Imágenes de páginas
PDF
EPUB

ing; nor while kept at any almshouse or other asylum, at public expense; nor while confined in any public prison.

Ala. I, 32; Colo, VII, 4; Ill. VII, 4; Ind. II, 4; Kan. V, 3; Mich. VII, 5; Minn. VII, 3; Miss. VII, 6; Mo. VIII, 7; Neb. VII, 3; Nev. II, 2, 3; N. Y. II, 1, Amend.; Ohio, V,5; Or. II, 4; Pa. VIII, 6, 13; S. C. VIII, 4; Wis. III, 4.

66

Residence is that place where the elector makes his permanent or true home, his principal place of business, and his family residence, and where he intends to remain indefinitely.1 Resident" means one who has a permanent abode-not one sojourning temporarily for specific purposes.2 The mere residence or sojourn of a soldier neither creates nor destroys citizenship, but leaves the political status where it was before; and an act of the legislature authorizing United States soldiers to vote elsewhere than where they reside is unconstitutional.4

1 Fry's Case, 71 Pa. St. 302.

2 Fry's Case, 71 Pa. St. 302.

3 Ortman v. Riley, 15 Cal. 48.

4 Bourland v. Hildreth, 26 Cal. 162; approved, Day v. Jones, 31 Cal. 261. And see Orman v. Riley, 15 Cal. 48; Opin. of Judges, 30 Conn. 591.

§ 5. All elections by the people shall be by ballot.

Ala. VIII, 3; Ark. III. 3; Colo. VII, 8; Conn. VI, 7; Del. IV, 1; Fla. XIV, 5; Ga. II, 1; Ill. VII, 2; Ind. II, 13; Iowa II, 6; Kans. IV, 1; Ky. VI, 17; La. VI, 107; Me. II, 1; Md. I, 1,2,3; Mich. VII, 2; Minn. VII, 6; Miss. VII, 1; Mo. VII, 2; Neb. VII, 6; Nev. II, 5; N. H. Pt. II, 32; N. Y. II, 5; N. C. VI, 3; Ohio V, 2; Pa. VIII, 4; R. I. VIII, 2; S. C. VIII, 1; Tenn. IV, 4; Tex. VI, 4; Vt. XII, 4; Va. III, 2; W. Va. IV, 2; Wis. III,3.

ARTICLE III.

DISTRIBUTION OF POWERS.

§ 1. The powers of the Government of the State of California shall be divided into three separate departmentsthe legislative, executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions ap

pertaining to either of the others, except as in this Constitution expressly directed or permitted.

Iowa III; Nev. III. See Ala. III; Ark. IV; Colo. III; Conn. II; Fla. IV; Ill. III; Ind. III; Ky. I; Me. III; Mich. III; Minn. III; Miss. III; Mo. III; Neb. II; N. J. III; Or. III; R. I. III; Tenn. II; Tex. II; Va. II; W. Va. V.

Construction.-This article means that the powers of the State government, not the local governments thereafter to be created by the legislature, shall be divided into three departments, and that the members of one department shall have no part or lot in the management of the affairs of either of the other departments, "except in the cases hereinafter expressly directed or permitted."1 Under this article the duties and powers of any department, not by the constitution disposed of or distributed, are left to the disposal of the legislature.2 It does not place either department of the State government above the law, nor make either independent of the other. The three powers of government shall be distinct, yet the separation is not total. When a discretion is confided to any one branch of the Government, a decision by that department on such matters cannot be questioned or revised.5 There is no power to compel the legislature to make laws.6 A grant of power to a department of Government, or to a constitutional or statutory officer or tribunal, without defining the manner and form of its exercise, leaves to the legislature the power to prescribe reasonable rules by which it may be done. Legislative acts cannot be performed by the judiciary,8 nor can the legislature exercise judicial functions, as prescribing for the issuing of an injunction, 10 or the appointment of a receiver, 11 or declaring void certain judgments,12 or reversing the judgment of the supreme court, 13 or granting a new trial, and reopening a judgment; 14 but the empowering an administrator to sell lands to pay debts is a legislative and not a judicial power. 15 The legislature cannot authorize municipal authority to collect assessments already declared invalid, 16 nor confer power on boards of supervisors to try a contest in relation to the office of a county judge; 17 but it may direct supervisors to audit and allow the claim of a judgment-creditor; this is not judicial in its character, and is constitutional; for the legislature can as well direct in such a matter as in any other of municipal regulation. 18 It cannot legalize pleadings substantially defective without first requiring them to be amended.19 Where the power to remit fines and penalties is confided to the executive the legislature cannot act.20

