VI. MINISTERIAL AND OTHER OFFICERS CONNECTED WITH THE COURTS. 749 VII. GENERAL PROVISIONS RELATIVE TO DIFFERENT CLASSES OF OFFICERS 841 CHAPTER I. CLASSIFICATION OF PUBLIC OFFICERS. 220. Classification of public officers. SEO. 220. The public officers of this state are classified as follows: 1. Legislative; 2. Executive; 3. Judicial; 4. Ministerial officers and officers of the courts. But this classification is not to be construed as defining the legal powers of either class. Officers de facto.-It is one of the disputable presumptions declared by the Code of Civil Procedure of California that a person acting in a public office was regularly appointed to it: Sec. 1963, subd. 14; and this principle has been recognized by the courts of this state in many instances: Cohas v. Raisin, 3 Cal. 453; People v. Clingan, 5 Id. 289; People v. Roberts, 6 Id. 215; Mott v. Smith, 16 Id. 552; Downer V. Smith, 24 Id. 121; Delphi School Dist. v. Murray, 53 Id. 29. This presumption is but in consonance with the common-law theory on the subject. It is designed for the benefit of third persons. The acts of de facto officers are good as to strangers. Such persons, from the nature of the case, cannot always investigate the right of one assuming to hold an office, even so far as to see that he has color of title to it by virtue of some appointment or election. If they see him publicly exercising its authority, if they ascertain that this is generally acquiesced in, they are entitled to treat him as such officer, and if they employ him as such, should not be subjected to the danger of having his acts collaterally called into question: Petersilea v. Stone, 119 Mass. 465; State v. Carroll, 38 Conn. 449; Wilcox v. Smith, 5 Wend. 231; People v. Kane, 23 Id. 414; People v. White, 24 Id. 520; Carli v. Rhener, 27 Minn. 292; County of Ralls v. Douglass, 105 U. S. 728. In State v. Carroll, supra, the following comprehensive language was used in defining officers de facto: “An officer de facto is one whose acts, though not those of a lawful § 220 GOVERNMENT OF THE STATE. officer, the law, upon principles of policy and This definition is substantially recognized and adopted by nearly all the adjudications in the American courts of the present day: Braidy v. Theritt, 17 Kan. 468; Ellis v. The N. C. Institution, 68 N. C. 423; Threadgill v. T. C. C. R. Co., 73 Id. 178; People v. Stanton, Id. 546; Burke v. Elliott, 4 Ired. L. 355; Brown v. Lunt, 37 Me. 423; People v. Lieb, 85 Ill. 484; Pierce v. Weare, 41 Iowa, 378; McLean v. State, 8 Heisk. 22; Sheehan's Case, 122 Mass. 445; Mallett v. U. S. G. & S. M. Co., 1 Nev. 188; Ex parte Norris, 8 S. C. 408; Carleton v. People, 10 Mich. 250; Clark v. Commonwealth, 29 Pa. St. 129; Commonwealth v. McCombs, 56 Id. 436; State v. Williams, 5 Wis. 308. Rights of de facto officers.-The acts of a de facto officer, while binding and effective as to third persons, afford no protection to the officer himself: Canover v. Devlin, 15 How. Pr. 470; Pooler v. Reed, 73 Me. 129; People v. Hopson, 1 Denio, 574; Blake v. Sturtevant, 12 N. H. An offi567; Cummings v. Clarke, 15 Vt. 653. cer de facto cannot recover the fees incident to the office: People v. Dorsey, 28 Cal. 21; People v. Oulton, Id. 44; Carroll v. Silbenthaler, 37 İd. 193; Meredith v. Supervisors, 50 Id. 433; McCue v. Wapello Co., 56 Iowa, 698; People v. Potter, 63 Cal. 127; Kimball v. Alcom, 45 Miss. 151; Matthews v. Supervisors, 53 Id. 715. That the salary of an office is an incident of the legal right thereto, and not of its occupation and exercise, was decided in Dorsey v. Smyth, Contesting de facto officer's title: See Hull v. Superior Court, 63 Cal. 174, 179. "Can be made only by an original proceeding by information in the nature of quo warranto lien as incumbent." How officers ex-officio