The record-union., 1895-05-27

spect was afterwards verified by the de-
cision of the Supreme Court.
The transcript on appeal in this case
was filed in the Supreme Court on the
Oath of May and the briefs Of the attor-
neys were filed in due time soon there
after. In the meantime. in the month of
April, q suit was commenced in the Su-
perior Court of Sacramento County by Il.
L. Llvermore by his attorney, l.. L. Hat
field, entitled "Horatio P. Livermore VS..
L. q. Waite. Secretary of State of Cali
tornia."
The complaint in this case averred that
the removal resolution did not pass the
Senate by two-thirds vote, and that, in
fact, the resolution did not pass both
houses at all. This was, OF course, denied
by the answer filed by the San Jose at
torneys in behalf OF the defendant.
There were other averments of fact set
forth in this complaint more or loss i'm
material, one of them being in the follow
ing words: THAT for more than fifteen
years last past there has been, and now
is, located and in existence upon the
lands owned and controlled by the State
of California for that purpose, in said
City of Sacramento, good and sufficient
building called and designated State
Capitol in which is situated all the
archives, records. furniture and other
property and material incident to and re-
lOE lu6 puUllC Ill COuHoO-
ton with a seat of government. That
said State Capitol building is incapable of
removal from its present location" An
other in the following words, That on
said 1lth day of March, 1S93 the City of
San Jose was not and is not now the seat
of government of the State of Califor-
n1a." Another in the following words,
"But it the resolution) falsely states that
the City of San Jose is the seat OF govern
mont of the State"
Upon a careful examination of the an
swer of the San Jose attorneys l cannot
find that either of these allegations were
denied.
The case, however. came to trial before
Judge Grant of Yolo County on such
issues OF fact as were made, as we'll as
upon the questions of law involved. The
case was tried on the 9th of June, 1S93 on
which occasion l.. T.. Hatfield and Grove
L. Johnson appeared as attorneys for
plaintiff Livermore, and w. ii. ii.
Hart, Attorney General, II. V. More
house and d. NJ. Delmas for defendant
Waite.
Judge Grants findings were to the effect
that the resolution passed the Legislature
by a two-thirds majority of each house;
but upon the law of the case he found:
THAT there never was at any time en-
acted any law whatever providing for the
removal of the seat of Government Of this
State from the city Of Sacramento to tho
city of San Jose. or to any other place."
and, also, "That there never was at any
time enacted any law providing for sub
mitting to the people of this State for the
popular vote the said alleged Senate Con-
stitutional Amendment No. 23."
A judgment in favor of the plaintiff fol-
lowed, from which the defendant ap-
pealed to the Supreme Court.
Both of these cases came on regularly
for argument in the Supreme Court on
the 10Th of November, 1898, the court hav-
ing determined to hear the two cases to-
gether. Briefs were filed in the Rideout
case, one by General Hart and one by
John II. McKune and John w. Arm
strong, and in the Livermore case brief
was filed by l.. L. Hatfield and Grove l..
Johnson.
The court allowed two hours to counsel
for the argument. Judge Mckune
opened the debate and spoke half
hour. He was followed by Mr.. More
house. General Hart followed More
house, using a half hour, then followed
Delmas, after which the argument was
closed by Grove l.. Johnson. The cases
were then submitted.
They were decided in March, 1894. The
opinions of the judges were filed in the
Livermore case and are found In l02 Cal.
Rep, pages 1l4-132
grounds urged in the briefs of McKune,
Armstrong and Hart, namely. that the
proposed amendment was imperative
and invalid, because its taking effect, by
its own terms, depended upon the uncer-
tain conditions of a gift to be made by
someone of Sl,000,000, and ten acres of
land. The point was stated in Judge
McKune's brief as follows:
but the proposed amendment within
ifanl fQ of
feet or become part of the Constitution
until certain other things shall be done
by persons not named, and who are not
bound to do anything. First-The State
shall receive donation of ten acres of
land. When this donation is to be made
is not designated. Second-One million
of dollars must be paid into the State
Treasury. Who is TO pay it is not stated,
and no one is bound to pay the money,
and 20 time is fixed for it's payment into
the treasury. Third-The Governor,
Secretary of State and Attorney-General
must approve the site. No provision is
made for the event that the State officers
may not approve the site offered, and no
provision is made for the event of fail
ure to pay the $l,000,000. The proposed
amendment is not to take effect until all
these things are done, or, IL other words,
all these things must be done before such
removal shall be had"
This point was elaborated at length in
the briefs of the Sacramento attorneys in
the Rideout case. In one of them the
amendment was characterized as ''an
offer to sell the seat of government pro-
vided the wouldbe purchaser would at
his own time and pleasure elect to pay
the demanded price"
1t was upon this point alone that the
case was won by Sacramento.
The opinion of the court was by Judge
Harrison. He summarily disposed of the
objections to the validity OF the amend
ment made upon the facts touching the
manner of its passage by saying that it
was not necessary to consider them in
view of the conclusion the court had
reached concerning the character and
effect of the proposed amendment. This
conclusion is stated in the syllabus in
the following words: The proposed
amendment to change the seat OF gov
ernment to the city of San Jose was in
valid and ineffective, its operative effect
being limited upon the uncertain condi-
tions of the donation to the State OF not
less than ten acres of land and one mill
ion dollars In money, and the approval
by the Governor, the Secretary of State
and the Attorney-General of the site so
donated" And, in the body of the opin-
ion, the Judge puts in this way: The
amendment proposed substitutes for, or
rather superadds TO, the will OF the peo-
pie another will or judgment. without
which its own will can have no effect,
and which is, therefore, made the con
trolling judgment before the amendment
can have any operative existence. AS
the proposed amendment is, therefore,
only proposition for the people to SUBJ
NIT to some other individuals or body to
determine whether there shall be change
OF the seat of government, we hold that
it is not such an amendment as the Legis-
lature has been authorized to submit to
their votes"
Upon a careful examination OF the brief
of Hatfield and Johnson do not find
that this point was made or even limited