Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-03-09
AGAINST THE GOVERNOR.
JUICE ARMSTRONG d. ID4s Ale
STATE LIBRARY CASE.
The Legislature Has the Power to
Appoint the Trustees-An
Exhaustive Decision.

IA thC Nit1 Hoo p4SSrht
IL the Superior Court of the county of Sacra
mento, state of California George A. Johnson
Attorney General, Plaintiff. VS.. A. C. Freeman
Defendant.
This is a proceeding in the nature of qut
tUd7rant0 instituted upon the request of the GOV
ernor to try the title to the office of Trustee o.
the State Library. The defendant wss elected
by the Legislature January 29, 1855, under Sec
ton 1922 OF the Political Code, which provides
that /" the State Library is under the control OF
Board of Trustees. consisting of five members
elected by the Legislature in joint convention
assembled and holding their office for the term
of four years" He received his commission
and qualified as required by the Code. His
right the Office is challenged in this proceed
ing on the ground that this section is unconsti.
tutional. and TO sustain the proposition the
plaintiff invokes Article III. of the Constitution
The Article is as follows: The powers of the
Government of the State OF California shall be
divided into three separate departments : the
legislative executive and judicial and no
person charged with the exercise of powers
properly belonging to one of these departments
shall exercise the functions appertaining 10
either of the others, except as in this Con
stitution expressly directed or permitted ~
The question arises what is Legislative
power within the meaning of this provision OF
the Constitution? Is the appointing or electing
person to an office legislative function
Smith, in his learned treatise on statutory and
constitutional law, Section 1S4, says. that
under our improved system of government the
legislative power is limited by constitutional re-
StrlCtlOnS Dull lndt IN all Otner respects IL must
be considered as the sovereign and absolute
power of the State, which can only be controlle ]
by an impossibility.' To the same effect is
Kents Com. 44S. Then, the legislative power
being the sovereign power in the State it is an
original, not delegated power Such, then, is
the nature of the legislative power, and as il
exists in our form OF government considered in
relation 10 the executive and judicial depart
ments. the Constitution is a limitation upon the
power of the Legislature, but a grant Of power
TO the executive and judicial departments.
This must be so upon principle, and results
from the nature of these powers themselves
This conclusion is not without authority to sup
port it. In The People ex rel. Finlay VS.. Jewett,
6 Cal, 29l. in considering the nature of these
powers, the Court, by Murray Chief Justice,
said: In considering this question it is to be
borne in mind that the Constitution of this
State is a limitation upon the powers
of the Legislature. and grant OF
power TO the other branches OF
the Government. ard that neither the judic iary
nor the executive can exercise any other than
those delegated or which by express implication
are necessary TO carry. into effect the granted
powers" The priI ciple of constitutional law
here announced is familiar to the Courts and
bar. (Field VS.. The People, 2 Scammon, 79
Bridges VS.. Shallcross, 6 West Virg., 575.) We
look to the Constitution for Limitation upon
the powers OF the Legislature; and we look to it
for grant of power to the executive and judi
cial branches of the Government; and if no
grant is found in the Constitution tue power is
denied. Such is the theory of our Government.
The third Article of the present Constitution
is the same as the third Article of the former
Constitution, under which the case of The Peo-
pie ex rel. Finlay VS.. Jewett was decided. 1t is
conceded that the Legislature in its discretion
has power to create any Office for the benefit of
the public and fix the term of its duration in the
absence of a constitutional provision creating
the Office or fixing the term then If this be so,
according 10 familiar principle in law that the
major power includes the minor, the power
that creates the Office nay fill it; and this prin-
ciple has been acted upon by the Legislature
and recognized by the judiciary as a statutory
principle in law from the organization of the
State Government, as the volumes of statutes and
decisions OF the Courts will show upon eXamina-
ton. In the case THE Peorleys. Fitch. Cal 5l9
the Court said the right of the Legislature to
elect and control the state Printer cannot be de-
feated by any interference in favor of the ap-
appointing power of the Government" Such
was the construction of the former Constitution
as it stood when the present Constitution was
adopted. 1t recognizes the principle that the
power which creates an office may fill it. Why
is il not as much the exercise OF legislative
power to create the right OF one person, to the
exclusion of all Others to hold or exercise the
functions or duties of an Office as it is TO create
the office itself? Why is it not as much the ex-
ercise of legislative power to confer upon one
person, TO the exclusion of all others, the power
10 perform the duties or discharge the functions
of once, as it is to create his right to salary
fees or emolument for the performing of such
duties or discharging such functions? The
theory of our Government is that the sovereign
or despotic power of government abides in the
people; and in view OF this principle, the peo-
pie in their sovereign legislative capacity, by
the present Constitution created the Offices of
Governor, Lieutenant-G Governor, Secretary of
State, Controller, Treasurer, Attorney General
Surveyor. General Superintendent of Public
Instruction, Superin tendent of Schos
in each county, Justices of the Supreme
Court, Judges of the Superior Courts,
members of the State Board of Equaliza-
tiop, Senators and Assemblymen; and reserved
the right and power TO themselves to fill those
offices by election. The comforting upon any
persons the right by election TO hold or occupy
those offices and receive the salaries and emol-
uments incident thereto is no less the exercise
of legislative power because 1t was the act OF
the people in their popular sovereign capacity
than was the act OF creating those Offices by
adopting the Constitution at a general election.