should sign: Sec. 1031, post. Performance of official duty regularly will be presumed: Code Civ. Proc., sec. 1963, subd. 15; and the code provision is but declaratory of settled principle in this respect: Upham v. Hosking, 62 Cal. 250; Hartwell v. Root, 10 Am. Dec. 232; Terry v. Bleight, 16 Id. 101; Farr v. Sims, 24 Id. 396; Hart v. Burnett, 15 Cal. 530; Den v. Den, 6 Id. 81; Curtis v. Herrick, 14 Id. 117; Egery v. Buchanan, 5 Id. 63; Weaver v. Fairchild, 50 Id. 360; Sill v. Reese, 47 Id. 294. Legislative officers: See secs. 225, post, et seq. 110 Executive officers: See secs. 341, post, et CHAPTER II. LEGISLATIVE OFFICERS. ARTICLE 1. DESIGNATION, TERM OF OFFICE, AND ELECTION OF MEMBERS.. III. NUMBER, DESIGNATION, ELECTION, AND APPOINTMENT OF OFFICERS AND EM- 225 235 245 IV. POWERS AND DUTIES OF OFFICERS AND EMPLOYEES OF THE LEGISLATURE... 252 V. COMPENSATION OF MEMBERS, OFFICERS, AND EMPLOYEES OF THE LEGISLATURE. 260 VI. CONTESTING ELECTIONS FOR MEMBERS OF THE LEGISLATURE....... VII. CONTESTING ELECTIONS FOR GOVERNOR OR LIEUTENANT-GOVERNOR... VIII. ATTENDANCE AND EXAMINATION OF WITNESSES BEFORE THE LEGISLATURE AND COMMITTEES THEREOF.. 273 288 300 NUMBER, DESIGNATION, TERM OF OFFICE, AND ELECTION OF MEMBERS OF THE 225. Number and designation. LEGISLATURE. SEC. 225. The legislature consists of: 1. Forty senators; and, 2. Eighty members of the assembly. The legislature is the law-making department of our state and national governments. The national legislature, congress, may pass such laws as it is permitted to pass by the constitution of the United States, and none others; the state legislatures, on the contrary, have power to pass all such laws as they are not prohibited by their respective state constitutions or by the national constitution from passing: See works on constitutional law; S. P. R. R. v. Orton, 6 Saw. 186. This body, the state legislature, in which is vested the law-making power of the people, Bank of the State v. Cooper, 24 Am. Dec. 517, possesses all the legislative power which was exercised by the king and parliament of England prior to the revolution, Lansing v. Smith, 21 Id. 89, subject only to the restrictions imposed by the constitution of the state and of the United States: Id.; Hoke v. Henderson, 25 Id. 677; Beals v. Amador Co., 35 Cal. 624. In harmony with the theory of our government, the legislature cannot exercise judicial functions: Pryor v. Downey, 50 Id. 389; People v. Frisbie, 26 Id. 135; Guy v. Hermance, 5 Id. 73; Weaver v. Lapsley, 43 Ala. 224; Saunders v. Cabaniss, Id. 173; Sydnor v. Palmer, 32 Wis. 409; Dorsey v. Dorsey, 37 Md. 64; Lanier v. Gallatas, 13 La. Ann. 175; Lawson v. Jeffries, 47 Miss. 686; Atkinson v. Dunlap, 50 Me. 111; Sparhawk v. Sparhawk, 116 Mass. 315; Dorr's Case, 3 R. I. 299. Its powers are distinctively legislative; and this power to make laws it cannot delegate: Ex parte Wall, 48 Cal. 279; Upham v. Supervisors, 8 Id. 378; Houghton v. Austin, 47 Id. 646; Willis v. Owen, 43 Tex. 41; State v. Swisher, 17 Id. 441; State v. Parker, 26 Vt. 362; People v. Collins, 3 Mich. 343; State The v. Weir, 33 Iowa, 134; State v. Hudson Co., 37 N. J. L. 12; Brewer v. Brewer, 62 Me. 62; Farnsworth v. Lisbon, Id. 451; Commonwealth v. Locke, 72 Pa. St. 491; Clark v. Rochester, 28 N. Y. 605; Starin v. Genoa, 23 Id. 429. maxim that legislative power cannot be delegated is, says Cooley, Const. Lim., sec. 118, to be understood in the light of the immemorial practice of this country and of England, which has always recognized the propriety of vesting in the municipal organizations certain powers of local regulation, in respect to which the parties immediately interested may fairly be supposed more competent to judge of their needs than any central authority. The legislature has no power to refer a statute to