The record-union., 1893-11-13
LAWTERi HATFIELDiS BRIEF
In the Liyermore- Waite Capital Re-
movaI Case.
Some Extracts From It-Why the So
Called Constitutional Amend
ment is Invalid.


On Saturday L. T. Hatfield, counsel for
81. p. Livermore in the latter's case
against Secretary of State Waite-known
as the Capital removal case-filed his
brief in the office of the Clerk of the SUI
preme Court. The following extracts are
taken from the brief, showing one of the
grounds on which respondent depends.
After arguing the question of the right of
Livermore to maintain the suit, counsel
says:
Having shown capacity to sue we will
now take up the merits OF the case.
The position of plaintiff respondent is
that the action of the Legislature in this
instance did not legally or conslitu-
tionally affect the status OF affairs with
respect to the seat of government OF this
State. But that by reason OF the SEEM
ing compliance with the requirements of
the Constitution and legislative practices
as viewed from the standpoint OF the rule,
that body having power to do an act is
presumed to have performed its duty IN
regular and valid manner, and that eX-
cept for the knowledge of the court"
which can only be revoked in an action
regularly pending before It, The So
called 'fSenate Constitutional Amend
ment No. 23'' is considered valid by the
Secretary of State, and nothing but the
restraint of the court will prevent him
from incurring the expense OF submitting
it TO the people for the popular vote and
thereby cause expense without authority
of law.
This being specially public question,
involving wholly the public and private
official acts of the Legislature and other
officers of the State, the court is given
the widest possible range of judicial
notice.
In this State there are four kinds of
evidence. Section 1877, G.. &. P, OF which
the most comprehensive is 'the know
ledge of the court" By Section lo75 G..
G. p, the court is authorized TO take
cogniZance as, of course. of many dlt1er-
ent matters, and especially OF ''the public
and private official acts of the legislative,
executive and judicial departments OF
this State and the United States"
Therefore this Court, of its own knowl-
edge, is aware that Section l of Article
Xxx. of the present Constitution says:
1.-The city of Sacramento is hereby de-
clared to be the seat Of government of
this State. and shall so remain until
SO changed by law; but no law changing
the seat of government shall be valid or
binding unless the same be approved and
ratified by majority of the qualified
electors Of the State voting therefor at a
general State election under such regula-
tions and provisions as the Legislature,
by a two-thirds vote of each house. may
provide submitting the question OF
change to the people,"
And the Court knows that no law of
any character has ever, at any time, been
enacted as above required, or in any
manner whatever. Therefore the first
charges of the complaint are sustained.
From reading the so-called proposed
amendment, without reference to the
knowledge of the court, the impression
is created that the requirements of Sec
tion l, Article Xxx. have been complied
with, and that this is simply declara
ton of fact to round and make the Con-
stitution symmetrical. But this, it is
known, is not true, and this knowledge
brings us really first to the consideration
OF the alleged amendment as IN its fin
ished form, and leaving the consideration
OF the Illegal course of proposing it to
the last.
In this place we will state preliminarily
that, Notwithstanding the suggestions of
appellants counsel to the contrary, the
respondent does not at any time or in any
place rely upon any evidence or infOrma-
ton not contained in the legally author
lied and constituted records of the pub
lie and official acts of the legislative and
other officers of the State.
The proposed amendment is set out
also at page 1893, Journal of the Senate,
thirtieth session. In the preamble, first
paragraph, we find the following state
ment:
Submitting to the people of the State
of California an amendment to the Con-
stitution, amending Section l of Article
Xxx. of the Constitution of the State of
California, relative to changing the seat
Of government from the city Of Sacra-
mento to the city of San jose"
Note the language: Relative to
changing the seat OF government from
the city of Sacramento to the city of San
jose"
There is no provision of the Constitu-
ton, or of any law OF this State or any
rule of the Legislature, that provides for
title or preamble to resolutions of any
kind, nor is there any provision by
which any statement OF preliminary
character not embraced IN the text OF any
bill or resolution can by any means
be treated as a part of it and
have any binding effect. But, in the case
at bar, unless we treat the preamble or
title as part of the proposed amend
ment, it is simply impossible to deter
mine what it is all about. Inlthe body of
the section proposed as an amendment
the word Sacramento does not occur in
any connection whatever. In the
original. as introduced in the Senate, we
find simply the bald statement:
1.-THE city of San Jose is hereby de-
clared to be the seat of government of
changed by law, but no law changing the
seat of government shall be valid or
binding unless the same be approved and
ratified by a majority Of the qualified
electors of the State voting therefor, at a
general State election, under such regu-
lations and provisions as the Legislature,
by a two-thirds vote of each house, may
provide, submitting the question of
change to the people; provided, that the
State shall receive donation OF site of
not less ten acres and $1.0G0,000 before
such removal shall be had. The Gov
ernor the Secretary of State and the At
torney-General are hereby authorized TO
approve said site, and upon the approval
thereof and the payment of 81, 100000 into
the State Treasury, the Legislature shall
provide for the erection of the necessary
building and the removal of the seat of
government"
Note the language as to change down
to the word provided" it is identical