This is the highest, most trauscendentat and
sacred exercise of legislative power known n
modern civilization. The only Offices created
by the Constitution III which the Governor is
granted power TO take part in filling for full
term are the offices of the members of the State
Prison Directors, and in this his power is linn
tied TO the appointment "by the advice and
consent of the Senate" Though he is the Com
mander-in-Chief of the State militia, yet the
people did not by the Constitution grant him
the power to appoint or elect his staff or o.her
militia officers II may be questionable whether,
under Section of Article VIII. of the Constitu
ton, the Legislature can confer power by
statute upon the Governor to appoint any
militia officer. This, however, is only material
| in considering the question presented in this
case as indicating the intent OF the Constitution
TO limit the patronage OF the Executive; anc
this intent is more apparent from Section 8
Article " of the Constitution, which grants Il
| the Governor the power TO fill a va
cancy in Office in case no mode is provided
! by the Constitution and laws for filins
| il, by granting commission, which shall ex
pire at the end of the next session of the Legis
| lature or at the next election by the people
| This clearly implies the power in the Legisla
| ture to fill the vacancy; otherwise, why should
| the commission expire at the end of the mex
session of the Legislature after the var ancy oc
CURED? By necessary implication the Lcgis
| lature may fill all vacancies by virtue of il.
| legislative power. except vacancies occurring
| in the officers OF Justice tithe Supreme Court
/ and some others where tn eConstituiion provide,
| especially that the governor may appoint per
| son TO hold the Office until person is elect {
| and qualified to fill the vacancy. The tact tina
| the Governor may, by virtue OF POWER granted
him in the Constitution, fill vacancies in Offices
under certain enumerated conditions, and ap
| point State Prison Dire cors "by the advice anC
/. consent of the Senate" does not change tn,
nature of the power exercised by him in such
case, from Legislative TO executive powers. IL
considering the nature of the appointing powe
in the case of Field VS.. The People, Seam. 1i3
| Wilson, Chief Justice in delivering the opinion
| of the Court said: And does the Governor
right to appoint the staff officers and Secretary
| of State create general rule. and constitute
| the appointing TO Office an executive function
under chr Constitution l think not" Gu
Constitution is similar TO the Constitution under
may be considered as authority for oul
| guidance Though the appointing power is
/ legislative power, the Governor may exercise /
| in the cases specified and enumerated in the
| Constitution because Article III. of the Consti
tuition authorizes il. II is within the exception
| therein provided. But the legislative power
which the Governor is expressly directed o
permitted" to exercise are few. Section o
| Article XX. of the Constitution as ii 20 remove
all restriction from the power of the Legislstu-,
as to the subject under consideration, provide
| that .-all officers or Commissioners whose elec
| ton or appointment is not provided for by thi
| Constitution, and all officers or Commissioner
whose Offices or duties may hereafter be createt
| by law, shall be elected by. the people or ap
| pointed. as the Legislature may direct An,
| such was the language of the former Consiitu
| ton on the same subject. IL is clear from tn
| Language OF that section that 1t was the inten
| were not created by the Constitution and til
| mode of filing them provided therein, tn
power of the Legislature to create Offices an
! ill them is as comprehensive and absolute Il
| the words =" The legislative power of thi
| State shall be vested in a Senate and Assembly
| in the first section OF Article ". imply. Tn
! words Legislative power were evidentl
| used in that section in their mo.
absolute, comprehensive. popular and IN
| limited sense, because the people in thei
| wisdom deemed il necessary 10 impose limita
| was done by section twenty-five of the same al
| tiele and other provision in. the Constitution
We have been unable to find any provision /
/ the Constitution which directs the Legislature
elect or appoint any officer, not even Unite
States senators but section twenty-eight of IN
| same article of the Constitution regulates elet
tioDs by the Legislature in these words g In a