Livermore v. Waite , 102 Cal. 113 ( 1894 )

Harrison, J.

At the last session of the legislature a proposition for an amendment to section 1 of article XX of the constitution was adopted by the vote of two-thirds of the members of each house, in the following terms:

“ Senate Constitutional Amendment No. 23, submitting to the people of the state of California an amendment to the constitution, amending section 1 of article XX of the constitution of the state of California, relative to changing the seat of government from the city of Sacramento to the city of San Jose.

“ The legislature of the state of California, at its thirtieth session, commencing on the second day of January, A. d. 1893, two-thirds of all the members elected to each house of said legislature voting in favor thereof, hereby proposes that section 1 of article XX (miscellaneous subjects) of the constitution "tif the state of California be amended so as to read as follows:

“Section 1. The city of San Jose is hereby declared to be the seat of government of this state, and shall so remain until changed by law; but no law changing the seat of government shall be valid or binding unless the same be approved and ratified by a majority of the qualified electors of the state voting therefor at a general state election, under such regulations and provisions as the legislature, by a two-thirds vote of each house, may provide, submitting the question of change to the people; provided, that the state shall receive a donation of a site of not less than ten acres and one million dollars before such removal shall be had. The governor, the secretary of state, and the attorney general are hereby authorized to approve said site, and upon the approval thereof, and the payment of one million dollars into the state treasury, the legislature shall provide for the erection of the necessary building and the_ removal of the seat of government.”

The present action was brought by the respondent as a taxpayer and citizen of the state, to restrain the defendant, as secretary of state, from certifying the said amendment to the clerks of the respective counties of the state, and from doing any other act with intent to have the said amendment submitted to the electors of the state, and from incurring any expenses in connection with said amendment, or with any attempt to secure a vote thereon by the people, upon the grounds, as contended by him, that by reason of the failure to comply with certain constitutional requirements, the amendment was never legally adopted, and, also, that, by the terms of the proposition itself, it is inefficient as an amendment to the constitution, and would be inoperative if approved by the people; and that, as a taxpayer and citizen, he is entitled to this relief against the improper expenditure of public moneys. Judgment was rendered by the court below in favor of the plaintiff, and the defendant has appealed.

The court made findings of fact in reference to the adoption of the amendment substantially as follows: “ On the 11th of March, 1893, while the legislature was in evening session, and after the hour of ten o’clock in the afternoon of that day, the proposed amendment was introduced and read in the senate, and, after the roll had been called upon a motion for its adoption, the secretary of the senate announced that twenty-eight senators, including Senators Hart and Voorhies, had voted for the amendment, and seven had voted against it. Immediately upon the announcement of the vote, what purported to be a true copy of the proposed amendment was transmitted to the assembly, with the announcement that it had been duly adopted by the senate, and at the hour of ten o’clock and fifteen minutes p. m. the senate adjourned. On the same evening, between the hour of ten o’clock and fifteen minutes and eleven o’clock p. m., the rules of the assembly were suspended, and the amendment was voted upon in that house and received the votes of fifty-seven members in its favor and seven against it. Immediately thereon one of the assemblymen who had voted in favor of its adoption gave notice of his intention to move for a reconsideration of the vote, and at eleven o’clock p. m. the assembly adjourned. On the 13th of March, the intervening day being Sunday, another assemblyman who had voted for its adoption moved the reconsideration of such vote, and immediately thereafter, upon his motion, the motion to reconsider was laid upon the table, and during the afternoon session of that day the copy of the amendment as sent to the assembly was returned to the senate with the announcement that it had been duly adopted by the assembly; and the legislature adjourned sine die without any action by the assembly upon the motion for a reconsideration of the vote by which the amendment had been adopted.

When the senate convened on the 13th of March, the journal was corrected so as to show that Senator Voorhies had voted no upon the adoption of the amendment, instead of aye, as it had been recorded. Thereupon Senator Hart, who had been opposed to the measure, stated, that he had voted no, but had changed to aye, because he had ascertained, before the announcement of the vote, that twenty-seven votes had been cast in favor of the amendment, and that he had changed his vote for the purpose of giving notice of a motion to reconsider, and that when the vote was announced he attempted to make such motion, but an adjournment was had before he could present the motion. He therefore asked to have his vote recorded against the amendment. The matter was referred to the committee on judiciary, which reported that Senator Hart had earnestly endeavored to defeat the measure when before the senate, and recommended that his personal statement be entered upon the journal. The motion of Senator Hart to have the journal corrected was denied, and the journal was approved, showing twenty-seven votes, including that of Senator Hart, in favor of the proposed amendment, and eight votes against it. The copy voted on in tho assembly differed from that voted on in the senate by the omission of the words “of this state” in section 1, immediately after the words “seat of government,” and in having the word “laws” instead of “Taw” in the first sentence.

