The record-union., 1893-06-09

teuulng that other amendments to the
constitution had been passed, and the
Governor and the people acquiesced, and
were therefore bound by their action.
This is not good law, and ought not to be.
The decision in the case of the Oakland
FaVlng Company VS.. Hilton states that
the Constitution could not he lawfully
changed by the vote of every enc Of the
people except in the prescribed form. 1t
IS the duty of the court, if there were
only one litigant. to give him justice. The
ALABAMA supreme Court decided that the
Constitution could be amended only in
two ways-by the people who made it, or
IN the mode prescribed by it.
Under the rulings of our Supreme
Court, said he, no error, no matter of
how long standing, or how long adhered
to, can stand. The Supreme Court of
Iowa gives like decision; each case
must stand by itself In neither case
cited by Mr.. Morehouse has an attack been
made on the lie rality of an amendment
on accountof informally III its passage.
Such case as this has never been brought
| before the Supreme Court. The people
have not acquesced in this. In the case
OF one amendment where the Supreme
Court was affected, it naturally wanted it
right. and had special Act passed. In
the case of the People VS.. PendegaSt, the
supreme Court decided that the people
preferred new Inconvenience to the old
ones. That was the reason Tor making
the new Constitution. But admitting that
Article XN. could be amended by pro-
ceeding under Article XNIII., and all the
other requirements had been fulfilled.
this amendment had not been passed
legally. 1t only received vote of Is,
and the legal two-thirds needed was 27,
Mr.. Delmas claims the journal is the best
evidence, and the controlling element for
Judicial judgment.
/ Al.
his position"
He then recapitulated Senator Voor-
hels' statement and the Senate's action,
which left only n votes, including Senator
Harts Hart statementand protest, which
was referred to the Judiciary Committee,
which was composed OF the best legal
minds in the Senate and on whose iudg-
ment the Senate relied. Their report on
the 18th of March states that it is shown
that Senator Hart was at all times Op-
posed to the removal How then could
he vote for it? 1t is not a small point;
this Is case where form becomes sub
stance, detail becomes the essence Of the
matter. 1t must appear on the journal
that y voted aye, in order that the
amendment should be legal, but the SEN
ate unanimously found that it was not so.
They were willing to admit that Senator
hart voted no, but they refused to allow
him to change his vote. This report shows
in the journal that the resolution did not
receive y votes in the Senate.
He asserted that the two houses did not
concur in the adoption of the amendment.
They must do so, literally and actually,
word for word, to pass it legally, but they
did not.
This is not point of substantial COM
pllance, of justice between two Iitigants,
but of exact procedure, according to the
constitution. 1t must be identical in
both houses. 1t is admitted and proved
not to be the same. This is not an ordi-
nary resolution; this is a resolution to
change the Constitution, and must be ex-
act.
The Constitutions of 1919 and 1863 do
not contain the words ''of this State.D
which appear in the Constitution of 1879.
There must have been some reason for
this change. If not, why was it made
and why Is it there? Whether essential
or not, the omission of the words is
fatal error. The courts cannot afford to
open the door, for there will be no way
TO limit the omissions when it is once
opened. The Supreme Courts of various
States have so decided
In answer to the statement Of Mr..
Morehouse that there was no necessity
OF It's being enrolled or engrossed Mr..
johnson said that the rules Of the Senate
state that both laws and resolutions shall
be enrolled and engrossed. The rule in
one case has as much weight as in the
other.
He quoted from the railroad tax cases
IN lhe Federal reports and also from the
o. New hampshire reports, to the effect
that the Act itself was prima facie evil
dence, but the journals are the best evil
dence. They must show that both houses
concur; II not, the Act falls to the ground.
This thing OF shreds and patches. said
he, was not enrolled, not engrossed, not
passed by both houses.
The decision of the Supreme Court is
that the body of Il resolution need not be
entered IN the journal. But this is not
an inhibition, it does not forbid its being
entered. The Legislature has its choice
but whichever way it does do must gov
ern its action and that of the court. 1t
chooses its way and must abide by It's
method. suppose in one house the reso-
luton read san Jose, and in the other
Monterey, could the court take no notice?
Must II take the original as san Jose.
which IS not certified, not approved, not
authenticated by anyone. Suppose the
Senate resolution read Monterey and the
Assembly resolution read Los Angeles
and the original read San Jose, which
would be correctly passed? Suppose the
Senate resolution read Monterey and the
Assembly resolution read Milpitas and
the original was burned or DESTROYED.
would the court decide that San Jose was
the proper name in the amendment, An
amendment is not legislation; it needs
neither enrolment nor engrossment. the
certificate of the President nor the sigma
ture Of the Governor, except by the rules.
The journal is the best evidence there
fore. The question ought to be set at
rest, once and for all; the Constitution is
sacred.
lie then stated that Mr.. Hatfield de-
sired him to call attention to the fact
that the Assembly voted twice on the
resolution after it had been returned to
the Senate, as shown by the Senate Jour
nal, and was therefore not in the hands of
the Assembly.
Mr.. Delmas ask ed leave to answer some
new authorities introduced by Mr.. john
son. He spoke on several points and
claimed that the proper proceeding was
not against the Secretary of State. to re-
strain him from doing his duty. Neither
he nor the State Printer had any discre-
ton in promulgating on printing the pro-
posed amendment, whether properly
passed or not. 1t should be passed on bv
the people then, if not satisfactory, by a
mandamus proceeding. He thought the
Act of 1888 was sufficient without any
special Act.
The court took the case under advise
ment.
Fourth of July.
This evening the Executive Committee
appointed by Mayor Steinman to make