Los Angeles daily herald., 1889-06-27

view the matter, III is necessary, ior tne uispo'
sition Of the case, to consider only such objec-
tions as go to the validity of the act as whole,
and ths Sc may be considered under the follow
ing heads:
galion of Legislative power. "
Second. That it is an attempt to legislate by
local and special act in matter where gen
| eral law could be made applicable.
| The act in question is entitled: An Act TO
! create The County OF Orange to define the
| boundaries thereof. to determine the county
| seat by an election, and to provide for its or
| ganization and election of officers, and to
classify said county.
The first section reads; upon the assent OF
| an election to be held for that purpose, as p O.
| yided for in sections and of this act, there
| shall be formed out of the southeast part Of
| Los Angeles county new county, to be known
as the County of orange, which shall rank as a
county of the 9Th class. until the census of
$50 is taken and new apportionment is
had.
The second section defines the boundaries
the third provides that the county seat shall be
chosen as hereinafter provided. and the fourth
provides for the appointment of Commissioners
10 call the election, etc. and declares "lf at
such election less than two-thirds of the quail
fed electors voting for and against the creation
of the proposed county vote for the creation of
such county, then this act shall cease to be in
force or effect" The last section reads: 'This
act shall take effect and be in force from and
after the date of its passage and approval. Stat.
II is s'renuously claimed by able counsel on
the part of the people that the provisions of this
act that the county shall be formed upon the
assent of two-thirds of the qualified electors
within the boundaries Of the proposed county is
a delegation of the law-making power, and
therefore that the act Ia unconstitutional and
void.
That the Legislature cannot abdicate its
function and delegate to the people the right
by popular vote 10 make laws is unquestioned,
but is this act such delegation OF the Legisla.
In is74 the Legislature passed an act en-
fhsaf tow ftnrr
prised in the present County of Klamath to the
Counties of Humboldt and Siskiyou." The first
section provides thatthe Board of Supervisors
of Siskiyou County shall issue proclamation,
ordering an election to be held in the county at
which the qualified electors of said county
might vote on the question OF annexation TO
Sis kiyou County hereinafter specified, and
upon the conditions therein specified. The act
provided for the manner of conducting the
election and csnvsssing the returns, and in
the fourth section declared, "If it shall be
found that majority of the legal voters voting
at such election had voted for annexation, the
Board OF Supervisors must, within five days
after eanyassing the retur1s' make out two sew
eral statements of the result, one OF which they
must forward by mail to the Board of Super
visors of klamath County. and the other to the
Board Of Supervisors of Humboldt County and
thirty DAYS after canvassing the returns of the
election, il majority of the legal voters voting
at such election shall have voted for annexa-
ton the organization and government of
klamath County shall be abandoned, and such
portions OF the territory heretofore constituting
said county shall be annexed to Humboldt and
siskiyou Counties respectively, on such con.
oitions as are hereinafter defined, and
de Of this Ps0vSt' act shall be in force from
and after that date" The last section of the
act declared, This act shall take effect and be
in force from and after its passage" Stats.
1874, pages 755-5S. An election was had
under the act. and majority of the voters of
Siskiyou County declared in favor of annexa-
ton, and the Board of Supervisors, as required,
forwarded the statement of the result to Kla-
math and Humboldt. James Nally, the
Assessor of Klamath thereafter refused TO pre-.
pare an assessment book as required by the
Political Code, claiming that klamath County
was no longer county. The Attorney-General
Court for a. writ of mandate to, compel
him, said Nally, to prepare said assess
ment book on the ground that, the
act IN qqesti9n1 was n ana
before. The ground on which the Attorney
General claimed that the set was unconstitu-
tional, was that it was an attempt to delegate
legislative power to popular vote. The Court,
in its opinion by Justice Crockett, says: I'm
this, the only proposition submitted to popu-
lar vote, was whether portion of klamath
should be annexed to Siskiyou county, and if
the vote was in the affirmative, then the county
of Klamath was to be abolished ana its terri
tory annexed to Siskiyou and Humboldt coun-
ties, in the manner provided in the act. The
case. therefore, presents the naked question, |
whether an act anneXing a portion of one
county to another, and which is to take
vote of one of the counties is in favor
of annexation is delee cation of legislative
power. 1t is to be observed that the act related
to a matter of purely local concern, in which
the people of the district to be affected by it
were alone interested. In this respect 1t diff |
fers materially from the Local Option liquor |
laws, SO called, which was involved in ex parte |
Wall, 48 Cal, 27S. In that case the question |
was whether a statute authorizing a general |
law to be suspended in certain political subdi- |
visions of the State by vote of the people of |
the district was a delegation of legislative |
power. However the rule may be in that class |
OF cases, it is settled. / think. by an over |
whelming weight of authority in this an ID many |
other states than in mat ers of purely local con-
cern it is competent for the Legislature to enact |
that a statute affecting only particular local |
ity shall take effect condition that it is ap-
proved by majority of the people whom the |
Legislature shall decide are those who are in |
terested in the question: And, again: THE |
legal proposition involved in the case is not af-
# cted by the fact that the electors of Siskiyou
county only were required to vote on the ques- |
tion of annexation" And the Court cites au- |
thorities in support OF these views. People VS.. |
McNally, 49 Cal, AIS ct seq.
1t is difficult tosee any difference in principle
between these two cases. The one was for the |
abrogation of an existing county aud the annex |
alton of its territory to adjoining counties de- |
pendent upon the vote of the people of one |
of the adjoining counties concerned, the other |
is for the creation OF county out of the terri
tory OF an existing county upon vote of the |
people within the limits of the proposed new
county. Both acts in terms take effect upon |
their passage. The one provides that in case OF |
an affirmative vote on the part OF the voters of
Siskiyou county that then the organization and |
government of Klamath county shall be aban. |
doned, and that the remaining provisions of
the act shall then be in force; and the other
provides that unless the two-thirds vote in the
proposed new county shall be in the
of no effect, but that in case two-thirds of the
qualified electors vote in the affrma-
tive. then the Commissioners, defendants
herein, shall proceed to the further eXer-
else off their duties, and that the other provis-
ions Of the act shall be carried out.
In the Klamath county case, it was directly
held by the Supreme Court that the act was con-
stitutional, Notwithstanding it depended upon
the vote of one county whether another county
should be abolished and its fragments be an
nexed to that county and another adjoining
county; and upon the authority of that case, we
cannot say that an act to create new county,
in case of the assent of two-thirds of the elec-
tors within the boundaries Of the proposed new
county, is unconstitutional on the ground CT
being delegation of legislative power.
The second objection going to the constitu-
tionality OF the whole act is that the Legisla
ture has no power by special law to form a new
county. That objection is based upon the 25th
section of the fourth article of the Constitution
of 1879, which declares that the Legislature
shall not pass local or special laws in any Of the
enumerated cases. Then follows thirty two
different matters and the subjects wherein it is
which is added the thirty, third subdivision, as
follows "In all other cases where a gene raj
law can be made applicable" The creation
and organization of a county Is not specified in
the Legislature cannot pass local or special
law, but it is claimed general law could
be framed covering that subject, and
therefore that it falls within the thirty
That the convention which framed the consti-
tutiOn had in view the fact that. in the future