties formed under
the laws of the State for purposes OF internal ad
ministraton (Wnbigler VS.. city of Los Angeles, 45
CAL, 36l They not liable for injuries sustained
by private parties through the neglect or nafeas-
ance OF their officers. The remedy, il any, is
against the officers individuals and upon their
official bonds but the public is in no way respons-
bic for the acts. (ioffman vs. San Joaquin county,
q Cal, 426; Crowell vs. Sonoma county 25 Cal.
3I3) In illustration of the foregoing principles
further refer the Sen te to the cases of Brady
King (53 Cal, 4D, and the People vs.. Lynch %
Tol pth thar oh 10 fba
which it is not necessary to specify The committee
are of the opinion that is clearly unconstitutional
and therefore report it back with the recommends
ton that it be indefinitely postponed.
WENDELL, Chairman
The Committee on County and Town Govern
ments recommended that A. B. 4S be referred to the
Committee on City City and County and Town
Governments, as it related solely to municipal cor
poratiOns.
| On motion of Mr. WENDELL the bill was so re-
ferTed.
The following bills were introduced:
BY Mi. JoHNsoN-TO amend Section Coz of the
Penal Code, relating to malicious mischef.d Swamp
Lands.
~ Mr.. ENos-An Act for the relief of John Tim
Minis. Claims
BY Mr. HTTELL-In relation to the proof of incor-
poration of foreign corporations. Judiciary
BY Mr.. BRowS-To authorize the California
Water and Mining Company to construct and
operate railroad, and to supply the inhabitants of
the city and county OF Sacramento and other per-
By Mr.. NEuMANN-To amend Section 1910 of the
Penal Code of the State of California, relative to the
number OF peremptory challenges in criminal cases.
| Judiciary.
The Committee on State Prisons recommended
| The passage of 5. b. 344.
Mr.. GLGscocK moved to recommit S. B 2l7 to the
| Committee on Roads and Highways, and that the
| bill retain its place on the file. Carried.
Bills on the second reading file came up as fol-
| lows
S B 40. to establish uniform system of county
governments (by Mr. WendelD, was taken up.
Pending the consideration OF the above bill the
| Senate took the usual recess.
Afternoon Session.
The Senate reassembed at o'clock p. NJ.
| The Committee Swamp Lands recommended
| the passage of S. B. 34S
On motion of MIR. JOHNSON the vote by which S.
B. 241 had failed to pass was reconsidered, and the
| bill passed by vote of % to II.
| Mr.. DAVIS moved to reconsider the vote whereby
| S. B. IL had passed. Lost.
Mr.. NEUMANN moved to reconsider the vote by
| which S. B had passed Lost.
Mr.. JOHNSON moved that S. B. 225, relative to the
appointment of additional Superior Judge in
| Alameda county, be taken from its place the
| second reading file and considered. Lost.
Consideration of S B. 40, relating to county gov
| ernments was resumed.
| Mr.. SEARS offered an amendment to Section 4O55,
relative to county advertising having the effect OF
shutting out papers with patent insdes The amend.
ment was adopted
Mr.. CARLoCK offered an amendment to the same
section, providing that county advertisements shall
be published in paper which had been published in
the county for at least one year prior TO the con-
| tract. Adopted.
| Mr.. ZUCK amended by providing that no paper
printed wholly or in part by Chinese labor should
be awarded any contract for county printing. Lost
| Mr.. JOHNSON moved that the first, second, third
and fourth bills the second reading file be put al
the head OF the second reading file for Monday next
| Lost.
| Mr. Ioursor ,barauron yoovad Tho. c ID an H.
put at the head Of the second reading file for next
Monday, but subsequently withdrew his motion
The Senate concurred in A. C. X. 20
On motion Of Mr. PARDEE, the Senate adjourned
| at 4:46 P. N.
| ASSEMBLY.
SACRAMENTO, February IL, 1891
| Tha Aaza mo AZ I