1 People v. Provines, 34 Cal. 532, overruling Burgoyne v. Supervisors of San Francisco, 5 Cal. 19; Exline . Smith, 5 Cal. 112; Dickey v. Hurlburt, 5 Cal. 343; Thompson v. Willlams, 6 Cal. 88; Tuolumne Co. v. Stanislaus Co. 6 Cal. 440; Phelan v. San Francisco, 6 Cal. 531; Sanderson's Case, 30 Cal. 160.

2 Ross v. Whitman, 6 Cal. 361.

3 McCauley v. Brooks, 16 Cal. 11.

4 Beall v. Beall, 8 Ga. 210.

5 March v. State, 44 Tex. 64.

6 St. Jo. Pub. School v. Patten, 62 Mo. 444.

7 Austin v. Gulf &c. R. R. Co. 45 Tex. 234; Navigation Co. v. Galveston Co. 45 Tex. 272.

8 Galesburg v. Hawkinson, 75 Ill. 152.

9 Lane v. Nelson, 79 Pa. St. 407; Arick v. Hampton, 13 Nev. 439; Carleton v. Goodwin, 41 Ala. 153; Alabama &c. Co. v. Boykin, 38 Ala 510; Sanders v. Cabames, 43 Ala. 173

10 Guy v. Hermance, 5 Cal. 73.

11 Cary v. Giles, 9 Ga. 253.

12 Weaver v. Lapsley, 43 Ala. 224. 13 Matt. of Dorr, 3 R. I. 299.

14 People v. Frisbie, 26 Cal. 137.

15 Holman v. Bank of Norfolk, 12 Ala.339

16 Mayor &c. v. Horn, 26 Md. 194.

17 Stone v. Elkins, 24 Cal. 125.

18 O'Donnell v. San Francisco, 11 Cal. 206. 19 People v. Mariposa Co. 31 Cal. 196.

20 Haley v. Clark, 26 Ala. 439.

ARTICLE IV.

LEGISLATIVE DEPARTMENT.

1. Senate and assembly, and enacting clause.

2. Sessions of legislature.

3. Election and term of assemblymen.

4. Election and term of senators.

5. Number and classes of senators.

6. Senatorial and legislative districts.

7. Organization of legislature.

8. What number constitutes a quorum.

9. Rules for their government-Expulsions. 10. Each house to keep a journal.

11. Privilege of members.

§ 12. Vacancies, how filled.

§ 13. Open doors and secret sessions.

§14. Adjournment, how long and where to.

§ 15. Origin and passage of bills.

16. Approval and return of bills-Passage over veto.

17. Impeachments, presentment and trial of.

[ocr errors]
[ocr errors]

18. What officers liable to impeachment-Judgment on.
19. Member ineligible to office created during the term.
20. Who ineligible to office under State government-proviso.
21. Embezzlement or defalcation-Penalty for.

22. Public moneys and accounts-Statement of receipts and expenditures.

§ 23. Compensation not to be increased during term.

24. Title of laws-Revision and amendment-Publication of.

25. Local and special laws prohibited.

26. Lotteries prohibited-Purchase and sale of shares of stock to be regulated.

27. Congressional and Senatorial Districts.

28. Elections by legislature to be viva voce.

29. General appropriation bill, what to contain.

30. Restriction on appropriations and grants of aid.

$ 31. Credit of State or municipalities not to be loaned.

32. Extra compensation to officers forbidden.

33. Charges of gas and telegraph corporations to be regulated. $34. Special appropriation bill, restriction as to.

$ 35. Lobbying defined-Punishment for.

§ 1. The legislative power of this State shall be vested in a Senate and Assembly, which shall be designated The Legislature of the State of California, and the enacting clause of every law shall be as follows: "The People of the State of California, represented in Senate and Assembly, do enact as follows."

