Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-07-30
THEY MUST BE PAID.
Judge McFarland's Decision on the
Drainage Act Claims.

Drainage Act Claims.
Following is the decision of Judge L. b.
Mcfarland, rendered yesterday, in the case
/ of P. A. Miller vs. Controller Dunn. The
plaintiff petitioned for writ of mandate
to COMPEL the Controller 10 issue a war
rant upon the State treasury III his favor in
accordance with the Appropriation Act OF
the last Legislature. The decision IS as
| follows:
This is petition for writ of mandate to COM
pei the respondents to issue warrants ior certain
claims of petitioner against the state III accord
ance with an Act of the Legislature passed
| March 10, 1885, entitled AN Act to promote
drainage" approved April %, 1885,
The second section of the Act provides as fol-
lows: The State Controller is hereby author.
lied and required TO draw his warrants Tor all
| claims against Drainage District no. l that nave
been heretofore audited and allowed IL Is
clear and not disputed that petitioner claims
are among those referred to by the ACT Sec
ton makes specific appropriation OF money
to pay these claims. Undoubtedly, therefore,
the language of the Act specially enJolns upon
respondent the duty of drawing the warrants.
But the respondent says that the Act IS uncon-
stitutional and that. for this reason, he dlsre-
CARDS 1t.
The Act is claimed to be in violation of Sec
ton SO of Article V. of the Constitution, which
is as follows The Legislature shall nave no
power to pay, or TO authorize the
payment, OF any claim hereafter against
the State, or any county or municipality of the
State, under any agreement or contract made
without express authority OF law ana all Slch
unauthorized agreements or conlrac's snail be
null and void"
And the facts upon which the alleged uncon
stltutiouality is based are these After petit
toner had made a contract under SAID : ACT TO
Promote Drainage" of April %, $3.50, ana alter
he had expended the money, furnished the ma
terial and done the work which constitute his
present claims, the said Act to Promote Drain
age" was declared by the Supreme Court to be
unconstitutional. And now, upon the theory
that statute subsequently declared unconstitu-
tional never was - law in any sense, ii is con-
tended that petitioners claims arose upon
contract made without express authority of
law" and that therefore the Legislature could
not provide for their payment.
1t is 81 settled rule that an Act OF the Leg1Sla-
ture should not be declared void by the judi
ciary unless its violation of the Constitution be
abrupt AMI readily perceived. II long and
learned opinion, full of acute logic is deemed
necessary to the demonstration of the uncon-
stitutionaity OF a statute, the demonstrate
may, generally, be assumed to be faulty without
reading the opinion. State Constitutions, under
our system are intended to establish broad land
marks, and palpable boundaries of pOwer-nOt
imaginary lines projected in mental contempla-
ton Again. as Constitutions are made directly
by the people, their language must be interpreted
according cits popular sense-thatis, in the way
in which the people most probably understood
it, Now, in what way did the people probably
understand the word Law in the clause OF
the Constitution above quoted? Words may be
used with exact limitations in naming physical
objects or stating mathematical quantities but
in most matters about which people think, and
speak. and write, absolute precision of Ian
guage is unattainable In such eases the mean
ing intended to be given to a word must be de
termined in the light of the surrounding cir
cumStancCS. Law is a word of as wide sig
MITIGATION as any in the language. The defn-
ition given of it by Blackstone-the greatest of
law writers-has not stood the test of hostile
criticism. Now, would not the popular under
standing of the word law, as used in the pro
vision of the Constitution in question, include
statute solemnly, and i'll due form, passed by
the Legislature. and signed by the Governor
And yet it was precisely under such statute
that the claims of petitioner arose. 1t is true
that afterwards, when the State had dealt with
petitioner under this statute and had received
his money and work, it was declared uncOnsti
tutiOnal; and it is true that subsequently it
might have been said, in certain logical sense,
that the statute never had been law: but |
think It was law at the time petitioner did his
work within the meaning of the people, when
they used the phrase without express author
ity of law.
1t must be remembered, also. that the subject
of the " Act % promote drainage" was not out |
side the general scope of legislative power. II |
was not such fragrant abuse of authority as to |
awaken the suspicious of plain people who |
acted under ii in good faith. The Legislature |
could have passed an Act upon the main subject |
to which no one would have raised constitu- |
uOnQl objections The Act was declared unCOn- |
stitutOnal because: First, its title was detective
and second, because it gave some powers to the |
Commissioners which were held to be legisla- |
tive. When its cOnstitutionality was finally |
brought into litigation lawyers and Judges diff
fered about it. Under these circumstances to |
give the Constitution such construction as is |
asked by respondent, would be to prevent the |
Legislature from performing an honorable duty |
from doing what an individual under similar |
ought TO do-and to enable the |
State to commit sovereign fraud. ! do not be- |
lIeye that such result was intended by the pco-
pie, or follows the language Of the Constitution.
Let the writ issue.