The record-union., 1893-06-10

prove the donation site or not. Suppose, for
example. that this court should hold this pro-
posed amendment TO be valid; that it should
De submitted. under proper legislation, TO the
qualified electors of the State; that it should
receive ratification by the support of a ma
Jorlty OF the qualified electors voting thereon
anu Jhat the Governor, Secretary of state and
Altorney-tTeneral, or any two OF them, being
opposed 10 The measure, should refuse to ap-
prove any site rendered by the city of san
jose, or It's friends. as a donation in pursuance
OF SAD proposed amendment, what, under
such circumstance, would be the re
part OF the Constipation, and San Jose
would, therefore, be declared to be the
seat OF government. But the removal of
tle capital ana the construction OF the Capitol
building In which to hold the sessions OF this
court ana of the Legislature, would depend
upon the approval OF the site, thereafter TO be
iilaue oy three men, viz: the Governor, the
secretary of State and the Attorney-GeneraL
AS result, the Capital would practically re-
main IN sacramento, while it would theOreti-
carly DC IN san Jose ana the ultimate decision
as 10 when the seat of government should be
actually removed would rest with the Gov
erhor, the Secretary of State and the Attor-
ney General. The prOVal or the site, which
would finally determine the lie giSlative policy
involved in the scheme would thereby nee
essarlly be delegated to three executive Off
GERS; that is to say the legislature, in this
instance, has attempted to pass "a measure
which Is to take eject upon an uncertain con-
dltlon, the performance of which involves
4tS lSldIINe ana political discretion, ana mas
attempted II delegate that legislative and
political discretion finally to three executive
officers.
Besides, the first clause of the proposed
amendment declares the city Of san lose TO be
the seat OF government. The last sentence Of
the same proposed amendment provides that,
upon the approval of the site by the officers
named, the LeSlS AZURE snail provide for the
erection OF the necessary building and Tor the
removal OF the seat OF oVernment. The con
slslency OF ths language of this proposed
l. Ia iaa .farf a he
elaboration exercised by the members of the
Legislature when they were drafting and
framing it rs a lit sample OF legal literature to
grace me fundamental law. 1t VIII be OBJ
served that The proposed amendment first de-
clares the seat of government to be at san
Jose, and then provides that, after san Jose
has made the appropriate donation the Leg
lslaturG shall Immediately proceed to remove
SAID seat OF government, but the sa2aciOus
BODY that proposed the amendment DID not
seem 10 deem 10 eXpedlent or wise to name
the place u which the seat Of government
should be removed after said site was APP
proved 10y the three executive officers named.
TINS attempt at conditional provision for
the removal OF the seat of government is as
utterly in conflict with Section l OF Article
Ky. as IL could have been made. The pro-
posed amendment, after providing that the
seat of government is ut the city of san
Jose and shall remain there until changed
by law, and after providing that no law
changing the seat Of government shall be
valid or binding unless the same be approved
ana ratified in the manner now provided by
section Of Article N&., proceeds to state
condition, without stating the effect of that
condition, and then to provide that upon Il
certain contingency, the Legislature shall pro-
vide tOr the removal of the seat Of govern
ment. II it was intended by this proposed
amendment to authorize a removal by a sim
pie ACT OF The Legislature, without ratification
Dy the people, after the approval OF the site by
the Governor the Secretary of State and the
AttoIney-General, then, indeed, The provision
IS in utter conflict with every principle upon
ms subject announced by Section of Article
M. The correct Interpretation. however, of
tnis hasuly drawn amendment probably Is
that san Jose is declared to be the seat OF gov
eminent by 1t, and that the said amendment.
after being ratified by the people. Is not to
take elect until the conditions named in 1t
have been complied with. The seat of gov
eminent, therefore if this amendment
would not exist as the result Of
any declaration contained in the
Constitution itself Its final establishment at
the city of San Jose would depend upon proof
of the fact that the Governor, Secretary Of
state ana the AttOrney-GCnar al had approved
site donated to the State Tor the purposes OF
Us capitol building. such a scheme is utterly
IN c)uHlct with the provisions Of the GOnsti-
tuition. The manner provided for the removal
o. the Capital by law enacted by the Lexis
lature, approved and ratified by a majority Of
tHe electors OF ;he state is one which is plain
uiiG simple in its execution, and one whose
policy ought to tie made TO depend, simply
ana only, upon sanltIry anu geographical
questions. 1 ne State can afford to have its
capital where ii Will best conserve the health
ana convenience Of Its people, and legislation
based upon any other policy is in utter and
absolute disregard of every principle an
nounced by the present Constitution. The
difference between the scheme designed by the
Constitution for the removal of the seat OF
government and that conceived and proposed
at the late session OF the legislature is so
marked as to be easily observable. In the
one case, pursuing the Constitut on as it is
the Legislature may pass a law and, by a two
thirds vote, make regulations and provisions
tor the submission OF said law for ratification
by the people, and if ratified by u majority of
the electors OF the State voting at Il general
election lhe seat of government becomes
changed.
Under the proposed amendment the city of
San Jose is declared to be the seat of govern
ment provided that some unknown person
snail make Il donation of site of not less
than ten acres and of ) ,OUO.O and pro-
vided, further, that three executive officers Of
the State shall approve said site and that the
Legislature shall thereupOn provide for the
erection of the necessary building and for the
removal of the scat of government In the
one case, the seat OF government would be re-
moved as the result of public policy or neceS-
sltY, in accordance with the declared wishes
OF two-thlrds of the Legislature and ma
jorty of the electors of the State; in the other
case, the removal would result from a pro-
posed amendment of the Constitution the
votes of n majority OF the electors voting
thereon at any election which the Legislature
might designate as proper one at which to
submit the question, the donation Of land
and money by some unknown person, and
ernOr, Secretary Of State and Attorney
General. We ind nothing in Section l
OF Article XN. which authorizes any such
a scheme. We certainly ind nothing in that
section which authorizes the Legislature to
make the wishes of the people, properly ex-
pressed, TOR the removal of their seat of gov
eminent. dependent, in any respect upon
the will or discretion of the Secretary of
State or the AttOrney-General. Indeed, if
law were passed as prescribed by Section l of
Article XN., providing for the removal of the
(RDlt0i. and that law DrOlerlV
by "A majority of the electors of the state
voting al a general election, under regulations
and provisions properly passed by the Legis-
lature, no provision which could be placed in
the enactment could prevent the immediate
removal OF the seat OF government as the re-
suit of those acts and the command of the
law properly passed. proper majority of the
electors OF the State shall express their APP
prevail and ratification of a legislative effort
to remove the seat of government, that re
mOval must take place, Notwithstanding
any legislative conditions which may
be made; for the Legislature has no
a majority of the people to determine where
the seat OF government OF the State shall be
established. The extent of the power Of the
Legislature in this respect is to provide for a
change OF the seat of government. and then to
provide for the submission OF the cues
ton of said change to the people at a
general State election. Each citizen of the
State is interested in the location to be Sc
lected, and each is interested in having the
question determined py the votes OF the peO-
pie upon questions of public necessity and
public policy, uncontrolled by any considera-
ton OF donations, gifts, or subsidies offered
by different localities; and any condition.
based upon considerations other than those OF
necessity and sound public policy, would be
utterly IN conflict, not only with the letter
but with the spirit OF the Constitution. The
power must be exercised conformity bv the
Legislature and the people. and neither can
impose any condition upon the exercise of the
power OF the other which is not authorized by
the provision from which the power is de-
rived. RESPECTFULLY submitted.