The morning call., 1894-03-30

but lHc Iilhu0 Oh eH6clliiR SUCH change Is
not limited to the one thus provided. The
Legislature might have provided for
changing the seat of government to San
Jose, by passing law under the provisions
of this section; but. instead of attempting
this course. ii has seen ft to seek 10 ac-
compllSh the same result through an
amendment to the constitution
The proposed amendment" saws the
court, sis. however. ineffective in accom-
plshing the object expressed n the bill Of
the proposition. Article XVIII section
l, OF the constitution. provides that if
proposed amendment is ratified and ap-
proved by the people, it shall become
part Of the constitution. BY the terms of
the proposed amendment, however, the
operative effect il limited upon the dona-
ton to the State of not less than ten acres
IN land and S1.000.000, and the approval by
the Governor. the Secretary OF State and
the AttorDey-General of the site so dona-
ted. The section of the constitution. which
is TO be superseded by the proposed amend
ment, fixes the seat of government al Sac
ramento, and so long as that section re-
mains part of the constitution the seat
OF government will remain at Sacramento
until changed by law.
But If the proposed amendment should
be adopted by the people it would obIite-
rate this section from the constitution
without leaving any constitutional decla-
ration by which the seat of government
would be located in any part of the State.
The effect Of the amendment, il ap-
proved by the people. would be that the
seat of government will at some future
time be at San Jose. provided donation
OF 81, Goo 600 and ten acres of land shall be
made. Until the donation of money and
land shall have been made and the site
donated approved by the designated Off
GERS the removal of the seat of govern
rnent cannon take place, and the declars-
tion in the first sentence that the city of
San Jose is hereby declared to be the seat
of government of this State would be in
effectual. for the reason that the amend
ment would fail to become an operative
part of the constitut on. The removal for
which the Legislature is directed to pro-
vide in the last clause of the proposed
amendment is the removal from Saera-
mento to San Jose. and not a subsequent
removal from Sau Jose, as is suggested in
one of the briefs filed herein.
SPY the existing constitution the seat of
government is fixed at Sacramento, and is
10 remain there until changed, and by the
terms Of the proposed amendment there
can be no removal except in accordance
with the teFms OF the provlsO upon which
it is conditioned and which limits the re-
moval from Sacramento TO San Jose 20
those TERMS"
The court holds that the amendment
proposed is neither a declaration by the
people or a principle or of a fact, nor is il
a limitation Or rule prescribed for the
guidance of either of the departments TO
which the sovereignty of the people has
been intrusted. II adopted ii would have
merely the effect to present the option 10
any one sc disposed of making donation
of land and money for the purpose of hav-
ing the seat of government al San Jose.
Such a proposition is legislative iu char
acter. rather than constitutional. and, be-
ing conditional in its terms, would be
Ineffective in accom- pliShng a change of
the seat of government from that already
fixed by the constitution.
''As the proposed amendment is, there
fore. only proposition for the people to
submit f some other individuals or body
to determine whether there shall be a
change of the seat of government, we hold
that il is not such an amendment as the
Legislature has been authorized to submit
to their votes.
''If the people shall at any time desire
removal of the seat of government from
Sacramento. this result can be readily
effected either by law passed in accord
aDce with the existing provisions of the
constitution. or by proposal on the part
of the Legislature for such an amendment
to the constitution as Will afford them an
opportunity to give immediate effect to
their desire by direct vote upon the
question.
1.-The judgment and order of the court
below are affirmed. HARRISON, j."
Chief Justice Beatty, Justices Fitz-
gerald, De Haven and Garoutte coucurred.
a concurrent opinion was written by
justice Paterson and concurred in by JUS
tice Mcfarland.
This passes upon the main contentious
put forward by the respondent in the
case. 1t was contended that the judgment
should be affirmed because the proposed
amendment was never finally disposed of
nv M a l.l fEo holo hax
been laid on the table; that ii was not
passed in the Senate by two-thirds vote
of all the members thereof, the record
showing that Senator Harts vote ought to
have been recorded in he negative; that
the House did not act upon the measure
that was passed by the Senate that the
proposed amend meut is on its face void,
because in contraventiOn of public morals.
being an offer oD the part Of the Safe to
abandon It's property at Sacramento and
change its government to San Jose for
briDe CT consideration of 81, ,000, 600 and
ten acres of land and in any event il is
void for uncertainty, there being nothing
TO show who is to pay the money or
donate the land, or how long the people
will have to wait for tender of the prop
erty - how many propositions may be
made and expected before il can be known
where the seat Of government is to be per-
maDently located, and that no one can
be in the event of failure of the Cover
nor, Attorney General and Secretary of
State, or a majority of them, to act upon
any proposition for a site that might be
offered.
The opinion says: I'VE agree with the
majority in holding that the proposed
amendment is Ineffective on account of the
conditions contained therein, but there is
another ground upon which we also desire
to place our conclu-ion. The language of
section l, article Xxx Of the constitution is
plain. No law changing the seat of gov
ernment shall be valid or binding until
said law has been ratified By a majority OF
the qualified electors OF the State, voting
therefor at general election, and that
law must first receive the sanction of two
thirds of the mem bers of each House and
have heen approved by the Governor.
No law has been passed by the Legis-
laiure proposing to change the seat of
government from Sacramento to San Jose.
or providing under what regulations or
provisions the question of change of the
seat of government should be voted upon.
The proposed amen dment was not put in
the form of bill. 1t was neither printed
nor read on three several days, nor was
the measure declared to constitute a case
of urgency. 1t was not considered by the
10 lar