Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-04-01

ture Governor and other specified State officers to
aid District Attorneys the performance OF their
duties, when required to do so by the q veSnor 10
bid in property sold under executions IN favor OF the
State, under certain circumstances and 10 perform
other similar duties By subdivision II OF Section
40 (Poli ica Code) he is also required TO discharge
the duties OF a member of the Board OF Examiners,
Board of Military Auditors, aid other duties pre-
scribed by law"
Now, in speaking Of those duties the Court said :
Some OF these services have not the sligbtest re-
laton, under the most liberal construction, TO
the duties OF an Attorney General as such duties
were generally understood at the adoption OF the
State Constitution, and they doubtless I'M
| derstood by the trainers OF that instrument. Inc
business of counting money in the treasury, exam
ing books of account, requiring the skill OF an expert
accountant rather than the profe ssiona learning OF
| a lawyer, and the investment OF public money IN
bonds Is wholly foreign to the duties of an attorney,
and is no more cognate to them than the manage
| ment of a State prison or lunatic asylum. The
Legislature has no more power to compel the Attor-
ney-Genera to perform such service part Of the
duties OF his Office than it has to compel the Super
intendent of Public Instruction to take charge OF
the State Prison, or to perform the duties oil State
| Gauger. The Attorney-General IS therefore under
no obligation to perform such services, and he may
decline to perform them without any breach of his
official duty as AttorneyGeneral II, however, he
voluntarily performs them, he does not thereby en-
large the scope OF his official duties constitu-
! tional officer By no compact between him and the
Legislature can his official duties AttorneyGe Gen.
eral be extended beyond the limits contemplated by
| the Constitution"
| Consistently with that decision there be but
correct theory and it is clear beyond doubt,
says the Court, in establishing similar offices here,
that the trainers of the Constitution had reference
to some general class of duties which IL was well
known pertained TO such Offices elsewhere Either the
Constitution did did not prescribe the duty OF the
Attorney General; either the Constitution created
| i'm to be kicked about and handled by the LIE isla
ture at Its will else the Constitution made him a
constitutional officer with constitutional powers.
| Either the Co 1stitution made him, and made him
| with powers which he might exercise as an indie
| pendent though subordinate member OF the execu-
tive department Of the State, the Constitution
left him st the will Of the Legislature. The can
be such thing as two positions taken upon this
question there be no limitation implied in the
Constitution upon the powers oil the Legislature in
prescribing the duties OF Attorney General II the
Attorney General becomes but statutory officer,
with the right to exercise but statutory powers.
But 1t is unnecessary for us to stand alone upon
this decision. Another case occurred u which
have no reference but 1t is to b. found in So
| CAL. aid believe that my FRIEND Judge Wallace,
took part in that decision. in which the Court un
| dert ok to define the word prohibition" as used
| in the Constitution II the word, as used in the
Constitution, must be taken in its technical sen e,
then the word as used in the Constitution rece yes
that sense, and is neither subject TO enlargement
nor limitation by legislative power If the word
| prohibition" any other word in the Constitu-
| tion s to receive its constitutional eommon-law
sense the Legislature has power to enlarge upon
it, nor has it the power to limit its meaning. The
| Court In that expressly enunciat, a rule al
law that is old constitutions themselves and
old the constructions Of constitutions. which s
| that where a word h. wing common law technical
Specification, is used ii her in written instrument,
| in law a constitution, that word is to be taken
with its commona law Specification, but its CON-
| mon-law limitations; but it Is never TO
be understood as being word il used In constitu
tion that is subject to legislative changes of mean
| ing. If it were, then the constitution self would
be the subject of changes by the Legislature, and
would not be required to be changed in the manner
| ksahf ha g tft1fTn arFNta MT
Suppose that 1t should become eonvt nlent for the
Legislature OF this State to provide that the Attor-
| ney General should preside as the Judge OF some
Court that ID to be created Suppose taat the Leg
stature should conceive It to be within its power to
provide that the Attorney General as said in this
case, should become the keeper Of the Insane Asy-
| lum Suppose that the Legislature should under
take to provide that he should become the scayeu-
| ger of the city OF San Francisco And then sup
pose the other side the Legislature of this St1te
| should undertake to say, eve are tired OF an At
toruey General. We do not want any Attorney
General. He has brought an action against large
| community as counsel has said the other side
-"and we will virtually abolish his office. We will
| make his office sinecure. We will take from him
| all that there is in that office He have lis
salary, if he WAITS it, but We will take
| from him all power member of
| the Executive Department. We will prov de that
he shall not sit as a member Of the Board Of FIX
aniners, he has sat heretofore. We will provide
that District Attorneys shall have control Of State
in the Supreme Court, AID that the Attorney
| General, under penalty shall not appear. We
will provide that he shall not OCCUPY position in
the State Capitol but that he shall have such office
| as he may procure himself We will provide that
he shall exercise no power whatever" Could there
| be such thing legislative enactment against
| an independent officer Of an independent depart
ment Of the Government, that should undertake not
only to limit but to destroy the powers which he
has under the Constitution which provides for his
| election
II this NAV be done, Judge Wallace is right, and
Love against Baehr is wrong. If this may he done,
Judge Wallace is right, and the decision in the Gaze
| Of The People vs.. Stratton is wrong. But if this
may rot be done, | submit your Honor, that there
are not only common law powers which he may ex-
ercise in the absence Of legislation but l maintain
that there are common law powers which have been
| engrafted in the CONSTITUTE ITSELF which used
| in the words of the Constitution, which become
part Of the Constitution BY the Of terms that
| that time meant as much as daylight means to-day,
as darkness will mean tonight that meant as much
as any Eng ish term which we may understand !;
that msant officer with certain wei understood
wei defined and welregulated powers and duties (;
and that the Legislature may not by amendment to
the law, by curtailing his duties, by defining his
powers to be othrr than those understood by the
people at tha time Of the adoption Of the Constitu
ton, change the nature Vt his office and deprive the
State Of an officer which the Constitution intended
| to create.