Nev. IV, 1, 23.

And see Ala. IV, 1,2; Ark. V, 1; Colo. V, 1; Conn. III, 1; Del. II, 1; 1; Fla. V, 1, 13; Ga. III, 1; Ill. IV. I, 11; Ind. IV, 1; Iowa, III, I; Kan. II, 1,20; Ky. II, 1; La. II, 15; Me. IV, 1; Md. III, 1, 29; Mich. IV, 1, 48; Minn. IV, 1, 13; Miss. IV, 1, 32; Mo. I, 24; Neb. III, 1; N. H. Pt. II, 2 N. J. IV, 1,7; N. Y. III, 1, 14; N. C. II, 1, 21; Ohio, II, 1, 18; Oreg. IV, 1; Pa. II, 1; R. I. IV, 2; S. C. II, 1, 19; Tenn. II. 3, 20; Tex. III, 1, 29; Va. V, 1; W. Va. VI, 1; Wis. IV, 1, 17.

Legislative power. The legislative department represents the mass of political powers, and is no further controlled as to its powers or mode of their exercise than by the restrictions of the constitution.1 American legislatures have the same unlimited power as is possessed by the British Parliament,2 and nothing is prohibited which is not so either by express terms in the constitutions, or by necessary implication, and every subject within the scope of civil government not withdrawn by the State constitution can be dealt with; but if the boundary of a limited power be overstepped by the legislature its acts are void, and may be inquired into.5 Its powers concurrent with the power of the General Government are subject to the single limitation that in case of conflict the State must

6

yield. The legislature must look to the object and purpose of the different sections of the constitution relative to the same matter when called on to legislate; 7 but on the passage of an act it may refer to an act unconstitutional in itself to indicate its will in respect to a constitutional purpose.8 The legislature has the power to declare who shall be competent to testify, and the power to regulate the production of evidence, and the power to require a less amount of proof than is required by the act of Congress in relation to the record of judgments of another State.10 Congress has no authority to legislate concerning the rules of evidence in State courts, nor to affix conditions upon which those rules are applied and enforced.11 The legislature may regulate the mode of the conveyance of property, 12 or cure defective conveyances, 18 or make an act changing the law of descent. 14

1 People v. Coleman, 4 Cal. 46; Thorne v. San Francisco, 4 Cal. 127; State v. Rogers, 13 Cal. 159; Hobart v. Butte Co. 17 Cal. 23; Smith v. Judge of Twelfth District, 17 Cal. 547; Bourland v. Hildreth, 26 Cal. 183; S. & V. R. R. Co. v. Stockton, 41 Cal. 147; Philadelphia v. Field, 58 Pa. St. 320; Townsend v. New York, 16 Hun, 362.

2 Hollenbeck v. Hahn, 2 Neb. 394.

3 Lowrey v. Gridley, 30 Conn. 458.
4 Munn v. Illinois, 69 Ill. 80.

5 Cronise v. Cronise, 54 Pa. St. 255.
6 State v. Ashley, 1 Ark. 513.
7 Wright v. Adams, 45 Tex. 134.

8 People v. Bircham, 12 Cal. 50.

9 People v. Brady, 40 Cal. 198; People v. Washington, 36 Cal. 658. 1) Whitwell v. Barbier, 7 Cal. 54.

11 Duffy v. Hobson, 40 Cal. 240.

12 Warfield v. Ravisias, 38 Ala. 518. 13 Barnet v. Barnet, 15 Serg. & R. 72. 14 Beall v. Beall, 8 Ga. 210.

Instances.-The power to prescribe police regulations is in the legislature, and is inalienable even by express grant.1 States have exclusive rights of property over tide-waters within their limits,2 and the right to control fisheries. Merely official positions, unprotected by specific constitutional provisions, are subject to the exercise of the power of the legislature; 4 and the legislature may change the mode of appointment to offices of its creation.5 The legislature may authorize persons to have free access to public records. It may authorize a guardian to sell the real estate of his ward, or may pass an act validating the sale of orphans' property, but it cannot validate judicial proceedings void for want of jurisdiction,8 nor by

« AnteriorContinuar »