Upon these facts the respondent in his argument has presented various reasons for the affirmance of the judgment, but the conclusion that we have reached concerning the character and effect of the proposed amendment renders it unnecessary to consider the other propositions presented by him.

Article XVIII of the constitution provides two methods by which changes may be effected in that instrument, one by a convention of delegates chosen by the people for the express purpose of revising the entire instru-ment, and the other through the adoption by the people of propositions for specific amendments that have been previously submitted to it by two-thirds of the members of each branch of the legislature. It can be neither revised nor amended except in the manner prescribed by itself, and the power which it has conferred upon the legislature in reference to proposed amendments, as well as to calling a convention, must be strictly pursued. Under the first of these methods the entire sovereignty óf the people is represented in the convention. The character and extent of a constitution that may be framed by that body is freed from any limitations other than those contained in the constitution of the United States. If, upon its submission to the people, it is adopted, it becomes the measure of authority for all the departments of government, the organic law of the state, "to which every citizen must yield an acquiescent obedience. The power of the legislature to initiate any change in the existing organic law is, however, of greatly less extent, and, being a delegated power, is to be strictly construed under the limitations by which it has been conferred. In submitting propositions for the amendment of the constitution, the legislature is not in the exercise of its legislative power, or of any sovereignty of the people that has been intrusted to it, but is merely acting under a limited power conferred upon it by the people, and which might with equal propriety have been conferred upon either house, or upon the governor, or upon a special commission, or any other body or tribunal. The extent of this power is limited to the object for which it is given, and is measured by the terms in which it has been conferred, and cannot be extended by the legislature to any other object, or enlarged beyond these terms. The legislature is not authorized to assume the function of a constitutional convention, and propose for adoption by the people a revision of the entire constitution under the form of an amendment, nor can it submit to their votes a propo- ' sition which, if adopted, would by the very terms in which it is framed be inoperative. The constitution itself has been framed by delegates chosen by the people for that express purpose, and has been afterwards ratified by a vote of the people, at a special election held for that purpose, and the provision in article XVIII that it can be revised only in the same manner, and after the people have had an opportunity to express their will in reference thereto, precludes the idea that it was the intention of the people, by the provision for amendments authorized in the first section of this article, to afford the means of effecting the same result which in the next section has been guarded with so much care and precision. The very term “constitution” implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term “amendment” implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. Experience may disclose defects in some of its details, or in the practical application of some of the principles or limitations which it contains. The changed condition of affairs in different parts of the state, or the changes of society or time, may demand the removal of some of these limitations, or an extended application of its principles. So, too, some popular wave of sociological reform, like the abolition of the death penalty for crime, or a prohibition against the manufacture or sale of intoxicating liquors, may induce a legislature to submit for enactment, in the permanent form of a constitutional prohibition, a rule which it has the power itself to enact as a law, but which might be of only temporary effect.

Section 1 of article XX of the constitution is as follows:

“The city of Sacramento is hereby declared to be the ¡seat of government of this state, and shall so remain until changed by law; but no law changing the seat of government shall be valid or binding unless the same be approved and ratified by a majority of the qualified electors of the state, voting therefor at a general state election, under such regulations and provisions as the legislature, by a two-thirds vote of each house, may provide, submitting the question of change-to the people.”

The designation of the seat of government of a state may not properly fall within the definition of a constitution, but as it is a matter which is of public interest, and concerns the entire state, it is frequently made a part of that instrument, with the qualification that it •shall so remain until changed by law. This declaration that the city of Sacramento is the seat of government of this state is a part of the constitution, and may be amended in the same manner as any other portion of that instrument. The provision that it shall so remain "the seat of government until changed by law, whether ¡such law is to be passed like any other law, or with the limitations prescribed in this section, is immaterial. The section of the constitution in which this provision is contained is not thereby withdrawn from the possibility of amendment. By this section the constitution provides that the seat of government may be changed in the manner therein prescribed, but the mode of effecting 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 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. Either of these courses was open to its choice, and if the amendment proposed by it were such as is within its power to submit for the approval of the people, the course adopted by it is without objection, for it must be left to the discretion of the legislature to determine which of two methods open to its selection it will adopt.

