The record-union., 1893-10-14

to the exercise of one of the highest and
most important powers of sovereignty by
tho people. The question is as to the
power of the people to frame an organic
law, and this power. recently conferred,
is limited by the Constitution of the State.
The language of the Limitation upon
the right to exercise the power is ex-
pressed in no uncertain terms; and no
question of public policy or public con-
venience ought to be allowed to control
or modify it.
There was undoubtedly q reason which
induced the Legislature which approved
and the people who ratified the amend
ment to require that the electors, before
they should be permitted to vote for or
against a charter framed by the city,
should have it proposed by fifteen free
holders who had been qualified electors
of the city for at least five years before
their election. Undoubtedly, the reason
which actuated the trainers of that pro-
vision of the Constitution in making this
requirement must be found in the fact
that it was deemed wise, before the sub
mission of such proposed charter to
popular vote, to have it framed by fifteen
men whose interests were evidenced by
ownership of real estate within the mu-
nlcipality and by citizenship therein for
the time prescribed by the Constitution.
The provision operates as a limitation
upon this power of the people, and the
right of the people, in my Judgment, to
vote upon the question Of the adoption OF
new charter by the city necessarily de-
pends upon the condition named In the
Constitution. 1t was certainly never in
tended to permit the people, in their
primary capacity, to exercise this extra
ordinary legislative power until the char
ter had been carefully prepared by the
fifteen freeholders whose interests In the
city's welfare were thus evidenced, and
until it was properly submitted to them
in the manner prescribed by the Consti-
tuition.
/ have not had sufficient time and op-
portunity to enable me to critically ex-
anime the different provisions of the
charter SO as to determine, in my own
mind, whether or not any considerable
number of them are violative OF the Con-
stitution. / have examined, however.
Article ", which attempts to create
judicial department.. The object and
effect of that article, if it is valid, is TO
abolish the Police Court in this city, and
to substitute for the Police Judge City
Justice of the Peace, and to confer upon
said City Justice of the Peace jurisdiction
of all otfenses against the ordinances of
the municipality. This article is cer-
tainly in conflict with Sections l and IL
of Article VI. of the Constitution OF the
State. Section l of Article VI. author
ICES the Legislature, acting in its purely
legislative capacity, TO establish inferior
courts in incorporated cities or towns, or
cities and counties, and Section Ii OF the
same article confers upon the Legislature
the exclusive power to fix, by law, the
jurisdiction OF such inferior courts.
Section of Article XI. of the Consti-
tuition authorizing the adoption of new
charter, does not purport to confer the
power to alter or change the inferior
courts, or to provide for their jurisdic-
ton, by popular vote upon proposed
charter approved by resolution OF the
Senate and Assembly. Undoubtedly, in
ferior courts in incorporated cities must
be created by Act OF the Legislature, and
their jurisdiction must be fixed by law
passed in the manner required by Sec
ton 10 of Article ". Of the Constitution.
The proposition is not open to debate,
and was determined by the Supreme
Court in the case OF the People VS.. .Ioal,
50 CAL 333.
1t is question of considerable doubt as
to whether, in charter framed in the
manner required by Section of Article
Il. of the Constitution, you can separate
the entire article relating to the judicial
department from the balance OF the enact
ment, throwing the separated part aside
as being wholly void, and at the same
time sustain the validity of the balance of
the charter; for it may be true that large
proportion of the majority voting in IA
vor of it's adoption cast their ballots that
way, because 1t did contain the article re-
lating to. inferior courts and their juris-
diction. Whether or not a charter, thus
deriving its vitality from popular vote,
may be held to be valid in part and in
valid as to the remainder, is certainly an
foh l- for
an early and, if possible, an immediate
determination of the courts. 1t is cer-
tainly true that the people cast their
ballots for and against said charter in its
entirety; and it is certainly also true that
the article, to which | have called par
ticular attention, must be held to be re-
pugnant to the Constitution and void, so
that the instrument, as presented to the
people for their sutfrages, cannot be sus-
tanned as whole.
If the facts are as they have been pre-
sented to me it must be conceded that in
the adoption of the charter in it's present
form the Constitution has been violated
in several material respects; and its va
lidity, therefore, must be so doubtful in
the minds of all as that it will inevitably
become the subject of contest in the
courts. The question is one upon which
different opinions may be, and are, enter
tanned, and, in view of that fact, and of
the consequences which might follow an
attempt to exercise municipal power un-
der it. if it should eventually be held to
be invalid, it is quite apparent to me that
it would be wise on the part of your hon.
orable body to institute some proceed
ing for the purpose of testing its validity,
if possible. in advance Of the assumption
of authority by the officers now about to
be elected under it's provisions. Such g.
proceeding can certainly result in no
harm, and may further the highest in
terests of the city.
Very respectfully yours,
A. L. HART.
Dated October II, 1893.