Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-02-14

up uIuer a law Is administered, ana Whlcn ma
previously even been held constitutional by the Su
preme Court, at first but after changes in the person
mel OF the members OF the Court, afterwards Yer
held unconstitutional
IL is, however, most cl ar that had the Drainag,
Act been declared constitutional by the Supren'
Court OF California before any Of the contracts upor
which the equities Of these claimants are based haC
been entered into if, inftead Of simply having the
Act OF the Legislature and the approval of the pub
lie officers of the State and the opinions of attor
neys, they had also had \ decision Of our Supreme
Court specially holding the law constitutional the e
would scarcely be found lawyer bold enough to as.
| sert that they would then have entered upon the
contracts and performed them at the peril of the
supreme Court subsequently changing its opinion,
and, IN the e7eat of such change, would have ac.
qured no rights Whatever, however lawful and gen.
| uine had been their purpose.
| NOW, 1t s also equally clear that the decision Of
the supreme Coirt TO the constitutiouaity Of s
law becomes worthless when subsequently over
ruled, and can not be referred to- or depended rpou
IN any sense to give integrity or 9orce or effect 30
the law which tbs latter decision declares null and
VOID, or, as Judge Cooley says, cas- though it had
never been."
The above suggestions are made and authorities
referred to, not because deemed esser.iaI to proa
er instruction of TIE shirty section of Art
Gle w, but to illustrate the fact that valid and law
ful rights may and cons antly do depend upon un-
constitutional laws, or lRws which at any moment
may be declared unconstitutional.
The view first expressed as TO the proper consruc.
ton OF Article W., Section 81 OF the Constitution is
CofIeCI Oue VIZ Express AUTHORITY OF law ~
means and can only mean In the connection used,
authority OF the Legislature, or previous legis-
lative authority.
This view is consistent with the history OF the
character OF legislation tia hacaused the provision
be made, and DOES not inveve a construction that
would render the Government incapable of being
reasonably administered.
EXHIBIT 'B. B.'-oPINIoE OF ATTORNEY GENERAL
MARSHALL.
SAcRAMESFe, February o, 1888.
Hon. L. c. Granger, Chairman Committee on
Caims-Sif: have examined the bi / No. 207. L
have also carefully consideres the questions upon
which the committee has asked my opinion My
opinion is that the Legislature has power to legalize
as against the State the unauthorized invalid act
o5 any officer" (Const, Art. w., Sec. %, sub.
18th The Board ef Drainage Commissioners
are officers and their acts may be legalized and IN
my opinion the bill No. 207 does legalize their acts
The Legislature has all the powers of sovereignty
except as limited by the organic law, State Fed
erai. know Of no provision OF the organic law in
conflict with the bill in question Article w., Sec.
tion %, Constitution OF California prohibits the
Legislature, among other things, from authorizing
the payment of any claim against the State under
any CONTRACT made without express authority OF law.
MY OPINION
is that Section 80 is net in conflict with Bill No.
207 tits true that the law by the express authority
of which the obligations intended to be met by Bill
No. 20Ewere incurred has been decided to be uncon.
stitutional. But the "Act to promote drainage
was, .ultil pronounced unconstitutional by a COM
petent tribunal the express authority Of law" re.
quired by Section 50. The only question which |
shall consider is: Has unconstitutional law any
effect or legal consequence? 1t has been in some
elementary works stated very broadly that an un-
constitutional law has validity and is il it had
never been. think by the light of many carefully
reasoned cases that this is not law. / think that
list Of eases, which shall refer to, prove conclu-
evalv That riuyhfl and ohliUstiono orica nd
laws wA eh are in conflict with the organic law. |
think the to viii ch shall refer support beyond
doubt the construction that express authority of
law means enactment by the lawfully constituted
Legislature. i believe no civilized society could
exist under the construction that no rights are
vested and no obligation incurred when the highest
power in the State issues its mandate to the citzeu
From the date Of the decision that Law is uncon-
sttu,icna it becomes nulity, but up to that time
it claims obedience and affords protection.
CITIZENS DO NOT AND CANNOT JUDGE-THEY
OBEY
And while they resist law at their proper peril they
obey il under the impenetrable shield Of "express
authority OF law or its equivalent Legislative en-
actment. different doctrine would require not
only executive approval of every law before it be-
came safe rule OF action, but would require con-
structian by the Courts-and further provision
that the Courts should never their deci-
sions. (See "a Texas, p. 1856 rs Florida p. 454 81
Illinois, p. 4G; Nevada, p. "a 3 DEMO. p $50 ;
Wallace, p. 175; l6 Boward, p. 432 Wallace,
p. 3Ss; Wallace, p. 327)
More than OF the cases referred to is where
the Counts first sustained law and siter when the
persons composing the Court were changed reversed
the opinion. Could any Court or lawyer say in such
q case that the law if it had never been-and
that all citizens live and act and hold their property
in such fatal insecuritys
have not felt called upon TO discuss,the policy of
the convention in the adoption Of Section 50,
though. ouch discussion very materially
strengthen the opinion ! have nlyen. / will. lOR-
ever, ask attention to the policy and history Of the
"debris law"
No5 one OF the opinions given in the case of Peo-
pie vs.. Parks questions the power Of the Legisla-
tore oyer the subjects treated in the debris bill"
NO doubt /. expressed but that all the things at
tempted 10 be done, could be done, ard were within
tie power OF the Legislature; but the methods
adopted were in violation OF the constitutional pro-
visions; the objections were purely and narrowly
technical. The bill itself was as maturey consid-
cred and deliberately enacted perhaps, as any law
ever passed in the State. In the discharge of
THE HIGHEST DUTY OF STATESMEN,
The early and just reconciliation of important but
conflicting interests it was dictated by an enlarged
policy, and based upon generous morality, pro-
mugated by the highest authority in the land, in
dorsed by public opinion, and obeyed with unques-
tioning faith
II is rot law that such an Act, though unconsti
tutonal, is without authority and wholly void from
the beginning and it would be difficult TO persuade
those whose fortunes ruined and lives wrecked,
that 1t is " as If it had never been."
E. c. MARSHALL, Attorney General.