Now, submit TO ysur Honor that upon authority
and upon reason, the Attorney General of this State
has all the powers which in this have under
| taken to exercise AS l said to Judge Wallace
to-uayp Was de vic tilue duuTtestu Dy u COIu-
mittee from the Senate Ct this State, who
desired to introduce resolution requiring me
to commence an action Of this nature. But
said to that committee, am not to be controlled
by legislative resolution. II there Is in this
right that is beirg violated, and the people who
are injured will petition me on the subj ct. believe
have bravery enough to do what is right, notwith
standing the absence of such Legislative resolution
But shall exercise my own judgment about this
matter. shall determine whether have the light
and the power to do this thing. II have the
ri ut to do it and the power to do 1t, and it is my
duty to do 1T. shall do it, notwithstanding Your
resolution. If II is not my duty to do it, shall not do
it. notwithstanding your resolution. becaus. claim
| the powers # an independent officer.
Counsel IN this case has given elaborate his
tory A. the only object Of Il is elaborate history
| seems to have been TO establish to your Ronor u
proposition which we are able to concede for the
purpose Of this argument. The proposition upon
which counsel seems to rely, and upon which he
| seems to think that our depends, is the ques
| ton as to whether not the common law rules in
relation to
RIPARIAN RIGHTS
Are in force in this State And in order to convince
your Honor Of dependence upon the rules OF the
common law governing riparian proprietors the
learned counsel has treated us TO elaborate his
tory OF the early settlement Of this State Much Of
it vas very interesting indeed. / hsve doubt
your Honor was as much interested as was. But
was interested only In the sense of acquiring his
torical facts, which 10 my judgment had not the re-
hottest connection with any possible theory upon
which this must be decided. Why they have
gone far in their undertaking to draw distinctions
between the indust;ies OF this State as to PISS full
some euogies upon the gold bearing deposits Of the
| Sierra Nevada mountains l have nothing to say
against the gold srng deposits, have against
the honest miners. feel this time as much s. M
patty the learned counsel himself, who insists
| that his sympathes all our side; and NJ
eulogy that he might pass upon this interest,
no eSaggeratiou OF figures to the amount
OF gold produced and to be produced that lie might
make in argument before your Hono-, could exec ed
| the estimates which have made and the conces.
! $40 which am here to make to-day. | am not
here to undertake to deprecate, in the opinion OF
Honor Of the people Of this state, the value
OF the mining industry, which, as has been well
said, formed of the elements in making up the
| Government under which We live. 1t has paid, as
has been well said, portion of the revenue which
constructed this magnificent building, and paved
with the other interests the way for the consruc-
tion Of State which believe to-day is represented
| In the armament Of national emblem by a star
bright that which represents any other OF the
Federal States. Theirs are eulogies upon their in
dustry. They have expended many days of YOUR
Honor's time in undertaking to enlarge upon this
magnificent industry. And stand here today as
the representative Of the State partakng In Of
| the sentiments that ordinarily actulte counsel en-
ployed In the case l stand hero between these in.
dustries, and God knows that l. more than any
other feel the responsibility that results fiom my
duty according 10 my theory Of the law to under.
take to maintain an action which, as they say
know nct-may result in the depreciation OF an in
dustry which has formed great part In the his
| tory Of this Commonwealth.
| But what has this to do with it Why would
he a ODD