Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-12-02
OUR FUNDED DEBT.
Decision of the supreme Court Relative

Below we give in full the decision oil I'M
Supreme Court, rendered November 2oth
in the case of the Board of Commissioner
of the Funded Debt Sinking Fund VS.. thu
Board of Trustees of the City OF sacra
mento, appellants
This is an application of the Board o
Commissioners of the Funded Dept olnK
ing Fund to compel the Board OF trustees
of Sacramento CITY, BY mandate, to levy
certain tax which is ordered to be LEVIED oy
an Act of the Legislature passed In loiZ.
The Court below issued an ALTERNATIVE
writ. and the City Trustees made a response
not denying any fact set up III the petitior
and affidavit, but setting up matters Oh Ia"
only as response to the alternative writ
The Court oyerruled the legal oolecuon'
raised and made the writ absolute. from
this the Trustees appealed.
Appellants contend the petition is fatally
defective, in that it does not appear there
from that petitioners have not PLAIN
speedy and adequate remedy at law ano
in that it does not appear therefrom tha'
defendants have municipal functions &c
perform.
The facts alleged in the petition sho"
that there is no other plain, speedy OF aoe-
quate remedy. The powers and duues o.
the defendants are declared and determined
by a public statute, of which we take
notice.
Appellants further content that petition
ers have no legal capacity to maintain THIS
action. The petitioners are parties pene-
ficially interested within the meaning oil
Section 1OS6 of the Code of Civil Pro
cedure. County of Contra Costa VS.. The
Board of Supervisors, 26 Cal, 641.)
The main contention of appellant IS that
the Act of March 25, 1872 stats. 1S7l-72,
p. 546), was repealed on the adoption OF
the Constitution of 1879. by reason OF the
clause in Section L, Article XXII. of that
instrument, which reads The provisions
of all laws inconsistent with this Consti-
tuition shall cease upon the adoption
thereof" 1t is said that the provisions of
the Act of 1872 are inconsistent" with
Section Is, Article XI. of the Constitution.
That section reads:
| 1.-The Legislature shalt not delegate 10
any special commission, private corpora
ton, company, association or individual.
any power to make, control, appropriate,
| supervise, or in any way interfere with any
| county, city, town or municipal improve
ment, money, property or effects, whether
held in trust or otherwise, or to levy taxes
or assessments, or to perform any munich
! pal functions whatever"
That the prohibition is prospective, and
applies to the Legislature created by the
Constitution, in which the prohibition is
found, seems too clear for argument. The
prohibition became operative with the rest
of the Constitution, and could only limit
the power of the Legislature provided for
| in the Constitution. Its language does not
purport anything more or different.
This much being conceded, it necessarily
| follows that the Act of 1872 is not incon-
sistent with the section of the Constitution
above quoted. 1t is not pretended that it is
inconsistent with any other provision of
| the Constitution.
The prohibition of future enactments, of
particular character, by houses of legisla-
| ton brought into existence by the same
Constitution which contains the prohibit
ton, cannot be held to annul past legisla-
ton without violating the plain meaning
of the language. 1t may be that some pro-
visions of the Constitution prohibit future
action, authorized in the past by statute in
| force prior to the adoption of the Constitu-
| ton. In such cases the prohibition-it
might be argued--is pointed at such future
action, and is not a repeal of the statute
which originally authorized it. Thus No
county seat shall be removed unless two
thirds of the qualified electors shall vote in
favor of such removal" Section 2, Article
XII This may not only prohibit any legis-
lation attempting to authorize removal,
without the two thirds vote, but may pro-
hibit also the removal itself. Other exam
pies might perhaps be put to illustrate the
distinction. But in each case the meaning
| of the prohibitory clause must be ascer-
tanned by reference to its subject-matter
and to the other provisions of the Constitu-
ton. There is no clause of the Constitution
which can be construed to prohibit pro-
ceedings, under the prior law, by the Board
of Commissioners established by the Act OF
1872, or by other like Boards
In their original points counsel for ap-
pellant say: 1T is contended by respond
ents that Sections u and Is of Article XI.
are not retrospective. Standing alone,
this lu0uld be true, and there are numerous
authorities sustaining that construction,
but the plain intent to make them retro
active is disclosed by Section 1, Article
| XXII, Constitution of California" In
| their brief in reply, however, counsel seem
to contend that Section Is, Article HI, OF
itself and Independent of Section 1, Article
XIII. of the Constitution, repealed the
Act of 1872. For the reasons above set
forth this view cannot be upheld.
Our conclusion is that the Act of 1872 is
not inconsistent with the Constitution, and
| that it will remain in full force until al
tered or repealed by the Legislature
(Const, Art. XX1I., Sec. H.
Judgment affirmed. McKINsTRY, ].
We concur: THORNTON. j.; MYRIcK, j..
SHARPsTEIN, j.
Further Concerning JAS. Rogers Smith, Jr
A. G. Thomas called at the police Office
yesterday and identified the coat and hal
found on the barge Yolo Monday morning
as being articles belonging to and generally
worn by James Rogers Smith, whose name
it will be recollected was appended TO g
note pinned to the hat, and which stated
that he intended to Jump into the river
Mr.. Thomas stated that Smith had lived in
the city for about two years, and roomed
with him for about year and half. In
fact, he (Thomas) virtually supported him
as Smith-a painter by trade-was not dill
igent in search of employment was moi
anxious to work. On the morning of the
dav that the latter disappeared Thomas
found a note of few lines left by him
saying: % am going to the other side; am
only sorry that l cannot repay you for YOU
kindness" The words " am better off
had been written and then partially oblit
Grated, and at the bottom of the fragment
of paper upon which the note was writer
was Il am q years old to-day" The nett
was dated November 29th, while that at
tached to the hat was dated November
18th. Mr. Thomas thinks they were writ
ten at the same time, however. He recol
lects that while lying in bed, about hal
asleep, he noticed Smith writing, about
o'clock in the morning, and also observed
him take some tobacco and roll cigarette
When he got up, some hours later, Smith
was gone, and ne found that the latter hao
taken about 10 cents from his Thomas
purse, which also contained $50 in gold. II
was subsequently noticed that quantity o.
yen shee," or burned opium, which hac
been in the room for several months, had
been taken, and it may be that Smith re
ferred to it in his note found on the hat
where he speaks of " the poison not act
ing satisfactorily. Mr.. Thomas is satisfied
that he did not take any other ha
and coat with him. and therefore does no
believe he left those articles on the bargl
and then went away, leaving it to be in
ferred that he was dead. He did not drinl
to excess, and so far as is known had no
done anything for which he should desiri
TO absent himself On the other side ther,
was no reason why he should commit sui