The proposed amendment is, however, ineffective in accomplishing the object expressed in the title of the proposition. Article XVIII, section 1, of the constitution provides that if a proposed amendment is ratified and approved by the people, it “ shall become a part of this constitution.” By the terms of the proposed amendment, however, its operative effect is limited upon the donation to the state of not less than ten acres in land and one million dollars in money, and the approval by the governor, the secretary of state, and the attorney general of the site so donated. 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 a 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 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. Although the first section of the amendment is in terms the declaration of an existing fact, the concluding portion shows that the amendment as a whole has reference to a future state of facts which may never come into existence. The proviso in the amendment is a limitation upon the declaration that the seat of government is at San Jose, and postpones the effect of that declaration until the conditions in the proviso have been complied with. Under established rules of construction applicable to constitutions, as well as to statutes, the effect of a proviso to an act is to render the proviso a limitation upon the body of the act, and to deprive the substantive part of the act of all effect inconsistent with the terms of the proviso.

The effect of the amendment, if approved by the people, would be that the seat of government will at some future time be at San Jose, provided a donation of a million dollars in money aud 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 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 declared to be the seat of government of this state,” would be ineffectual, for, the reason that the amendment would fail to become an operative part of the constitution. 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, and not a subsequent removal from San Jose, as is suggested in one of the briefs filed herein. By the existing constitution, the seat of government is fixed at Sacramento, and is to remain there until changed, and by the terms of the proposed amendment there can be no removal except in accordance with the terms of the proviso upon which it is conditioned, and which limits the removal from Sacramento to San Jose to those terms. This removal is conditioned upon the approval of the site that must be donated before the declarative portion of the section can have any operation, and is the removal which is referred to in the proviso which declares that the donation shall be made “ before such removal shall be had.” If any additional argument is needed, it is found in the current history of the adoption of the amendment, and also in the entitling of the proposition for the amendment, which declares it to be “ relative to changing •the seat of government from the city of Sacramento to the city of San Jose.” • The provision in the proposed amendment for a law providing for its subsequent change from San Jose would not, upon its approval by the people, become an operative provision of the constitution, for the reason that that city will not, upon, the mere approval of the amendment by the people, become the seat of government; so that the proposition of the legislature, instead of amending the constitution, either by changing any of its terms, or adding thereto some other limitation, would take away the provision which now exists, and place in its stead a provision which is incompatible with the requirement that it shall become a part of the instrument. '

The legislature was not authorized by the framers of the constitution, nor do the terms of that instrument permit it to propose any amendment that will not, upon its adoption by the people, become an effective part of the constitution, nor is it authorized to propose an amendment which, if ratified, will take effect only at the will of other persons, or upon the approval by such persons of some specific act or condition. The amendment proposed is neither a declaration by the people of a principle or of a fact, nor is it a limitation or a rule prescribed for the guidance of either of the departments to which the sovereignty of the people has been intrusted. If adopted it would have merely the effect to present the option to any one so disposed of making a donation of land and money for the purpose of having the seat of government at San Jose. Such a proposition is legislative in character, rather than constitutional, and, being conditional in its terms, would be ineffective in accomplishing a change of the seat of government from that already fixed by the constitution. Even if it should be conceded that its approval by the people would incorporate its terms into the constitution, it would take from that instrument the existing declaration fixing the place for the seat of government, and leave the state without any constitutional seat of government until the conditions upon which the declaration rests have been performed. As there is no limitation of the time within which these conditions are to be performed, and no obligation for their performance, it follows that the seat of government would have no established location. But the donation of the money and land does not bring the provision into operation, for, until after the site that may be offered has received the approval of the designated officers, there can be no act of the legislature tending to the removal. Instead, therefore, of there being any declaration by the people of a place for the seat of government, a commission is substituted, whose judgment is to be taken instead of the judgment of the people, and to which is assigned a discretion which should be exercised by the people themselves. ^Ve do not mean to say that a legislative provision in a constitution that has been ratified by the people would be nugatory. If placed there, it must be observed by courts and citizens, but, for the purpose of determining the extent of the power conferred upon the legislature to propose amendments to the constitution, we must assume that it is only such amendments as may naturally and reasonably belong to the elements of a constitution. The amendment proposed substitutes for, or rather superadds to., the will of the people another will or judgment, without which its own will can have no effect, and which is, therefore, made the controlling judgment before the amendment can have any operative existence.

As the proposed amendment is, therefore, only a proposition for the people to 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. If the people shall at any time desire a removal of the seat of government from Sacramento, this result can be readily effected either by a law passed in accordance with the existing provisions of the constitution, or by a 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 a direct vote upon the question.

The judgment and order of the court below are affirmed.

Beatty, C. J., Fitzgerald, J., De Haven, J., and Garoutte, J., concur.