The morning call., 1893-11-16

resolution was not legally passed in the
Senate. because Senator Voorhies was
announced as having voted AYE" when he
voted "no," and that Senator Hart, repre-
senting Sacramento County, presumed that
Senator Voorhes had voted AYE" instead
of mo" and believing that the required ma
jority of twO-thirds had been gained voted
"aye" for the purpose of moving to re-
consider the vote. and Senator Voorhies
promptly moved to adjourn the Senate
before be could make his motion to re-
consider. Voorhies next day asked per-
mission to change his vote to "no." Per-
mission was granted. But when Senator
Hart asked leave to change his vote to
mo-" bis request was refused. II is ad-
mitted in the Rideout case that the consti-
tutiOna amendment as entered in the
Senate journal was introduced, adopted
and certified regularly.
Counsel contended that the fact that the
journal of the Assembly omitted the
words ''of this State," added an IS" tc the
wold ''law," omitted the word ''the'' be-
fore Secretary of State," did not in-
validate the amendment. because 1t had
been held that the journal of the Assembly
need contain only an identifying refer
ence. This particular amendment cannot
be submitted to the people under the pro-
visions Of the statute of 1885.
Mr.. Warehouse com bated Judge Nc
kune's point that the Identical Legisla-
lure which passes an amendment to the
constitution must provide the manner in
which the same is to be submitted, and
held that the debates of the constitutional
convention show that any Legislature
could do this. Since the passage of the
act of 1888 millions of money had been ex-
pended under constitutional amendments
which had been submitted the people in
the same manner as was proposed to
submit the capital removal amendment.
The validity of some of these amendments
has been passed on by the Supreme
COnIt, which has recognized this
method of submitting an amendment
to the constitution. He again reverted to
the proceedings in the Senate Cn the Sey-
mour resolution and contended that even
after changing the vote of Senator Voor-
hies the resolution still had requisite
two-thirds majority. True, Senator Hart
claimed that he had voted "ayep for the
purpose of moving a reconsid Grafton, but
the record shows tn at he had voted in the
affirmative and it yet stands on record No
reconsideration was had. Senator Hart
was not allowed to be recorded in the
negative, hence all the court could do was
TO take cogniZance of the record without
considering the matter Of Senator Harris
Intentions.
Counsel cited an Ohio case in which
constitutional amendment was approved,
enrolled, submitted to the people and
carried. and yet it was but an Assembly
substitute resolution and the Senate had
not voted on ii. An effort was made to
have the amendment annulled, but the
legislative records had shown it to have
been regularly passed and the courts re-
fused to go behind the record. This case
was referred to for the purpose of show
ing that an omission or addition of word
or letter in the Assembly to the Seymour
resolution could not affect it. as the record
shows the original resolution to have been
adopted. The will of the Legislature,
counsel held, could not be set aside by the
error of clerk.
A. L. Hart followed on behalf OF plain
tiff Rideout. Mr.. Morehouse. he said, had
ignored one esta blished rule for constru-
Ing the provisions Of the constitution. In
the proposed amendment no effort was
made to change any principle of the
constitution but to remove fact
that existed. the fact that Sacra-
mento was the seat of government.
The original section and the one
proposed are identical in principle.
the only difference being in the matter of
location OF the State capital. Section / of
article Xxx of the constitution is as plain
as the English language can make 1t. aud
should be obeyed by the law-making power
as we'll as by the people. The Legislature
undoubtedly has power to change the con-
stitution, but it has no power to so change
it as to do a certain thing which the con-
stitution expressly prohibits. An ordinary
amendment could be submitted at special
election, even while the Legislature pass
Ing the resolution was in session, but it had
been wisely provided that seat of gov
ernment shall not be changed except by
two-thirds vote of all the electors of the
State voting at general election. There
was a good reason for this. for the trainers
of the constitution did not propose to
have so important a. matter hinge npon
the mere temporary popular sentiment or
excitement attendant upon some ordinary
or special election. The constitution says
the seat of government shall not be re-
moved except by certain means; but the
Legislature, acting under the excitement
of the moment, igno ores the language Of the
constitution and attempts to do that which
it is expressly prohibited from doing. If
the question could be submitted or carried
out under any other provision of the con-
stitution then section ! of article Xxx
should not be allo wed to remain in the
constitution.
Many important points at issre were
not argued by General Hart, as they were
argued at length in his brief. He said
that suppose the people should approve
the proposed amendment, and the people
of San Jose should fail to donate a site or
the $1.000,000 offered. the constitution
would declare San Jose to be the capital
of the State. while Sacramento would con-
tinue to be the defacto seat of government
This would be absurd.
In the case Of d. G. Livermore against
Secretary Waite. l.. T. Hatfield and Grove
Il. johnson appeared as counsel for the
plaintiff and the San Jose attorneys for
the defense. ID. nj. Delmas said the two
actions simply called upon the judicial
officers of the State 70 enioin the & cretaro