The record-union., 1893-03-18
THAT CONSTITUTIONAL AMENDMENT:
Lawyer {. W. MasIin Gives His 0pin-
ion Regarding 1t.
He Shows Conclusively That It Does
Not Amend the Article Rotating
to Capital Removal.

EDS. RECORD UNION: Knowing my
regard for Sacramento, several gentle
men did me the honor TO request my
views, for publication, upon the legality
of the resolution intended TO effect the
removal of the Capital. My opinion is
hastily expressed, but l think the con-
illusions are sound.
The question whether the resolution of
the two houses of the Legislature relat-
ing to the removal OF the State Capital can
effect its purpose seems, to me, easy of
solution. A Constitution is as much a
restriction upon itself as upon any de-
partnent of the Government. In other
words, the Constitution can only act as
the Constitution itself prescribes. This
is too plain to need any argument.
Section l, Article M, provides that
''the city of Sacramento is hereby de-
clared TO be the seat of government, and
shall so remain until changed by tar;
but no law changing the seat OF govern
ment shall be valid or binding unless the
same be approved and ratified by ma
jority of the qualified electors of the State
voting at general State election, under
such regulations and provisions as the
Legislature, by a two-thirds vote OF each
question of change to the people"
Now what does the section affirma-
lively say must be done TO remove the
Capital? First-There must be a law
passed by the Legislature and approved
by the Governor. SecOnd-ro make the
law valid it must be approved by the
people. Third-The people can only vote
thereupon under rules and regulations
prescribed by The Legislature, and | take
1t such rules and regulations must be
prescribed by tuU. Any other mode OF
changing the Capital is invalid and I'M
constitutional.
Now the submission of an amendment
10 the above section intending thereby to
change the Capital by other means than
the section provides is an intraction of
the Constitution. 1t is doing indirectly
what the Constitution says shall not be
done directly. The resolution and the
submission are each invalid from their
inception, and no ratification by the peo-
pie can cure the defect. The section pre-
cisely says that the Capital can be
changed only in one way, yet the Legis-
lature proposes to change it in another
mode. 1t says by tar, and the Legisla-
ture says by amendment" which is Just
as unconstitutional as any mode other
than by LdtC. There is no magic in the
words amending the Constitution"
which gives a sanctity to the attempt to
amend when such attempt is not made in
the mode pointed out by the Constitu-
ton. The people. except by resolution,
cannot change or alter Constitution, eX-
cept III the mode prescribed in the Con-
stItution.
At the risk of repeating myself l put
the question in another form. 1t is de-
sired, for instance, to change the Capital.
a committee reports that the Constitu-
ton requires law passed by the two
houses and signed by the Governor and
submitted by law passed by twO-thirds
vote Of each house. The two houses then
say: mo, we will not pursue that plan;
we will adopt another plan" Is it not
apparent that the adoption of such other
plan is unconstitutional and therefore in
valid, and that the vote of the people APP
proving of the plan cannot cure the in
validity? | admit that Section l might
be changed by amendment, but not SO as
to change the substantive provision, to
wit, the change OF the Capital.
But, for argument sake, suppose the
resolution is constitutionally expressed
and adopted, can it be effective even If
adopted? l think not. Section l of Arti-
Gle XVIII, relating to amendment of the
Constitution, provides that the Legis-
lature shall submit such amendment to
the people in such manner, and at such
time and after such publication, as may
be deemed expedient." The term Legis-
lature here used must be used in the
sense used in other parts of the Constitu-
ton, as meaning the law-making power,
to wit, the Senate, Assembly and Gov
ernor.
For instance, the Constitution says:
''The Legislature has power to provide
for the taking of dispositions" 1.-The
Legislature shall establish a system OF
county government" No lawyer would
contend that the two houses, which the
Constitution calls the Legislature, have
the power, without the concurrence of
the Governor, by a simple resolution, to
perform these two acts. The mere state
ment of the case is sufficient to close ar
gument.
The word Legislature Seans the law
making power. No law has been passed
submitting the resolution. No provision
has been made for its publication. No
time provided for the election. The
Governor has no power to make the sub
mission.
There was law passed in 1883 provid-
ing for submission of constitutional
amendments, general in character, it is
true. but intended to cover the cases Ol
amendments proposed at that session.
! That law is JNllctuS oUiciO. 1t is clear that
Section l of Article XVIII. contem-
plated that the Legislature which pro-
posed the amendment must itself-aud
not another ACKNOWLEDGEMENTS by law
for its submission.
The hasty action OF the Legislature
! shows the unwisdom OF changing the old
Constitution, which required the submis-
sion of amendments by one Legislature
to the succeeding Legislature for APP
proval. And this gives me an oppor-
tunlty to YentIlate my views heretofore
expressed, in a social body which dis
cusses such questions, in reference to the
education of our common school
scholars in the fundamental doctrines
and principles which underlie the struc-
ture of free government.
L contend that Backstone's Com
mentaries should form part of the study
of first grade pupils. Better dispense
with fourth part of the studies in that