Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-06-08

lit requires legislation to carry it into effect Will
n all the powers ard incidents Of Court of Justice
& Fifth-It it also claimed that part of the Four
:, teenth Amendment to the Constitution of the
United States, which prohibits any State passing
u any law to deprive any person Of life liberty OF
property without due process Of law, is prohtory
r OF this proceeding.
Sixth-And as auxiliary TO the last point that an
n Office is property and therefore the defendants can.
not be deprived Of their office without the ordinary
proceedings in Court Of justice that Is involved
D | with power to try and determine other cases.
The first point referred TO is answered by Article
Ill Of our State Constitution which reads as fol-
lows:
"Section l. The powers of the Government of
the State OF California shaM be divided into three
separate dePartments-the Legislative, Executive
and Judicial-and no person charged with the ex-
ercise of powers properly belonging to one Of the
departments shall exercise any function appertain
ing to either Of the others, except in this Consti
tuition expressly directed or permitted"
A judicial function may be as properly exercised
by the executive department legislative depart
ment any other power when it is plainly directed
or permitted by provision OF the Constitution in
plain and unambiguous terms.
II is admitted that this provision is not common
IN the Constitutions Of the different States But
that fact does not deprive it of any of the power
efficiency. The Governor upon entering upon the
duties of office took oath TO support the Constitu-
tion OF the State Of California much the provision
in question any other provision OF the Constitu.
tion. The only question that properly arise in
regard his duty under the first section OF the 10th
article grows out OF a construction Of the clause
claimed by the Attorney General to contain the
power and impose the duty upon the Governor. IL
is insisted by counsel that the provision will have
to lie dormant for the that the Legislature
has fallen 10 proyde machinery to carry it into
cution.
Ii these reasons are correct the power attempted
to be conferred cannot be exercised If they ere
not good there is an obligation and duty enjoined
upon the Governor to discharge tine duties therein
set forth. Ii he should shrink from performance
of them he would justly be chargeable with mis-
conduct in office. There is grave error in the very
foundation work the purview or magnitude Of
| the range and purposes OF the examination. Sim
liar powers in part constantly exercised by the
Executive o! the United States, andin all States Of
| the Union. Removal from office by the Executive
of the United States or OF State is not new. The
change made by our Constitution is only new in
containing limitation upon Executive removals.
The limitation is new; That does not prove either
| that II is not beneficial or reasonable
| We will refer back to the two propositions re-
terred to under this point First the provision IS
not sslf executing. 1t reads as follows;
"The Governor shall have power to remove either
Of the Directors for misconduct, incompetency or
neglect of duty, after an opportunity to be heard
upon written chargesP
II seems that this provision is plau unambiguous
and direct There seems to be no necessity for any
legislative action so far the power herein con-
feired extends. The Legislature has not failed to
enact a law based upon his very provision.
The Act TO define, regulate and govern the State |
Prisons Of California, approved april Is, IsS-, con-
tains section upon this subject Section IA reads
as follows "The Governor shall have the mower |
to remove either of the Directors for misconduct |
incompetency or neglect of duty, upon proper no. |
tice TO him them, accompanied by copies OF writ
ten charges, he or they having opportunity to be
heard thereon"
The magnitude of this whole inquiry does not ex- !
caed tie duty enjoned upon the executive in many
instances without notice opportunity to be heard
1t is an to suppose that the Governor is en-
gagged in the trial OF criminal or even evil
case The duties en1olned are partly executive aud |
partly judicial IN their nature They precisely |
similar the functions conferred by this Con-
sttution upon OF the houses OF the legislature
that is the Senate, in cases OF impeachment. The |
Senate is a legislative body, in this instance with
judicial powers and yet no one complains OF the
exercise If judicial powers by the Senate because
the provision in the different Constitutions has ex
listed since the formation Of the Government itself
We have criticisms upon the exercise of judicial
powers by one branch of the Legis ature Why
should this provision conferTing Judicial function
upon the Executive, when it is only limitation
upon power that he has exercised from time nme. !
mortal, be criticised 1t really contains no new
power but is merely in this instance a limitation
upon the absolute right OF removal. There are
several modes provided by our system for removal
from office. One is by impeachment. Another is
with regard to different set of officers, by proceed
ngs instituted and prosecuted in the Superior Court
third is the power that is proposed to be exercised
in this case, to wit: inquiry Into the grounds upon
which a removal is sought and tru' hful determine
tion whether exists. II it does, the exercise
OF the power is proposed. II it does not, the
else OF the power will be refused
These three modes differ i'll the mode and proceed
ure to be followed Each is expected to result the
same the others upon like determination of the
existence of cause The fourth mode is at the
pleasure Of the appointing power. Reasons are not
required to be given noi stated. AS regards the
first and second modes, they contain elaborate
machinery than the third, but there is no other
difference appreciable. In each OF these three
modes caise must be found TO exist after an inquiry
ana portunity - be heard.
