The record-union., 1899-11-22
THE ACT UNCONSTITUTIONAL
NO STANDARD FOR WEIGHTS
AND MEASURES.
Interesting Decision of Judge
Hughes in the Case Against the
Secretary Of State.

In the case OF j. F. Nicely of San
Diego against Secretary of State Charles
F. Curry, Superior Judge Hughes yes
terday sustained the defendants de-
murrer In making the order the court
says:
This is an application for a writ of
mandate to compel the defendant,
Charles f. Curry, as Secretary of State
and ex-officio State Sealer of Weights
and Measures, to examine, certify and
seal for the plaintiff, James F. Nicely.
as County Sealer of Weights and Meas
ures for the county of San Diego, all
balances, weights and measures to be
used by him as standards, pursuant to
the provisions of an 1Ac. of the Legis-
lature of California, entitled AN Act
to establish a standard of weights and
measures" Statutes of 1891, page
1919
The defendant demurred to the petit
ton on several grounds, and among
others: /. The Act, if it is what it pur-
ports to be, is in violation of the Fed
eral Constitution. =. The title of the
Act does not describe the subject OF
the Act. 3. The Act is on several sub
jects.
l am satisfied that the first objection
stated in the demurrer is we'll taken.
The Constitution of the United States
provides: Congress shall have power
to fix the standard Of weights
and measures" Desty's Federal Con-
stitution, Art. l., Sec. s, p. $50
The rule is too we'll known to require
the citation of authority that, where
Congress has exercised the power thus
given it by the Constitution, such power
is exclusive, and the States have no au-
thority to legislate on the inhibited sub
ject. In the case before us Congress
has exercised the power conferred by
the Federal Constitution, and has fixed
the standard of weights and measures.
CRevised Stats. u. s., Secs. 3495-357O;
Statutes U. s., 1SS9-90, page 242; Stat
utes U. S., 1S93-95, page $3.50
1t therefore follows that the Legis-
lature of California had no authority
at the time of the passage of the Act
of 1891, to establish a standard OF
weights and measures, and it's effort in
that direction is, in my opinion, with
out effect.
But let us consider the second and
third grounds of objection stated in the
demurrer to the petition, namely: That
the title of the Act does not describe
the subject thereof, and that the Act
is on several subjects.
Article 4, Section "a of the Constitu
ton of California reads as follows.
Every Act shall embrace but one sub
ject, which subject shall be expressed
in it's title. But if any subject be en-
-
expressed in it's title, such Act shall be
void in SO much thereof as shall not
be expressed in it's title Desty's Con-
stitution of California, p. 252)
This provision of our Constitution is
made mandatory by the terms of Arti-
Gle l., Sec. % of the same instrument.
Oesty's Constitution, p. 216)
Let us examine the Act in detail. 1t
is entitled AN Act to establish stand
ard of weights and measures"
The first section of the Act provides:
There shall be but one standard of
weights and measures of capacity
throughout this State, which shall be
in conformity with the standard of
weights and measures established by
law"
We may concede, for the purposes of
the argument, that Section l does es-
tablish a standard of weights and
measures, and proceed to consider the
other sections of the Act Section =
provides that the Secretary of State
shall be ex-officio State Sealer of
Weights and Measures, etc. This sec
ton of the Act clearly establishes the
office of State Sealer of Weights and
Measures, and yet we find nothing in
the title of the Act concerning the crea-
ton of any Office.
Section 3 of this Act makes it the
duty of the Governor of the State, when
SO requested by the Board of Super
.visors of any county, to appoint a
County Sealer. and autho. ICES the Coun-
ty Sealer, at the expense of the county,
to purchase the necessary parapheTna--
liza of his office. And yet in the title OF
the Act we find no mention of any OF
the provisions of Section g. Section
8 of the Act provides for the fees and
compensation of the County Sealer, and
Section IL provides for the appointment
of a Deputy State Sealer and fixes his
salary, and yet the title of the Act in
no manner refers to or mentions the
pensation of the incumbent thereof.
In other words this Act of the Leg.
islature, under the title which indi-
Gates merely the establishment of a
standard of weights and measures for
the State, creates the office of State
Sealer; provides for his deputy at a
fixed salary; provides for a County
Sealer in each county of the State, who
may appoint an unlimited number OF
deputies; authorizes the expenditure of
large sums of money by the State and
by the various counties in the equip
ment of the offices of such officers, and
fixes penalty for the violation of any
of it's provisions.
In the opinion of the court the Act
in question is SO clearly violative OF
the provision of our Constitution here
inbefore quoted that a citation of the
Constitution itself is deemed a suffi
cient authority for entertaining the
view that the Act is absolutely void.
1 am not unmindful that, under the
decisions it is not necessary that the
title Of the Act should in any way be
an index to the Act itself; but it GER
tainly is not permissible for the Leg
islature, under the guse of establish
ing a standard of weights and meas
ures to create a law such as the one
before us.
1 am therefore of the opinion that the
demurrer to the petition is well taken,
and should be sustained, and it is so
ordered. JOSEPH w. HUGHES,
Judge of the Superior Court.