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

i ssit-executirg when it merely indicates pri
cIples without laying down rules by whiC
E those principles may be given the force
; law. Thus, Constitution may very clear
reqdire county and town government but
It fails to indicate its range. and to provic
proper machinery, it is not in this pArticuli
self.executing. and legislation is essentia
, Rights IN such case may lie dormant unit
statutes shall provide for them, though in 6
lar ss any distinct provision is made whic
. By Itset Is capable OF enforcement, it IL Law
and all supplementary legislation must be i
harmony with it.
The decision read by the learned counsel O
the other side is certainly correct expositso
Of the law, in so far as the Judge kept hin
self within the point then under discussion
But when the Judge undertook to say that
provision of the Constitution, which il
itself did not contain the machinery to en-
force it. might be put into operation BY rule
adopted by tie tribunal upon which it at
tempted to confer power, he asserted a p-in
olple which finds no support anywhere
When it is required or desired that the ma
chinery shall be provided for the enforcement
OF provision in the Constitution, it is no:
within the power of the Judicial and execu
tive and administrative officers to legislate
in order to enforce ths right which the Con
| stitu,ion has intended shall be enforced auC
guaranteed. And this will be found clearly
laid down by the Supreme Court OF the
United States, in the 96sh volume, where
that Court uudsrtakes the construction
ot the fifteenth amendment to the Con.
! stitutSDr Of the United States. Tnsre the
| Court says that the fifteenth amendment
is not ssf-executing provision, and may
| lie dormant until the legislative power has
| been induced to act for the purpose of put.
ting it in force.
Cooley further says in that part of his
work, speaking of this subject ''Bus al
though none of the provisions of Constitu-
tion are to be looked upon as immaterial or
merely advisory, there are some which, from
the Lsture Of the case, are as Incapable of
compulsory enforcement as are directory pro.
visions in general The reason is that, while
the purpose may be to establish rights or to
impose duties. they do not in and of them
selves constitute a sufficient rule by means of
which such right may be projected or such
duty enforced. In such cases, before the con-
stitutional provision can be made effectual.
supplemental legislation must be had; and
the provision may be in its nature mandatory
to the Legislature to enact the needful legis-
lation, though back of it there lies no su.
thority TO enforce the command"
Now, as demonstrated that this provision
of our Constitution was not understood BY
the coustitL tion-rnskers to be seif-executing.
bat to require legislation to enforce it, in
in the same article, following this provision,
they adopt Section 5, which says that the
Legislature shall pass such laws as may be
necessary TO carry into etfscs the provisions
OF this article.
Now. I ask your Honors. for one moment
laying aside the fact that the legislative
power is exclusively given to the Lsgisla.
ture, does not this very provision of the
Constitution confer upon the Legislature,
and not upon this tribunal the pozer to
enact the necessary legislation 10 put il into
force? The Constitution first creates power,
with no machinery for its exercise; it hardly
indicstes where that power snail rest. l.
provides for the issuance Of no sub.
penss. 1t gives this Court no power
TO punish for contempt or to produce wit.
nesses before it. 1t gives this Court none of
the powers that from time inmemorial have
been exercised by tribunals having judicial
powers. It then provides that if there be
any legislation necessary to put this provision
into force, the Legislature shall pass it.
There was no intent on the part of the fran.
