The record-union., 1893-10-14

I nor OF L0e exercise OF Lnat power Is uOt
excepted from the general provision with
reference to the passage of other laws.
We cannot afford, in a constitutional
Government, to ignore any OF the pro-
visions of the organic law. The Import
ance and necessity of each requirement
is conclusively established by the TACT
that the people have put 1t in their Consul
tuition, and whenever department Is
justified in overriding any provision OF
the Constitution, we begin to DRIFT away
from our form of government, in which
the prevailing idea and the distinguishing
feature is that the Constitution is omnlp-
otent and must be strictly obeyed.
If the Legislature had the power, under
the amendment of 1887, to approve the
charter by Joint resolution, from what
source, it may be asked. was that power
derived? 1t was certainly not derived
from any provision in the State Constltu-
ton. From the examination which
have been able to give the subject, | am
of the opinion that the question as to the
power of the Legislature TO approve the
new charter of the city in this manner in
which that approval was attempted ls
one which is open to grave doubt. and, In
view of the serious consequences which
might follow the attempted exercise OF
municipal powers under the charter, 1t is
question which ought to be submitted
to the courts for their determination. l
am aware that this precise question has
been determined once by the Supreme
Court against the view which l have sug-
gested; but it seems, from the amend
ment of 1889, that the Legislature deemed
it necessary to amend the section of the
Constitution in this respect. and this
amounts to legislative determination of
the necessity of such an amendment. The
decision upon the question TO which L
have referred was rendered by the Su-
preme Court during the year OF that
amendment. 1 think, therefore, that the
question ought to be resubmltted to and
re-examined by that court.
Another question as to the validity OF
the charter arises out Of the composition
of the board which framed it. From the
facts stated to me, it appears that on the
7th day of December, 1891, the City OF
| Sacramento caused to be elected board
of fifteen persons with view of having
them prepare and propose charter for
said city. Said proposed charter, as L
understand it, was properly signed In
duplicate, and copies thereof returned to
the proper officers; it was published in
two newspapers for the time prescribed
| by the amendments to the Constitution,
and was subsequently, submitted to the
| qualified electors of said city for their
ratification; it was ratified by majority
of the qualified electors voting at said
election, and, in the year 1893, said char
! ter was submitted to the Legislature for
its approval or rejection as whole, and,
/ by concurrent resolution, was approved
! by a majority vote of the mem bers elected
| to each house.
The board, however, which framed the
| charter, consisted of less than fifteen free
holders, and of less than fifteen persons
| who had been qualified electors OF said
city for the period of five years prior to
| their election.
The constitutional provision under
which saidiproposed charter was framed
prescribes, with exactitude and painstak-
| ing precision, how any of the enupler-
ated cities may frame charters for their
own government. The essential initia-
tory step is the election of fifteen free
holders who shall have been for at least
| five years qualified electors" of the city
proposing to frame the charter. The
| power to thus frame charter for its own
government is essentially legislative, and
is derived from that provision of the Con-
! stitution. Without such provision such
a power could not exist, for the power is
a new one, and is wholly carved out Of
! the general legislative power OF the State;
| it had it's origin with the section of the
! Constitution under consideration, and is
! one Of the evidences of the attempt made
| by the trainers of the new Constitution
of the State to localize the powers of local
government. The cities enumerated in
| that section of the Constitution may
frame and adopt charters for themselves,
subject, however, to the power of the
| Legislature to ratity or reject the same.
| Under the Constitution of l879 which
authorizes the approval to be made by
concurrent resolution, the Act of the
Legislature in ratifying or rejecting such
charter is not, in the true sense, legis-
| latiVe Act; for it is neither introduced
nor passed by the Legislature in the
manner required in cases of bills; nor is
it required to be subjected to the veto
! power Of the Governor.
The Act OF legislation is by the people;
| the approval or rejection may be made
| by the legislature by resolution. Under
| this provision of the constitution, if it is
valid, city may frame charter for Its
! own government, but it may only do so
in the manner prescribed. The power to
| frame such a charter, being derived
wholly from the Constitutional provision
under consideration, can only be exer-
! cised by observing strictly all the limit
ations as to manner, etc. If the city
might frame its charter by the election of
! less than fifteen freeholders, might it not
with equal logic, claim the right to frame
| it through the Intervention of a board
having but one freeholder, or even with
out any freeholder upon the board at all
And if the board, thus framing the char
| ter may consist of less than fifteen quail
! flied electors of the city, what reason can
be suggested why a charter framed by a
board consisting of one citizen only
would not be equally as valid?
In such case, where a new power is
conferred by the organic law, and where
the provision conferring the right con-
| tains specific directions as to the manner
| of its exercise, the mode prescribed must
| no ri VI % nf
! This proposition has been SO clearly
stated by the Supreme Court in the case
of the People VS.. Gum, So Cal. 23S-a case
| involving the precise question under con-
sideration, that it does not require any
considerable elaboration. In that case,
discussing the provisions under consider
alton, the court said:
"In this case the procedure was under
constitutional provision expressly de-
clared to be mandatory and prohibitory.
Under such provision the mode is the
measure of the power. The acts required
by the Constitution to be performed are
conditions precedent and necessary to the
validity of the legislation which had au-
thorized it, whether that legislation be by
the people of the municipality under
Article Al., or by the Senate and Assem-
bly, under Article w."
Further on, in the same decision, the
court said:
I'VE are not at liberty to say that any
CONSTITUTIONAL prerequisite to the valid
| ity of law, is of no practical service, or
to consider the policy of provision when
its language seems plain and positive.
The language of Judge
Cooley, in his work on Constitutional
Limitations, page IS. quoted and adopted
in State VS.. Rodgers, 10 New, 253. is di-
rectly in point, and shows that even in
| the absence of q clause making its pro-
vision prohibitory and mandatory, the
court will not hold the provisions of the
| Constitution to be directory or unessen-
] oil Int mill hor I,c1d hn+