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

| up uuutT law Is administered, ana WHICH nat
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 were
| held unconstitutional.
II is, however, most CT ar that had the " Drainage
| Act been declared constitutional by the Supreme
Court of California before any of the contracts upon
which the equities Of these claimants based had
been entered into il, instesd Of simply having the
Act OF the Legislature and the approval OF tine pub
lie Officers Of the State and the opinions OF ator-
| neys, they had also had decision Of our Supreme
Court specially holding the law constitutional the
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 e7ent of such change, would have &C.
CURED no rights Whatever however lawful and gen.
uine had been their purpose
NOW, 1t is also equally clear that the decision of
tDe supreme Coirt as to the constituioHality Of
law becomes worthless when subsequently, over
ruled, and can not be referred to- or depended Upon
10 any sense to give integrity or Rorce or effect 30
the law which thg latter decision declares null and
VOID, or, as Judge Cooley says az though it had
never BEEN"
The above suggestions are made and authorities
referred to, not because deemed esserial to prop.
er instruction of the shirty-second section of Arti
Gle but to illustrate the fact that valid and law
iul rights may and cons antly do depend upon I'M
constitutional laws, or laws which at any moment
may be declared unconstitutional.
Inc view frst expressed as to the proper construc
lon OF Article w., Section 90 Of the Constitution is
OhO OoiISSO one, 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 the provision to
be made, and dots not invelYe 4 construction that
would render the Government incapable of being
reasonably administered.
EXHIBIT b. "-oPINIoN or ATTORNEY GENERAL
MARSHALL.
SAcRAMESf3, February 0, 1883.
Hon. L. c. Granger, Chairman Committee on
Ctaims-Sir: have examined the bi | No. 207. L
have also carefully considere.s the questions upon
which the committee has asked my opinion. My
opinion is that the legislature las power to legalize
as against the State the unauthorized invalid act
of any officer" (Const, Art. w., Sec. %, sub.
1Sth-l The Board Of Drainage Commissioners
officers, and their acts may be legalizei 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 or Fed
eral. know of no provision OF the organic law in
copfet with the bill in question. Article ". 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 true that the law by the express authority
of which the obligations intended to be met by Eli
No 2oEwere incurred has been decided to be uncon.
stitutional. But the "Act to promote dra' nsge''
was, .uatil pronounced unconstitutional by COM
petent tribunal, the 'express authority Of law" re-
quired by Section 81. 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 I'M
constitutional law has validity and is it bad
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-
siyelV That rights and Oblipa ti0ns do under
laws VIII Oh are in conflict with the organic law.
think the cases to which shall refer support beyond
doubt the construction that express authority OF
law means enactment by the lawfully constituted
Legislature / 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 the citizeu
From the date Of the decision that Law is uncon-
stitulional it becomes nuliy, 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 is under the impenetrable shield Of "express
authority of law its equivalent Legislative
actment. A different doctrine would require not
only executive approval of every law before il be-
came safe rule Of action, but would require n con-
strucNon by the Courts-and q further provision
that the Courts should never their own deci
Son'. tSee "a Texas, p. 1856 rs Florida, p. 454 81
Illinois, p. 4G; Nevada, p. 2i4 3 DEMO. D. as2 ; l
Wallace, p. l75; 49, howard, p. 1872 Wallace,
p. 3d. Wallace, p. 327)
More than one Of the cases referred to is where
the Counts first sustained law and after when the
persons composing the Court changed, reversed
the opinion. Could any Court or lawyer say in such
e case that the law II IL had never been--and
that all citizens live and act and hold their property
in such fatal inseeuritys
have not felt called upon 10 discuss,the policy of
the convention in the adoption Of Section 49,
though ouch discussion wuus very materially
strengthen the opinion have given. | will, how
ever ask attention to the policy and history Of the
debris law"
Net one of the opinions given in the case Of Peo-
pie vs.. Parks questions the power If the Legisla-
tore oyer the subjects treated in the "debris bill
NO doubt i. expressed but that all tine things at
tempted TO be done, could be done, AID 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 maturely 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 dictated by an enlarged
policy, and based upon generous morality, pro-
mulgated by the highest authority in the land, in
dorsed by public opinion, and obeyed with mques.
tioning faith.
II is not law that such an Act, though uneousti
tution9l, is without authority and wholly void from
the beginning, and it would be difficult TO persuade
those whose fortunes sre ruined and lives wrecked,
that il is " as if 1t had never been"
+. c. MARSHALL, Attorney General.