The record-union., 1893-06-23

stltutlonal Amendment No. Is, and the
correction was allowed. The effect Of
TINS correction was to change the vote
py which the proposed amendment
was adopted from 2S to II ayes"
and from 7 TO s noes" Senator
SeaWell then moved that the journal
be corrected so that it would be shown
that Senator Hart voted mo" instead of
aye on the adoption of the proposed
amendment. The obvious effect OF al
lowing this correction would have been
10 defeat the amendment. u ''ayes" being
necessary to its adoption. Senator Car
penter then offered as a substitute for
SeawelPs motion to correct the journal.
1hat Senator Hart be allowed to make
an explanation regarding his vote on Sem
ate constitutional Amendment No. %,
ana that the same be spread upon the
Journal" The roll was called and Car
penter's substitute was adopted. Hart,
being thus denied his right to correct the
journal to accord with the fact, entered
protest against the passage of the pro-
posed amendment asking that he be al
lowed to have his vote recorded against
sald proposed amendment, as he had
voted that way first, and had changed
MS vote Tor the purpose Of giving noUlce
OF motion to reconsider. This protest
was referred TO the Committee on Judi
clary. On March 18th this committee re-
ECAbOO OlI tn6 lIObGSG GlltItu ny CGIldIOL
Hart, to the effect that he HART during
the entire consideration of said amend
ment was opposed to the same, and
earnestly and ably endeavored to defeat
the same, and did all that it was possible
for him to do for his constituents in the
premises" The committee then recon-
mended that Senator Hart be permitted
to have the following personal statement
entered upon the journal:
hon Ln vCI1 Of 1Is,I
last Saturday evening on the passage Of sen
ate Constitutional Amendment No. 23, and
my name was reached, l voted mo Upon
the completion OF the roll call, and before the
announcement Of the vote, | ascertained that
tWenty-seVen votes had been cast in favor Of
said amendment. Thereu pom | changed my
vote from MOI to AYE" for the purpose of
giving notice at the proper time of a motion
TO reconsider the vote whereby SAID Senate
constitutional Amendment No. 23 was
adopted. The President Of the Senate there
upon announced the vote as % ayes and !
noes. Upon the announcement OF the vote |
at once attempted to gain the recognition Of
the Chalr Tor the purpose OF carrying out my
intention OF giving notice OF motion to re-
consider but a motion to adjourn was put
and carried before | could gain such recogni-
ton, and was thus prevented from giving
such notice OF motion to reconsider.
This report was unanimously adopted.
1t is contended by the plaintiff, that
taking the Senate journal as whole, it
voted in favor of the resolution. The
contention is not without some merit, but
l do not think it can prevail. AS | under
stand the action OF the Senate as ex-
pressed in its journal, it is an admission
that that august body took an unfair ad
vantage of Senator Hart, and refused to
allow him to move a reconsideration or to
correct its journal to accord with the fact.
l never before heard OF an instance where
a vote changed from the minority to the
majority for the sole purpose Of moving a
reconsideration was counted as vote in
favor of the proposition for the purpose of
determining whether or not the measure
had carried, and at the same time the
right to move a reconsideration truS-
trated by an immediate adjournment as
was done in this case. The Senate, how
ever, refused to allow the record to be
corrected and refused to allow a reconsid-
Grafton; and l know of no way to take
advantage of that tribunals refusal to re-
spect the rights of one of its mem bers.
1t follows that Harts vote must be
counted in the affirmative, notwithstand-
ing the sharp practice by which 1t was so
entered and held.
On the llth Of March, 1893, Immediately
after the announcement of the vote in the
Senate, the original resolution was sent
to the Assem- bly,, and under suspension
OF the rules was taken up and passed. \
notice of motion to reconsider was then
given, which motion was tabled on the
18th; and motion to take it from the
table was lost on the same day.
The whole proceeding in both houses
was characterized by an indecent haste
unbecoming in any deiberative body,
and especially so in the Senate of the
great State Of California, an assembly
popularity supposed TO be composed Of
the most potent, grave and reverend
seigniors" to be found in the realm"
8. The second point urged by the plaint-
iii is that the two houses did not vote
upon the same proposed amendment.
BY reference to the journal of the Senate
it will be seen that the proposed amend
ment was spread at length upon its
record, but an inspection OF the journal
of the Assembly shows that five words
are omitted that appear on the Senate
journal. In the Senate journal the lam
guage of the proposed amendment is {:
section l. The city of San Jose is hereby
declared to be the seat Of government of
this State" etc., and in the journal of the
Assembly the words ''of this State" are
omitted. In another part of the same
section the word ''the'' is found in the
Senate journal, but is omitted in the
journal of the Assembly.
These omissions, it is contended by the
plaintiff, destroy the identity of the pro-
posed amendment, and if | considered
the question an open one in this State, [
would be inclined to that opinion. A
large number of authorities were cited by
them to this point, among which may be
mentioned: State OF \ evada e. rel Chase
VS.. Rogers, 10 New. $50; koehler Il Lange
vs.. Hill 80 Iowa, 900, and Oakland Paw
ing Company VS.. Hilton, 50 Cal. 1921
but the latter case has since been in effect
overruled in the case of Oakland Paving
Company VS.. ThOmpkins, Y Cal. I, and
no later case has been called to my atten-
ton modifying the ruling as then made.
In all the cases cited upon this point
from other States the words omitted were
material, and the effect OF the admission
was to alter the intent and meaning of the
proposed amendments. In the case at
bar the words omitted do not, in my iudg-
ment, alter the meaning.
The proposed amendment was entered
in the Journals OF both houses by refer
ence to its title, Senate Constitutional
Amendment No. p, " and the purpose of
the proposed amendment was stated in
its caption in ordinary and concise lam
guage. 1t was not necessary that it should
have been spread in full upon the Jour
mails, although that practice has hereto
fore been almost always adopted.
Upon the authority of Oakland Paving
Co. vs.. 1hompkins, supra, l think that
all was done that was necessary. and
anything more would have been sur
plusage.
< We now come to consider what seems
to me to be the vital point in the case:
Can Section l of Article X be amended
under the provisions of Section l of A rti-
Gle XNIII.? Section l of Article XVIII.
is as follows;
Section l. Any amendment or amend
ments TO this Constitution may be proposed
in the senate or Assembly, ana If two-tnirds
OF all the members elected 10 each OF the two
houses shall vote in favor thereof, such pro-
posed amendment or amendments shall be
entered in their journals, with the ayes and
nays taken thereon; and it shall be the duty