Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-03-09

! tive power. From the limitations, directions
and permissions we have mentioned, and
others enumerated in the Constitution, the in
ference is irresistible that the Constitution is
| limitation only upon the powers of the Legisla.
ture, but is a grant of power TO the other
branches OF the State Government, aud as there
is no express limitation TO be found 10 the Con-
stitufion upon the power OF the Legislature to
create offices and I'LL them, where they have
not been created by the Constitution. and the
mode OF filling them provided therein, ii re-
suits that such power is vested in the Legisia-
ture as legislative power, and such was the
conclusion to which the Court arrived III
the case of The People ex rel. Aylett VS. Lang
don Is Cal, 10y. In that case the relator had
been elected by the Legislature to the Office
of Resident Physician OF the Insane
Asylum The defendant had been appointed BY
the Governor. The question was as 10 the valid
ity of the election By the Legislature. The
Court decided that the election of the relator
by the Legislature was valid. And Chief Justice
Murray in delivering the opinion of the Court
said: 1.-The appellant contends that under the
third article and sixth section of the eleventh
article OF the Constitution. the Legislature have
no power 10 elect an incumbent to an Office.
The third article provides for the distribution of
the powers of government between the execu-
tive, legislative and judicial branches OF the
Government, ana forpids those charged with
duties belonging TO one, from exercising func-
tons appertaining to another department
Under this provision it is urged that the Legis-
lature may create the Office but cannot eject
the officer; that it would be exercising power
belonging to the Executive branch of the Gov
eminent or 10 the people. Unhappily for the
argument there is no fourth branch of the
Government recognized by the third article of
the Constitution which is represented by the
people. aud il there is any encroachment upon
any other department it must be upon the ex-
ecutive." Then after giving some reasons
showing that the exercise of the power by the
Legislature to appoint or elect to an Office was
not an encroachment upon the functions of
the.executive, he continued and said But
it is said that this power is taken away by the
sixth section of the eleventh article, which
provides that all officers whose election or ap-
pointment is not provided for by this Constitu
ton, and all officers whose offices may here
after be created by law, shall be elected by the
people or appointed, as the Legislature may d.
rect" Much stress is laid upon the word ap-
poinfed as useo in this section. This is mere
hypercrllfcism. The former decisions of this
Court have substantially settled this point. The
word appoint was probably used as more COM
prehensiye term TO convey the idea of mode
of constituting or designating an officer
whether by election or otherwise. In fact the
words .elect and appoint seem to have been
regarded as synonymous by the Constitution.
The third section of the sixth article requires
the tlrst Legislature to elect Supreme Judges,
and the fifth section of the same article provides
that the District Judges shall be appointed by
the joint vote of both houses. 1t would be USE
less to pursue this argument further. This
power has been always exercised by the Legs
lature and never denied. 1t is not prohibited
bv the Constitution, and according to the theory
aud spirit OF our institutions, is safer when ex-
people than when lodged in the hands of the
Executive" This is a direct authority in favor
of the proposition that the appointing power or
the power of election is vested in the Legisla-
ture. In the People VS.. Mizener, Cal, 525
the Court said: 1.-The evident intent and
spirit of the Constitution of the State was to
limit the patronage. of the Executive within
very narrow bounds" And so in the People VS.
Pilton go Cal, 62l), the Court said "Our pred
ecessors have uniformly held that it was the
manifest design of the Constitution to restrict
rnxn ,faftx. rs flz4
narrowest limits. This principle has often been
repeated And so in the People VS.. Whitman
90 CAL. 46), the Court said: at is only in cases
where there is no incumbent OF the particular
Office to hold over, that the system will allow
the appointment OF the executive to fill the
office. Our Constitution, whether wisely or un-
wisely 1t is not our province to determine,
has studiouslg restricted the patronage of the
Governor" The general power to elect or to
appoint to Office must reside somewhere in the
stale Cox ernment; and if in the Executive only
general power reside, if not in the Leg
islature? In Ross VS.. Whitman Is Cal.
S69: the appointing power of the
Legislature was sustained, as the Court
lature is supreme, except it is expressly re-
stricted." In the case of the People vs. Pro-
vines GA CAL, SD, Chief Justice Sawyer, in his
concurring opinion, said 1.-THE Legislature has
authority, under the Constitution, 10 create
many Offices and to provide the mode of filling
them. Some are filled by the Legislature itself ;
some are authorized by the Act creating them
" be filed by the Governor; some by an
election by the people; and some by appoint
ment by other officers. The Legislature, if so
disposed, might provide that offices created by
ceriain citizens named. having no official re-
lation 10 either department of The Government
The matter is left entirely to the discretion
of the legislature
From the Constitution ITSELF and the author
tiles constituting it, the general rule is deduced
that the Legislature makes. the executive ex-
ecu'es, and the judiciary CONSTITUTES the laws,
and that The original sovereign power in the
State is vested in the Legislature. The general
nature of the powers of each branch of the
State government is discussed and defined with
more or less accuracy ia the following addi-
tional authorities: In re Bulger, as Cal 553;
People vs. Squires, IA CAL l.: McCauley VS..
Brooss, l6 Cal. IL; People VS.. Parker, 81 Cal $780,
People VS.; Seymour, 16 Cal. 332: Cooley's Con-
stitutional Limitations, pages 10i-l07; State VS..
Dangiess, Am. Rep. ST: sturgis VS.. Spotfard,
45 n. Y. 446; Mayor. etc, of Baltimore VS.. state,
"a Am. Dec. 572; Davis VS. State, 81 Ara. Lee.
81 state VS.. Jones. Oregon 5SS; People vs.
Draper, Is n. Y. 5i3; Weeks VS.. Gamble. IL Fla.
Is; Nougues VS.. Douglass, Cal. 65. In Nougues
VS.. Douglass the Court said: 'ihe legislative
power is the creative element in the government
and was exercised partly by the people in the
formation of the Constitution. II is primary and
original, antecedent and fundamental, and must
be exercised before the other department can
have anything to do. Its exercise is condition
precedent, ANA the exercise of the executive and
judicial functions are conditions subsequent.
The legislative power makes the laws, and then,
after they are 80 made, the judiciary expounds
and the Executive executes them" The Great
ing OF right in one persoD, to the exclusion of
all others, TO hold an Office, to discharge the
duties aud receive The emoluments incident
thereto, is as much the exercise of the creative
or legislative power of the Government as ere
ating the office itself; and the effect of an cleo
ton or appointment is TO create the right to the
Office with right to the salary or efnulnments
| incident thereto and in the exercise OF
| this power it has been the practice OF
the Legislature, as we have seen, to create
Offices and elect the incumbent, and in
many cases they named the incumbent in the
| Act creating the Office, as was done in the case
| of the People VS.. Parker, 81 Cal, 639 where the
| power to do so is expressly affirmed by the
Court. The result of the authorities is that
| Section z292 of the Political Code is constitu-
tional and the election of the defendant is valid
| By filing his answer the defendant waived his
| demurrer to the complaint; but the question in
| the case arises on the demurrer to tie answer
which is overruled.