era of the Constitution that this matter
should be left in doubt, but this power was
given the Legislature to make it plain. Now,
your Honors, upon either of these three
points this attempted investigation must fall
to the ground. "a making this objection to
L
to assure this Court or this tribunal Il don't
know that 1 should call it Court)-but I
must reassure this tribunal and ell who may
be concerned in tbs welfare Of the officers
whose rights are to bs tri=d here, that we are
nos making it upon any technical ground
Why, to sdmit the right to exercise the
powers which are attempted iu this case,
as applied to the general rights of
individuals in this Government, would result
in re eiution by the people; it would result
in 6 despotism and when it would be sought
either by the Judiciary or by the executive
departments Of this Government to exercise
eli the powers which the people, in order to
secure the protection and preservation of
property rights and the rights OF personal
liberty, have given to the several depart
msnts; when it was found that, under the
Constitution, even voted FIR by the people
and sometimes The people vote waeilzAhey
doa't know what they are voting f5r on
instruments of this kind; when it was found
that in the exartise Of the power asserted in
the Constitution than an individual eSarci4-
ing the powers of one of the departments,
sought to exercise the powers OF another, it
would produce revolution; the people would
not stand it at all. We stand here to
day, not for the purpose Of making technical
objections, but we ask for the law OF the
land. We came here askirg that tie
shield of the Constitution shall be placed
around us. so that we may stand bshiud it ss
a protector OF our rights, as it is the protector
of the rights cf all individuals. We ask that
we may be tried according to the course of
the law of the land; that we shall not be
subjected TO trial; that we shall not be the
means of making a precedent which in my
Judgment is dangerous to the Government.
These are the obi jsctions and tbe reasons
that we urge Wemake the o. jsctions in all
seriousness, and we trust when it comes to a
final determination of the case that your
Horrors will agree with us and dismiss tais
proceeding, and allow it to go whsre it be-
longs.
THE DECISION OF THE GOVERNOR
Ga the plea to the jurisdiction and on the
demurrer wss read from the bench yesterday
by Judge Wallace. He reviewed at some
length the points made by counsel for the
Directors, aad denied the plea to the juris-
dicsiop, and overruled tha demurrer.
Embraced in tae decision was some very
sevsre criticisms on some remarks made by
Mr.. Hart during his argument before the
Commission. Before adjournment yesterday
Mr.. Hart addressed the Commission in regard
to the criticism, stating that wrong con-
struction had been placed on some of his re.
marks, and the Objectionable matter was
ordered stricken from the decision. The de-
cision as modified is given in full.
The People of the State of California vs. A. H.
Chapman, j. H. Neff, William F. McNutt and Geo.
W. Schel, State Prison Directors.
The Attorney General Of the State OF California
filed with the Governor May To- 1883, a charge
against said Directors OF neglect Of duty and mis-.
conduct, making twenty specifications under the
charge each distinctly specifying acts OF omission
or commission in the opinion Of the Attorney Gen
eral. of grave and serious nature.
This proceeding was commenced under the first
section Of the tenth a-ice Of the Constitution OF
tie State Of California, which reads as follows
- Section /. There shall be a Board OF Prison Di-
recsors, to consist OF five persons TO bs appointed
by the Governor with the advice and consent of the
Senate, who shall hold office for ten year, except
that the first appointed shall, in such as the
Legislature may direct, be cassifed that the ten
ure Of one person so appointed shall expire at the
esd OF each tgo years during the first ten years. and
vsesEeies occurring shall be filed in like manner
Tne appcintee to vacancy occurring before the
pr4tl0u Of term shall hold Cfiice ony for the IN
expired term Of his predecessor. The Govern or
shall hsye power to remove either Of the Directors
for misconduct, incompeteney neglect OF duty,
after an Opportunity T. be heard up9a written
charges.
Tie Governor caused TO be served copy Of said
charges and specifications upon the defendants,
with notice to answer said charge and specidca-
ti0ns on or before the 2lst of MAY, Iss3 and the
hearing was set for the 4th Of June, lSs3. Within
the time defendants, by their counsel. fled plea
70 the jurisdiction Of the Governor to hear and de-
termine the questions involved in said charge and
Specifications; also fled a demurrer raising an
issue OF law upon the authority Of the Governor TO
entertain consideration 0. the subject
They also al the same time filed Al elaborate ar
swer intended to put issue the allegations OF said
charge and specifications
Argument has taken place on behalf Of the de-
PENDANTS and the Acknowledgement involving the
Legality and prOprie.y OF the Ehole proceeding.