The record-union., 1891-02-11

following opinion yesterday, which is
the most important decision he has made
since his incumbency:
SACRAMENTO, February 10, 1891.
Hon. @. j. CdmpbeU, Senator of the
Ete0enth Senatorial DiSt1ict-MY DEAR
SIR: In reference to your inquiry .'As
to whether or not the Senators elected at
the last general election will hold for the
null term of four years, from twelve
O'Clock, Monday, January 5, 1891, in the
event that the State is reapportioned un-
der the Federal census of 1897 would
reply as follows:
1t is provided by Section /, Article w.,
of the Constitution:
.'Section l. The legislative power OF
this State shall be vested in a Senate and
Assembly, which shall be designated
The Legislature of the State of Califor-
MAJ ETC.
The legislative department of this State
represents the mass of political powers,
9nd is no further controlled as to its
powers or mode of their exercise than by
the restrictions placed upon that depart
ment by the Constitution.
The Constitution of tie State is not a
grant of power but is g restriction upon
f.:c Powers Of the Legislature to exercise
all powers not forbidden or provided tio7
by the Constitution of the State, or dele
gated to the general government, or pro-
hIblted by the Constitution OF the United
states, or the treaties OF Congress made
Hereunder.
Section %, Article T., of the Constitution,
provides as follows:
Section y. The provisions Of this Con-
stitutlon are mandatory and prohibitory
unless by express words they are de-
clared to be otherwise"
Section of Article ". of the Constitu-
tlon provides as follows:
a..
the term of four years, at the same time
and places as members of the Assembly,
and no person shall be member of the
Senate or Assembly who has not been a
citizen and inhabitant of the State for
three years. and OF the district for which
he shall be chosen one year, next before
his election.''
From this section it is plain to see:
/. a Senator is chosen for the term of
four years.
2. And is to be elected at the same time
and place as members OF the Assembly.
3. He must have been citizen and in
habitant of the State three years before
election, and OF the district for which lie
shall be chosen one year, next before his
election.
Section 5, Article w., of the Constitu-
ton provides:
''Section5. The Senate shall consist of
forty members, and the Assembly of
eighty members, to be elected by districts,
numbered as hereinafter provided"
Section of the same article provides:
Section G. For the purpose of choos-
ing members of the Legislature, the State
shall be divided into forty Senatorial and
eighty Assembly districts, as nearly
equal in population as may be, and com
posed of contiguous territory, to be called
Senatorial and Assembly districts. Each
Senatorial district shall choose one Sena-
ir1 n icyf,
shall be numbered from one to forty in
elusive, IN numerical order, g $
commencing at the northern boundary
of the State and ending at the southern
boundary thereof. In the formation of
such districts, no county, or city and
county, shall be divided. unless it con-
tain sufficient population within itself to
iorm two or more districts; nor shall a
part of any county, or of any city and
county, be united with any other county,
or city and county, in forming any dis
trict. The census taken under the direc-
ton of the Congress of the United States.
in the year one thousand eight hundred
and eighty, and every ten Years there
after, shall be the basis OF fixing and ad-
justing the legislative districts, and the
Legislature shah, at its first session after
each census, adjust such districts and re-
apporlon the representation SO as to pre-
serve them as near equal in population as
may Dt- buJ III HldklllG Stlcn adjustment
no persons who are not eligible to be-
come citizens Of the United States, under
the naturalization laws, shall be counted
aS forming part of the population of any
district. Until such districting as herein
provided for shall be made, Senators and
-Assemblymen shall be elected by the
districts according to the apportionment
now provided for by law'
Section OF Article w. of the Constitu-
ton provides:
''Section Z. Each house shall choose its
officers, and judge of the qualifications.
elections and returns of its members,
Section of Article XX. of the Consti-
tuition provides as follows:
Section 4. All officers or commission
ers whose election or appointment is not
provided for by this Constitution. and all
officers or commissioners whose offices
or duties may hereafter be created bv
law, shall be elected by the people, or ap-
pointed, as the Legislature may direct''
Section l6 of the same article provides I:
Section 16. When the term of any Off
Ger or commissioner is not provided for
in this Constitution, the term OF such
officer or commissioners may be declared
by law; and, if not so declared. such Off
Ger or commissioner shall hold his posi-
tion as such officer or commissioner dur
ing the pleasure ofthe authority maxine
the appointment; but in no case shall
such term exceed four years.
The twosections last quoted-Sections
and l6 Of Article XN.-seem to indicate
that the Legislature may declare by law
the term OF any officers or commission
ers, 9caea that term IS not proCtded for. an,
the Consultation. l had occasion to con-
slider this question before in nv first
opinion given to his Bxcellency, r.. ".
Waterman, Governor of the State of CALI
fornia, on January 6, 1891, in reference to
the vacancy in the office of Senator for
the Fourth Senatorial District, Butte
County. In that opinion ] stated:
The members of the Senate and As
sembly of the State of California are con-
stitutional officers, and their term of
otfice cannot be more or less than rs fixeJ
by the Constitution itself; and this fixed
term cannot be increased or diminished
by the Legislature, or any Act of that
BODY.
1t is held that where the term of office
is fixed by the Constitution, the Legisla-
ture can neither extend or abridee it
(Aechem'S Public Offices and Officers
Sec. 3S7 and cases cited; see also State VS.
Brewster, Al Ohio, $50; State eS rel
Goodin VS.. Thoman, 10 Kansas. 79l: How
ard VS.. State, 10 Ind. 99.l
Therefore my conclusions from the
foregoing provisions OF the Constitution.
and authorities cited, are:
first-That the term of Senator
elected at the election of 1890, commenced
at L O'Clock noon. Monday. January *
1891, and continued for four years from
tnat hour, and that ariy reapportionment
made under the provisions of the Consti-
tuition would not affect the term of office
either by modifying, increasing or dimin-
isEing the term.
Second-That any reapportionment hill