Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-06-07


The same language exists IN our Constitution
as applies to the Prison Directors. They may be
removed 10 such manner as the Legislature may
provide.
cite your Honors to "a Cal, People Va. Pruvines
- The departments, therefore, OF which it spelks,
and in respect to which it provides that 10 person
employed shall be employed IN either OF the
other two, the Departments Of the state Govern
ment, as expressly defined and limited in the Con-
sttution and its meaning is that no member OF
the legislative department, there defined shall at
the same time be member OF tae executive or iu-
dicial departments, there defined, and vice
that is u say, judicial officer shall be Governor
Lieutenant Governor, Secretary OF State, Controller
Treasurer, Attorney-General or Surveyor General,
all of whom, and none others, in the sense of the
third article OF the Constitution, belong
To and constitute the executive de-
partment eff the government; or a
member of the Senate or Assembly, which two
bodies ana none others, in the sense OF the third
article Of the Constitution, onstltute the legsla
tive department. So o; each officer of the
tise departmeut-he cannot belong to the judicial
or legislative department. That is TO say, he can
he no judicial office, Tor the office Of Senator
member Of the Assembly. And so OF Senators and
members OF the Assembly--they can hold no judi
cal or executive offices comprised within the exc
cutive and judicial de aartmeDts as defined in Art
ces and q. In shcrt, tie third article OF the Con-
stitulion means that the powers OF the State Gov
ernment-not the ioesl government thereafter to e
created by the Legislature shall be divided into
three departments; and that the members OF one
department shall have no part in or the manage
meut of the affairs OF either OF the other
departments, except In the cases
hereinafter expressly directed or permitted
In the earlier periods 81 English history, the
King actually presided in Auia Regis the rude
Court OF the times-and, in person, d. clared the
law az well as executed it This possession Of the
power 10 both decltre and execute the law by the
same de aItnent OF she Government, led to frequent
abuses with which the trainers Of the American
Constitution were familiar and against which they
rffsr uufa rarI
ing the Judicial from the executive and legislative
powers 30 far as 1t could be done without stripping
either Of toe latter OF such judicial powers as are
Indispensable TO the proper and efficient working Of
their owa more appropriate functions. Hence the
rule that there should De one department to make
the law one to declare the law and another to exc
cute the law and 10 secure SO far possible all the
advantages OF such rule the further rule that each
| department should be composed OF different per-
sons or-vhich amounts to the game thing-thst
persons vested with the functions OF of the d.
paTtmen,s should not exercise the functions Of
either OF the Others exert IN expressly d.
rected or perm tied in the Constitution itself
In the case Of Neyman We. Southland, the decision
is delivered by Chief Justice Marshall and is very
elaborate on this question of the distribution Of
powers He SAYS: +" The difference betgeen the
departments undoabte ly is the Legislature makes,
the Executive executes and the judiciary CONSTITUTES
| the law"
wish to refer you also to the Debates in Con.
grees IN the case OF Jonathan Robbins, where he
surrendered under the extraditon treaty to the
British Government. The argument made BY Chief
Justice Marshall on that cccasion hss heen consttu-
tonal authority from that day to this H. IL in most
OF the books. Judge story refers TO it in this
I language; 1T separates the Executive from the
Judieai power by liIIs distinct and distinction
so wise that all approve III
There is one branch Of this case that has not been
touched upon directly BY Judge Darsin, and it ia
this: Whether or no the provision in Section 10 ID
sef-sxscutiBg Whether IL operates OF itself iudc
pendent Of any legislative action, whether it re-
Z
the ist part OF the provision, which gives the Gov
ernor power to TeuoFe, may not require any legif-
! atys action, but the balance of it does rsquire
legislation 70 put il in force. In the seth Cal the
I People W. Sacramento county, our Supreme Court
there defRed the difference between asslf-executiye
| provision Of the Constitution and one which re-
| quires legislative enactment.
Ia the forty fifth Texas reports, psge 265 in the
esse OF Austin IS. the Railroad Company the Court
says g In opinion, however, the sounder con-
cius:on IS that where there Is grant Of power 10
4 the Constitution 10 department Of government,
or to q constitutional or statutory officer or tfi.
bupzl, without defining the and form on or
BY which it Is to be exercised and carried into effect
tie Legislature may iectirnateiy prescribe rezsona-
| Die rules by which this may be done. and though
such power nav not be taken away bF the Legisia
ture aud should it fail or refuse TO eglae 50 as to
provide for the efficient use and exercise OF the
power, the department. officer tribunal to ,.hon
i. Is delegated might possibly act IN accordance with
iss can discretion, Yet wnen the legislature has
made reasonable and appropriate prsvisens for its
pr0per exercise, IL should and will be exercised in
conformity eith such provision
ApuIFiRg this doctrine 70 our case, II the Legis-
la.ure hzd feiled to provide the necessary laws to
carry it into effect, then perhaps the Governor
light sxsrsi=e that power But the Legislature
having p.oVife1 the remedy under Section ~ OF
ceurse il takes It away from the executive.
Cooley in lis gsast.t 1tioHal Lifui atoms, lays
down The sslae define, only more ellsorztely.
r fer you % p5ge 40 Also, under the hs1d u
.. Dne prscess q law, paess 40 70 zS5.
Ssansei fo- the people In his argument yesterday
SID shst this vas rev srd uahesrt Of proceed
mr. <i.hort pFeseteIs in tLs bsto CT the Usised
stass. % = 1ay stale BE saiE i S4s goisg -
10 TIE s-oss ID tsuscsP CT he BzFens knd BIC
Jchn gbst Is * ia1. tscx cry eensgssss . azi :