The record-union., 1894-03-30

part of the Constitution. By the terms
OF the proposed amendment, however,
the operative effect is limited upon the
donation to the State of not less than ten
acres OF land and 81 100000, and approval
Oy Inc Governor, the Secretary OF State
ana Attorney General, of the site so do
mated
The section of the Constitution which
Is TO be superseded by the proposed
amendment fixes the seat of government
at Sacramento, and so long as that section
remains part of the Constitution the
seat OF government will remain at Sacra-
mento until 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 constitutional declaration by
which the seat of government would be
located in any part of the State.
"Ihe effect of the amendment, if ap-
proved by the people, would be that the
seat OF government viii, at some future
time, be at San Jose, provided donation
OF 81 ,UO.0OO and ten acres of land shall be
made. Until the donation of money and
land shall have been made, aud the site
donated and approved by the designated
officers, the removal of the seat of gov
ernment cannot take place. The declara-
ton i'll the first sentence, that the city of
San Jose is hereby declared to be the seat OF
government of this State. would be inef-
iectual, for the reason that the amendment
would fail to become an operative part of
the Constitution. Removal, for which
the Legislature is directed to provide in
the last clause OF the proposed amend
ment, is removal from Sacramento to San
Jose, as suggested in one of the briefs
filed herein.
by 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 10 removal except III accord
ance with the terms OF the proviso upon
which it is conditioned, aud which limits
the removal from Sacramento to san
Jose TO those terms"
The court holds that the amendment
proposed is neither declaration by the
people OF principle nor OF fact. Nor is
IL "a limitation or rule prescribed tor the
guidance Of either OF the Gepartments to
which the sovereignty Of the people has
been inlrusted. Ii adopted it would have
merely the effect 10 present the option to
anyone SO disposed of making Il donation
OF land and money for the purpose Of
having the seat OF government at san
Jose,
SHch proposition is legislative in char
acter, rather than constitutional, and being
conditional in its terms, would be iu-
elective in accom- plishing change of the
seat OF government from that already
liked by the Constitution.
"As tile proposed amendment is, there
fore, only proposition lor the people 10
submit to some other individuals or body
TO determine whether there shall be a
change OF the seat of government, we
hold that it is not such an amendment as
the Legislature has been authorized to
submit TO their votes
II the people at any time desire re-
moval OF the seat OF government from
Sacramento the result can oe readily eff
fected, either by a law passed in accord
ance with the existing provisions of the
Constitution. or by proposal on the part
OF the Legislature for such amendment
10 the Constitution as will afford them
opportunity to give immediate effect to
their desire by direct vote upon the
question"
Judgment and order of court below are
affirmed. Harrison, j. Chief Justice
Beatty and Justices Fitzgerald. DeHaven
ana Garoutte concur.
CoNCURRING OPINION.
a concurrent opinion was written by
Justice Paterson and is concurred in by
Justice Mcfarland. This opinion says:
I'VE agree with the majority in hold
ing that the proposed amendment is in
effective on account of the conditions con-
tanned therein, but there is another
ground upon which we also desire to
place our conclusion.
The language of Section l, Article
NX., of the Constitution is plain; no law
changing the seat of government shall
be valid or binding until said law has
been ratified by a majority of the quail
lhed electors OF the State, voting there
for at a general election. and that law
must firSt receive the sanction of two
thirds or the memb bers of each house
and have been approved by the Governor.
NO law has been passed by the Legis-
lature proposing to change the seat of
government from Sacramento to San
Jose, or providing under what regula-
tions or provisions the change in the seat
OF government should be voted upon.
"Ihe proposed amendment was not put
in the form Of a bill; it was neither
printed nor read on three several days,
nor was the measure declared to be a case
OF urgency; it was not considered by the
Governor; therefore 1t is not law"