The record-union., 1893-06-23

and he shall designate them bv numbers in
tne order IN which they have been proposed.
section =. Each amendment shall De voted
upon separately from the others, in the man.
ner anu form designated by the Governor,
which manner and form shall be printed with
the amendment or amendments, and for the
same length OF time that they shall be adver
tlsed, as provided in Section l Of this Act.
Inc ba.4Ots used at sucn election shall con-
tain the words For the amendment" or the
words, Against the amendment" written or
printed thereon.
The plaintiff objects, first, that the said
statute is unconstitutional, in that the
Legislature has therein attempted to del
egate to the Governor the duty imposed
upon 1t of determining the manner and
form OF submitting the proposed amend
ment to the vote of the people; second,
that that statute was modified by the
Legislature of 1891 and that OF 1888 by the
amendment of the Political Code in rela-
ton to elections.
1t seems to me plain that the intention
OF the Legislature, as manifested in the
Act referred to, is to delegate to the Gov
ernor the duties imposed upon it by the
| Constitution. In the second section it is
expressly provided that Each amend
ment shall be voted upon in
| the manner and form designated by the
| Governor; and the first section, while it
gives some general directions as TO the
puDllcatlon OF the proposed amendments
and including them in the Governors
proclamation, leaves much to his discre-
uon that the Constitution imposed upon
the Legislature. Can this be done?
The general rule is laid down in Cooley
on constitutional Limitations, page III,
that any body or person to whom author
lty TO perform certain duties is delegated
by the Constitution may not delegate the
authority TO another. DetegdEttS non DO-
test detegdre.
The question has been before our Su-
preme Court several times, and always
with the same result. In the case of Peo-
pie VS.. Parks, IS Cal. 625, the Supreme
Court, in constituting the Drainage Act of
1850, under which the Legislature at
/ tempted to create board composed of the
Governor and two other executive Of
hcerS, and to delegate to them Legislative
duties, held the Act unconstitutional.
Again, in the case Of DOugherty vs.. Aus
tin, 81 Cal. 6O6, the Supreme Court in
constituting an amendment to the County
! Government Act, authorizing the Board
Of Supervisors Of Marin County to en-
ploy and pay a deputy for the County
/ Clerk, held II unconstitutional, i'll that it
was an attempt by the Legislature to del
egate to the Board OF Supervisors the
power imposed upon it the Legislature).
| 70 the same effect is the decision in the
case of People VS.. johnson, % Cal. 473.
am unable to see any difference upon
principle between these cases and the
one under consider consideration. The
defendant urges, however, that this stat
ute OF 1883 has been acquiesced in since
its enactment and cites many authorities
in support of his proposition that that
which has been accepted and acted upon
for years is sufficient and should not be
disturbed. The case most nearly in point
cited by him Is the constitutional prohib-
ltory amendment case, reported in u
Kansas, 100. 1t was there urged that the
amendment had not been adopted in the
manner provided by the Constitution,
and Mr.. Justice Brewer. in commenting
upon the point, makes use of the express
sion:
That which for years has been accepted ana
acted upon may now justly lie considered as
sufficient Now the present method
OF submission of amendments TO the Constitu-
tiOn has been in use tor many years. Several
amen dmentS thus submitted have been
adopted and recognized and acted upon as
parts OF the Constitution.
He then concludes that this ac-
Quiescence is sufficient recognition that
the amendments were regularly adopted
and that it would be unwise to unsettle
all legislation and the rights based
| thereon by holding the procedure of
adoption to be insufficient. Much of the
cogency of this reasoning is lost when
we consider that the amendment to the
Constitution which the learned judge
] udu uDutI COnSlUbIdIlOH D3O alreaQV
been submitted to the people and had
been by them ratified. There may be
good reasons for sustaining amendments
which have already become part of the
Constitution, and under which property
rights have vested, or the machinery of
government been set in motion; but none
Of these matters can be eflectually urged
when the attack is made upon the pro
posed amendment before it is submitted
to the people, or any vested rights there
under have attached.
There has been no uniform practice in
this State as TO the submission Of proposed
amendments to the people Since the en-
actment OF the Act OF 1888, some of the
proposed amendments to the Constitu-
ton have been submitted under it's pro-
visions, others have been submitted under
special Act of the Legislature; and in NV
judgment, the latter course Is the one
contemplated by the Constitution. by
Section l of Article XVIII. it is made the
duty of the Legislature to submit such
proposed amendments to the people in
such manner and at such time, and after
such publication, as may be deemed expe-
dient. 1t may be that a general statute
might be enacted by which the Legisla-
ture should provide for the submission of
proposed amendments to the people,
which would not be liable to this objec-
ton; still | think it evidently was
the intention of the trainers of the
| Constitution, and of the people who
adopted and ratified it, to leave the mat
ters OF notice, time and manner to the
discretion of the Legislature proposing
the amendment, to be fixed as the ext
gency of each individual amendment
might demand.
am of the opinion that the Act of 1888
was unconstitutional; and If no other
law has been passed providing for the
submission of Senate Constitutional
Amendment No. 23'' to the vote of the
people, it may not be lawfully sub
mitted. (Hatch VS.. Stoneman, SupTa.)
The conclusions above reached render
it unnecessary to decide whether or not
the statute of 1888 above referred TO has
been repealed or modified by subsequent
legislation, and that point will not be
| considered. For the purposes of this case
it is sufficient to say that if we concede
that the present election law, as found in
the Political Code, has sufficient pro-
vision for the submission of all proposed
constitutional amendments to a vote Of the
people, still ''Senate Constitutional
Amendment No. 23n is Intellectual. in
that it is not q TAR within the meaning of
Section l Of Article X X. Of the Constitu-
ton of 1879.
/ therefore conclude that plaintiff is
entitled to judgment; but as it appears
that the proposed amendment. to wit
Senate Constitutional Amendment No.
23," has already been published with the
statutes of 1898, with the required mar
ginal notes, and has been regularly in
dexed, that part of the original restrain
ing order entered herein need not be
continued IN force; but so much of the
order as restrains the defendant from
! certifying said Senate Constitutional
Amendment No. 23'' to the County Clerk
OF each county of the State, under the
provisions OF Section 1895 of the Political
Code, should be made perpetual.
Let findings and Judgment be prepared
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