The record-union., 1891-02-11


ioilowing opinion yesterday, which is
the most important decision he has made
SINCE his incumbency:
SACRAMENTO, February 10, 1891.
Hon. g. j. Cdmp6eU, Senator of the
1tsteUenh Senatorial DiStrict-MY DEAR
SIR: In reference to your inquiry "As
20 whether or not the Senators elected at
Lhe last general election will hold for the
Iuii 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 iS90,' would
reply as follows:
1t is provided by Section /, Article w.,
OF the Constitution:
section l. The legislative power of
thls State shall be vested in a Senate and
assembly, which shall be designated
ihe Legislature of the State of Califor-
nia," etc.
The legislative department of this State
represents the mass of political powers,
end is no further controlled as to its
powers or mode of their exercise than by
the restrictions placed upon that depart
Hlent by the Constitution.
The Constitution of the State is not a
grant of power, but is a restriction upon
me powers Of the Legislature to exercise
all powers not forbidden or provided for
by the Constitution of the State. or dele
gated to the general government, or pro-
hlblted by the Constitution OF the United
states, or the treaties OF Congress made
Hereunder.
Section %, Article l., of the Constitution,
provides as follows:
Section %. The provisions of this Con-
stltution are mandatory and prohibitory,
unless by express words they are de-
clared TO be otherwise
Section 4 of Article ". of the Constitu-
ton provides as follows:
''SectlOn l. Senators Sho11 no cbOca,, for
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
ne shall be chosen one year, next before
his election
From this section it is plain to see:
/. \ 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 a citizen and in
habitant of the State three years before
election, and Of the district for which he
shall be chosen one year, next before his
election.
Section 5, Article w., of the Constitu-
ton provides:
sections, 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 6. 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 i'll population as may be, and com
posed of contiguous territory, to be called
Senatorial and Assembly districts. Each
Senatorial district shall choose one Sena-
tor. = The Senatorial districts
shall be numbered from one to forty in
elusive, in numerical order, e
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 il con-
tain sufficient population within itself to
1orm two or more districts; nor shall
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-
apportlon the representation so as to pre-
serve them as near equal in population as
may be. But in making such 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 ~. 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 commissions
ers whose election or appointments is NOT
provided for by this Constitution, and ali
officers or commissioners whose offices
or duties may hereafter be created by
law, shall be elected by the people. or ap-
pointed, as the Legislature may direct.''
Section is of the same article provides:
Section l6. When the term of any Off
Ger or commissioner is rot provided for
in this Constitution, the term OF such
officer or commissioners may be declared
by law; and, ifnot so declared. such Off
Ger or commissioner shall hold his posi-
tion as such officer or commissioner DUR
ing the pleasure Of the authority making
The appointments; but in no case shall
such term exceed four years."
The two sections last quoted-Sections
and is OF Article XX.-seem to indicate
that the Legislature may declare by law
the term OF any officers or commissions
ers, qrfe5l bGt term Is not prooided for an
the Constellation. had occasion to con-
slider this question before, in my first
opinion given to his sXceilencv. r.. ".
Waterman, Governor OF the State of Cali
fornia, on January 8, 1891, in reference to
the vacancy in the office of Senator for
the Fourth Senatorial District, Butte
County. In that opinion I stated
The members OF the Senate and As
sembly of the State of California are con-
stitutional officers. and their term of
ctiice cannot be more or less than as fixed
by the Constitution itself; and this fixed
term cannot be increased or diminished
by the Legislature, or any Act of that
b0dy.
II is held that where the term of office
is fixed by the Constitution, the Legisla-
ture can neither extend or abridpe il.
(Mechem'S Public Offices and Officers
Sec. Ss1 and cases cited; see also State VS..
Brewster, Al Ohio, $50; State eN rel.
Goodin vs. Ihoman, 10 Kansas, 79l; How
ard VS.. State, 10 Ind. 93.)
Therefore my conclusions from fha
foregoing provisions OF the Constitution.
and authorities cited, ere:
First-That the term of a SeD9tor
elected at the election OF 1890, commenced
at Il o'clock noon. Monday, January 5.
1891, and continued for tour years from
that hour, and that aIfy rcapportionment
made under the provisions of the Consti-
tuition would not affect the term of office
either by modifying, increasing or dinin-
ishing the term.
Second-That any reapportionment bin