65 Cal. 577 | Cal. | 1884
Lead Opinion
The provisions of the Constitution with respect to the election of senators are perfectly plain, and if the legislature of 1881 had districted the State- in accordance with the command contained in section 6 of article iv. of that instrument, the scheme therein devised would have been put in perfect and
There is no doubt but that as a matter of fact the yhole number of senators—forty—were elected in the year" 1879, who held office for' the term of three years, and that the whole number—forty—were elected in the year 1882. How, where was the authority for those elections in the absence of the forty senatorial districts ? It is found, and can only be found, in the concluding clause of section 6 of article iv. of the Constitution, which is in these words: “Until such districting as herein provided for shall be made, senators and assemblymen shall be elected by the districts according to the apportionment now provided for by law,” that is to say, by the act of the legislature approved March 16, 1874, by which the State was divided into twenty-nine senatorial districts, numbered from one to twenty-nine, inclusive, and according to which there were twenty senators from the districts designated by odd numbers, and twenty senators from the districts designated by even numbers. In other words, the Constitution expressly kept in existence the districts established by the Act of 1874 until the legislature should establish the forty districts it was commanded to establish. It was from the twenty-nine districts as designated in the Act of 1874 that the forty senators were elected in 1879, and it was from those same districts that the forty senators were elected in 1882, twenty of whom were elected from districts designated by odd numbers. How, then, by section 5 of article iv. of the Constitution, it is declared: “The seats of the twenty senators elected in the year eighteen hundred and eighty-two from the odd-numbered districts shall be vacated at
Let the writ issue as prayed for.
Thornton, J., Myrick, J., and McKee, J., concurred.
Concurrence Opinion
I concur in what Justice Boss has said above, and in the conclusion reached by him, and will add that while in my judgment the framers of the Constitution expected that the legislature of 1881 would district the State as required by section 6 of article iv., that they did not fail to provide for the neglect of the legislature to do so; that this provision is made by the final clause of section 6, the words of which are quoted in the opinion of Justice Boss, that the mandate of the Constitution, that “the seats of the twenty senators elected in the year 1882 from the odd-numbered districts shall be vacated at the end of the second year,” was intended to apply alike to the system directed by the Constitution to be created by the legislature in 1881, and to the system continued in operation by the final clause of section 6 until the districting enjoined by the Constitution was made; that the purpose of vacating the seats of the twenty senators above mentioned, at the end of the second year after their election in 1882, was distinctly declared in the Constitution to be “ that one half of the senators should be elected every two years,” and that this purpose was intended to be carried out in whichever of the two modes above referred to the senators were elected.
The construction given to the Constitution in the opinion of Boss, J., harmonizes the provisions of the Constitution relating to the elections and terms of senators.
Morrison, C. J., MgKinstry, J., and Shaepstein, J., dissented.
Behearing in Bank denied.