Ii is GAINED that the exercise of the power is !
dangerous for the reason that We have no power to
compel the attendance of witnesses nor to punish
for con empt. There are two answers to that OBJ
lection FIrst-The want Of such power is not the !
fault OF the Executive, but of the Legislature and
second, sufficient unto the day is the evil thereof"
We will not assume that witnesses will refuse TO
come no refuse to testify if they do appear
The second point urged, that the Governor being |
the appointing power, it is incompetent for HIM to
create a vacancy to be filed by himself we think
sufficiently answered in the discussion of the first
point, but il any further answer to the objection is
necessary, it must be directed to the Constitution
itself and not to the person who happens to exer-
else the power of the Chief Executive The Governor
did not make the Constitution has no power to
amend it, and dare not refuse to obey it.
The third point is 1.-The judicial power to try
such cases is lodged 10 the Superior Court of the
county where the offenses are supposed to have
tax place, by the 9th Article of our Constitution
Section s..
There are class of cases provided by statute
triable before that Court That jurisdiction is con-
ferred by Section 772 OF the Penal Code The Lam
guage OF that section is general in its character and
might be construed to include all cases provided b.
the construction to be triable upon articles of i'm
BeNNAiA-N I
charges included in the specifications under con-
sideration But it cannot be supposed that the Leg
slature intended to confer power upon the Superior
Court in cases already provided for in the Constitu-
tion. To attempt it would be to fail. Therefore
the Legislature must have intended to confer power
upon the Superior Court not otherwise provided for
in the Constitution.
The fourth point is " The power claimed by the
Attorney General under Section 1. Article X is de-
fectiye i'll thisit requires legislation to carry it
into effect, with all the powers and incidents of
Court OF i1sticeH
We think that that objection has besn sufficiently
answered. If there is any particular or peculiar
efficiency in the enactment OF law based upon a
constitutional provision it exists in the section
heretofore referred to- to VIII, the fourteenth sec
tion Of the Act of April Is, 1880. deang and regu-
latng the management Of the State Prisons Of Cal
ifornia. That Act adds to the constitutional pro-
vision the necessity OF giving notice. That notice
has been given Of the time when to plead and the
time of the hearing, and also the place where the
hearing to be had.
The fifth point is 1t is also claimed that part
Of the fourteenth amendment OF the Constitution |
Of the United States, which prohibits any State
passing any law to deprive any person Of life lib
ety or property, without due process Of law is pro-
hibtory OF this proceeding.
We have heretofore stated and we repeat, what
ever may be the result OF this investigation, no
person will te deprived Of life liberty property
and we now add with without due process Of |
law. The investigation involves no criminal charge
that the Governor claims TO have jurisdiction, with
power to punish, whatever may be the result. II |
the charges found true, the Constitution en-
Joins upon him the unpess ant duty Of declaring
which may result in the removal Of the parties from
office II, on the con. rary, the charges are found
to be not true will be his duty to say go sad that
will be the end of the investigation II the ehsrges
should be found TO be true, and the defend /
ants or either Of them, should be removed from |
of'ce the power conferred so far as the defend. /
ants are concerned, is exhausted
The SIKH point Is "a and auxiliary to the last
point that 6z7ice 10 property, the defendants
cannot be deprived OF their office without the ordi.
nary proceedings in a Court Of justice that is in
vested with power to try ald determine other |
cases"
II this objection was 10 a statnte based upon no
provision OF the Coasttutioa it would probably be
good The uniformity of sistutes in their operation
upon individuals is fully recognized But when the
Constitution provides for different modes Of Inquiry
into differeus ei1 delinqueacies who has fisbt
to cali it IN question As for an of5iee being prop-
erty in the Sa sense of the terrn we eny It Il is
/ trust An otficizl, VIXEN in Office, possesses
certain rights, and they 20 hand in hand with
duties ana obligations. IL las slWays been within
the power Of the people. through tbesr ageuts or
representatives,. 20 inquire toto the manner in which
their osi4ss have discharged their dtitos in some
mode other. AS 70 the mode the people in their
fundzmenta' law have right to determine whether
il shsi be By proceedings ia the nature Of impeach
ment, by proceedings instituted in a Court inyesed
/ wita power to try and Determine or BY the mole
prescribed in the arst section Of the tenth article o.
Constitution OF by any other mode not incor
sistent with the Constitution Of the United statez
AS regards osce beiHg property Il lacks seyc-aI
OF the mos important Incidents that he