The record-union., 1893-06-23
The Legislatures Action Was
HaSty and Erroneous.
Article XX., and Not XVIII, Of the
Constitution Governs the Case.
Full Text Of Superior Judge Grants Deci-
sion in the Case Of L. P. LiyeFmore
vs.. Secretary Of State Waite.

Reference was made yesterday to the
fact that Superior Judge Grant of Yolo
had decided in favor of plaintiff in the
Capital removal case of II. p. Livermore
VS.. Secretary of State Waite. The decis-
ion was filed yesterday, and is given
herewith in full:
In the Superior Court of the County of
Sacramento, State of California. Hora-
ito Z. Livermore VS.. +. G.. Waite, Sec
retary Of State of the State of California.
This is an action instituted by the
plaintiff, as a taxpayer, owning taxable
property in several counties in this State,
to restrain the defendant, as Secretary of
State, from indeXing, preparing marginal
notes thereto and publishing in the oti-
cial volume of Statutes of 1888 a certain
proposed amendment to the Constitu-
ton, designated as "Senate ConstItu-
tiOnal Amendment No. D." alleged to
have been adopted by both houses of the
Legislature, proposing TO amend Section
l, Article Xxx. of the Constitution of this
State adopted by the people in 1879, and
relating to change of the seat of gov
ernment from the city of Sacramento to
the city OF San Jose. 1t Is further sought
to restrain said defendant from certifying
the said SENATE Constitutional Amend
ment No. 23'' to the several County Clerks
of this State for publication in the cleo
ton proclamation as proposition TO be
voted on at the next general State cleo
ton.
1t was conceded at the argument of the
cause, that a taxpayer might maintain
such an action, and that the Superior
Court had jurisdiction OF the same; so
that no time need be expended in the con-
sideration of authorities upon those
points.
There is practically no conflict of testi-
mony upon any issue of fact in the case,
and 1 realize that the decision of the trial
court can be of no Importance further
than to establish upon whom the burden
of appeal must fall, and l only resort to a
written opinion at the request of the re-
spective attorneys, who desire that l
should give IN writing my reasons for the
conclusions reached.
a number of points were made and
argued, but l shall consider only those
which TO me seem the most important
and decisive Of the case upon its merits.
The cause was ably argued and many au-
thorltles We're cited, but to comment
upon all OF them would require more
time and occupy more space than can
prOttaDly be consumed i'll an opinion,
which, when written, cannot be consid-
cred final or decisive of any point in
volved in the cause.
l. This defendant contends that an in
JhiNblOAA - IitO bAG IJAOPtA IbLitNy kDuL
neglectS to say what is, and cites the case
of SecOmbe VS.. Kittleson az n. w. Rep.
522) to sustain his contention. That was
an action brought to restrain the Treas
urer of the State of Minnesota from pay
ing interest on certain bonds out of funds
in the State treasury. In considering
that point the Supreme Court says:
1t the settled law of this State, If anything
can be settled by repeated adjudlcations. that
an executive officer of the State is not subject
,lg.rf int sf--
in the performance of duties belonging to
him as an executive officer; and that no act
done or threatened to be done by h IN in his
oihcial duty can he brought under judicial
control or interference by mandanus or in
junction; and this is the rule even wnen the
act is purely ministerial.
The authority is certainly in point, and
its language is too plain TO admit of con-
struction; but l do not think such is the
law of this State. Here no officer, execu-
tive or ministerial is above the law; and
if in any act be transcends his constitu-
tional and lawful powers he is subject TO
the restraining control of the courts In
the case of Peaple VS.. johnson, Cal. 4gg.
the Governor, SurVeyOr-Generala and Sec
retary of State were restrained from en-
toring into a contract for the construction
OF public highway at the States eX-
pense, on the ground that the Act authoriZ-
ing its construction was unconstitutional.
This was followed by NOugues VS.. Doug
Court refused a writ of mandamus
against the defendant Douglass, State
Controller, because his action had been
proper-not because the courts had no
power to control his acts. The doctrine
announced in these two cases was af-
frmed in Miller VS.. Dunn, State Con-
troller, Y Cal IS. where a writ of man
damus was issued by the lower court, and
its judgment was affirmed on appeal The
reports OF this State are full Of such cases:
and it will hardly be contended that the
acts of those officers were neither execu-
tive nor ministerial.
The same rule is in force in the State of
Wisconsin. In State eX rel. Lamb vs.
Cunningham, Secretary of State 53 \
W. Rep. 30, the defendant was enjoined
from publishing notices OF election OF
members of the Legislature, on the
ground that the Act redistricting the State
was unconstitutional.
In short, Secombe VS.. kittleson, s1tDru.
while it may be law in Minnesota, can
hardly be considered as authoritative
here.
>. 1t is contended by plaintiff that the
proposed amendment did not pass the
Senate by two-thirds vote of all the
members elected thereto, as required by
the provisions OF the Constitution in re-
lation to proposed amendments. For the
purpose of sustaining this proposition
the journal of the Senate was introduced
>
tries therein contained. 1t seems to be
conceded by both parties that the Jour
nails of the Legislature are conclusive as
to the action taken by the two houses
respectively and import ABSOLUTE verify.
Numerous cases from this and sister
States are cited on this point, but it is not
necessary TO insert them here.
An inspection of Senate journal of
March Il, 1898, shows that at a late hour,
and only few minutes before adjourn
ment, Senator Seymour offered a resolu-
ton. ''that the provisions of the Constitu-
ton be suspended, and Senate Constitu-
tional Amendment No. % be allowed 20
be introduced and read" The roll was
called and the resolution adopted-ayes
S3, noes l. Thereupon Senate Copstitu-
tional Amendment No. 23'' was entered at
length upon the journal, the roll was i'm
mediately called, and the proposed
amendment was declared adopted by a
vote of IS ayes to 7 noes, Senators Hart
and VOORHEES, being recorded as voting
ave. Immediately after the announce
nent OF the result the Senate adjourned.
on the Senate journal of Monday,
March Is, 1898, it appears that Senator