The record-union., 1893-11-16

4
Senator Hart claimed that he had voted
aye for the purpose of moving recon-
sideration, but the record shows he had
voted in the affirmative, and 1t yet stands
thus on the 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 Hart's 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 for a Senate resolution and the
Senate had not voted on it. An effort
was made 20 have the amendment an
nulled, but the legislative records showed
it TO have been regularly passed ana the
| courts refused to go behind the record.
This case was referred to for the pur
! pose of showing that the omission or ad-
dition 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 through the error
of clerk.
ARGUMENT OF GENERAL HART.
General A. L. Hart followed on behalf
of plaintiff Rideout. Mr.. Morehouse, he
said, had ignored one established rule for
constituting provisions of the Constitution.
In the proposed amendment no effort
was made to change any principle OF the
Constitution, but to remove a fact that
existed-the fact that Sacramento was the
| seat of government. The original sec
ton and the one proposed are identical in
principle, the only difference being in the
matter of the location of the State Cap
ital.
Section of Article Xxx. of the Consti-
tuition is as plain as the English language
can make it, and should be obeyed by the
| law-making power as well as by the
people 1t was contended that this sec
manner from that provided by it.
! The Legislature undoubtedly has the
! power to change the Constitution, but it
! has no power TO so change it as to do a
certain thing which the Constitution eX-
pressly prohibits.
| An ordinary amendment could be sub
mitted at a special election, even while
! the Legislature passing the resolution
was still in session, but ii had been wisely
! provided that the seat of government
shall not be changed except by two
| thirds vote of all the electors of the State,
voting at a general State election. There
| was good reason for this, for the trainers of
the Constitution did not propose to have
so important matter hinge upon mere
affected by the excitement attendant upon
some ordinary or special election.
The Constitution says the seat of gov
ernment shall not be removed except by
certain means, but the Legislature, acting
under the excitement OF the moment,
| ignores the language of the Constitution
and attempts to do that which it is ex-
pressly prohibited from doing.
| If the question could be submitted or
carried out under any other provision of
the Constitution, then Section L of Article
Xxx. should be wiped out and not allowed
to remain in the Constitution.
Many of the important points at issue
were not argued by General Hart. as he
had argued them at length in his brief
submitted in the case
In conclusion, he said suppose the peo-
pie should approve the proposed amend
ment, and the people of San Jose should
fail to donate the site or the 81 200, 900
offered, the Constitution would declare
San Jose to be the Capital of the State.
while Sacramento would continue to be
the de facto seat Of government. This
would be absurd.
THE LIvERMoRE CASE.
In the case of ii. G. Livermore against
Secretary Waite, l.. L. Hatfield and Grove
l.. Johnson appeared as counsel for the
plaintiff and the San Jose attorneys for
the defense. ID. NJ. Delmas opened the
argument. The two actions, he said,
simply called upon the judicial officers OF
the State to enjoin the Secretary of State
from performing the simple duty of for
warding certain documents to the several
County Clerks of the State on the ground
that there would be entailed an expense
not warranted by law. The matter had
taken wide range, and included many
subjects which counsel thought were not
properly before the court.
Counsel denied that the question of cap
ital removal was properly an issue before
the court-the simple question being
whether or not the Secretary of State
should perform certain ministerial duties
imposed upon him by law. When the
Legislature adopts proposed constitu-
tional amendment, whether regularly or
otherwise, it is the simple duty of the
Secretary of State to transmit that amend
ment to the County Clerks. 1t is not the
province of the Secretary of State to pass
upon the question of the propriety or i'm
propriety OF the proposed amendment.
MIR, Delmas said the next point was
whether or not the constitutional amend,
ment had been proposed by the Legis-
lature. He held that it had, and III due
course of time reached the Secretary of
State, who has but one duty TO perform.
Counsel opened the door to the argument
of the points ct issue, however, by saying
that the plaintiffs claimed the Seymour
resolution is not a constitutional amend
ment in the proper sense. The people,
he said have the right TO vote on con-
stitutional amendment that had received
the proper vote III the Legislature, and
the courts could not deprive them of it.
Despite the fact, counsel said, that Sec
ton l of Article X Y. OF the Constitution
declares that different mode shall be fol-
lowed in amending it from that employed
in other cases, still it does not mean that
that section shall not be amended under
the provisions of Section ! of Article
XVIII. Otherwise the former section is
yond the amending power of the Legis-
lature or the people, and Sacramento must
remain the permanent CAPITAL of the State.
If the Legislature had the power to pro-
pose an amendment to the Constitution,
then it has done SO, and Secretary Waite's
duty is plain. The only other question
is, whether or not provision has been
made for submitting such amendment 10
the people.
Mr.. Delmas then argued at consider
able length that the Act of 1853 provided
a general method for submitting all con-
stitutional amendments to the people,
and that Section L of Article XXX. was no
exception to the rule. He also denied the
right Of the court to go behind the bare
record of the Legislature to ascertain why
and how certain votes were cast in the
Senate. This line of argument was the
same as that followed by Mr.. Morehouse.
MIR. HATFIELD's POINTS.
L. T. Hatfield, of counsel for Livermore,
briefly reviewed the history of the two
cases, and quoted from the findings Of the
lower court to show that the proposed
amendment to the Constitution had regu-
larry passed the Legislature. The Secre-
tary of state did not find the copy filed
with him to be true copy OF the original