The herald., 1894-03-30


By this section the constitution pro-
vides that the seat of government may
be changed in the manner therein pre-.
scribed, butthe mode of affecting such
change is not limited to the one thus
provided. The legislature might have
provided for changing the seat OF gov
ernment to San Jose, by passing a law
under the provisions OF this section, but,
instead Of attempting this course, it has
seen fit to seek to accomplish the same
result through an amendment to the
constitution.
THE proposed amendment" says the
court, sis, however ineffective in &C
complishing the object expressed in the
bill OF the proposition. Article Is,
section l, OF the constitution, provides
that IL proposed amendment is ratified
and approved by the people, it shall be-
come part of the constitution. By the
terms of the proposed amendment, how
ever, the operative effect is limited up
on the donation to the state OF not less
than 10 acres IN land and 81, 600, 900, and
the approval by the governor, the secre-
tary OF state and the attorney-gen
of the site go donated. The section of
the constitution which is to be super
seded by the proposed amendment, fixes
the seat of government at Sacramento
and 80 long as that section remains
part OF the constitution the seat of gov
eminent will remain at Sacramento un-
til changed by law.
But, if the proposed amendment
should be adopted by the people it
would obliterate this section from the
constitution without leaving any con-
stitutional declaration by which the
seat of government would be located in
any part OF the etate.
''The effect of the amendment, If ap-
proved by the people, would be that the
seat of government will at some future
time be at San Jose, provided dona-
tion oil S1,000,000 and 10 acres of land
shall be made. Until the donation OF
money and land ehall have been made
and the site donated approved by the
designated officers, the removal of the
seat of government cannot take place,
and the declaration in the first sentence,
that the city of San Jose is hereby de-
clared to be the seat of government of
this state would be Intellectual, for the
reason that the amendment would fail
to become an operative part of the con-
stitution. The removal for which the
legislature is directed to provide in the
last CLAUSE of the proposed amendment
is the removal from Sacramento to San
Jose, as is suggested in one of the brieis
filed herein.
"By the existing constitution the seat
OF government is fixed at Sacramento
and ia to remain there until changed,
and by the terms OF the proposed amend
ment there can be no removal except in
accordance with the terms of the pro-
visn npon which i is conditioned and
which limits the removal from Sacra-
mento to San Jose to those terms"
The court holds that the amendment
proposed is neither declaration by the
people of principle or OF a fact, nor is
it limitation Of rule prescribed for the
guidance of either oil the districts to
been intrusted. II adopted it would
have locally the effect to present the
option to any one 50 disposed of making
donation of land and money for the
purpose of having the seat of govern
ment at San Jose. Such proposition
is legislative in character, rather than
constitutional and, being conditional in
its terms, would be ineffective in accom-
plishing a change of the seat of govern
ment from that already fixed by the
constitution.
"As the proposed amendment is,
therefore, only a proposition for the
people to submit to some other individ-
uals or body, to determine whether
there shall be AZ change OF the seat OF
government, we hold that it is not such
an amendment es the legislature has
been authorized to submit to the votes
'If the people ehsll at any time de-
sire a removal OF the seat of government
from Sacramento, this result can be
readily effected either by law passed
in accordance with the existing provi-
sions OF the constitution or by pro-
posal on the part OF the Legislature for
such an amendment to tine constitution
as will afford them on opportunity to
give immediate effect to their desire by
a direct vote upon the question.
"The judgment and order of the
court below are affirmed.
HARRISON, j."
Chief Justice Beatty, Justices Fitz-
gerald, De Haven and Garoutte, con-
cured.
A concurrent opinion was written by
Justice Paterson and concurred in by
Justice Mcfarland.
The opinion says 1--WE agree with
the majority in holding that the pro-
posed amendment is ineffective on &C.
count of the conditions contained there
in, but there is another ground upon
which we also desire to place our con-
clusion. The language OF section !, ar
ticle XX, of the constitution is plain.
No law changing the seat OF govern
ment shall be valid or binding until
said law has been ratified by majority
Of the qualified voters OF the state, vot-
ing therefor at general election, and
that law must fret receive the sanction
of two-thirds of the members of each
house and have been approved by the
governor.
mo law has been passed by the leg
islature proposing to change the seat Of
government from Sacramento to San
Jose, or providing under what regula-
tions or provisions the question OF q
change OF the e0at of government should
be voted upon. 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 governor. Therefore, it is not
law"
SACRAMENTO, March 29.-The decision
OF the supreme court in declaring the
action of the last Legislature in the mat
ter of the removal of the state capital TO
San Jose to be imperative, caused no
stir here whatever and very lite COM
ment. Nobody has been in doubt from
the first as to what the result would be.