the people, to decide by a popular vote whether it shall go into effect: Ex parte Wall, 48 Cal. 279. Judge McKinstry, in the opinion in that case, states very clearly the reasons upon which the decision is based -reasons which form the basis of the adjudications in most of the other states. "The legislature cannot transfer to others the responsibility of deciding what legislation is expedient and proper, with reference either to present conditions or future contingencies. To say that the legislators may deem a law to be expedient, provided the people shall deem it expedient, is to suggest an abandonment of the legislative function by those to whose wisdom and patriotism the constitution has intrusted the prerogative of determining whether a law is or is not expedient. Can it be said in such case that any member of the legislature declares the prohibition or enactment to be expedient? The legislature has no more right to refer such a question to the whole people than to a single individual. The people are sovereign, but their sovereignty must be exercised in the mode pointed out by the constitution." The whole subject is elaborately discussed in Cooley's Constitutional Limitations, secs. 117 et seq., and the conclusion reached by him is section 120. The prevailing doctrine in the courts appears to be that, except in those cases where, by the constitution, the people have expressly reserved to themselves a power of decision, the function of legislation cannot be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration." Evidence of passage of an act.-If an act is properly enrolled and authenticated, and is deposited with the secretary of state, it is conclusive evidence of the legislative will at the time of its passage, and the courts will not look into the journals of the legislature to see whether or how the bill was passed: People v. Burt, 43 Cal. 560; and see the provisions in Code Civ. Proc., sec. 1900. The law presumes that all necessary formalities have been complied with by the legislature, where the act is signed and enrolled, and nothing to the contrary appears from the face thereof; yet this presumption may be overthrown by the journals: People v. Commissioners, 54 N. Y. 276; Green v. Weller, 32 Miss. 650; Berry v. Baltimore R. R. Co., 41 Md. 446; English v. Oliver, 28 Ark. 317; State v. Swift, 10 Nev. 176; but see the elaborate opinion of Judge Sawyer in Sherman v. Storey, 30 Cal. 266, holding the enrollment is conclusive evidence of the existence of the statute. Legislative acts cannot be attacked on the ground of fraud: 0. & V. R. R. Co. v. Plumas Co., 37 Id. 354. In view of the apparent departure in California from the generally recognized right of the courts to refer to the journals of the legislature to determine whether or not an act was regularly passed, the recent construction of article 4, section 15, of the constitution of 1879 of that state, in the railroad tax cases, County of San Mateo v. Southern P. R. R. Co., 8 Saw. 238, 293, in the United States circuit court of California, becomes of moment, adopting, as it does, the prevailing rule, and justifying that adoption by virtue of the section above referred to. That section provides that "on the final passage of all bills they shall be by yeas and nays upon each bill separately, and shall be entered on the journals, and no bill shall become a law without the concurrence of a majority of the members elected to each house." Judge Sawyer went into an examination of the journals in passing upon the validity of the act in question, and discovered that it had never finally passed. In the course of his opinion he said: "Whether the bill became a law is a question of law, of which the court will take judicial notice: Sherman v. Storey, 30 Cal. 253; Ottawa v. Perkins, 94 U. S. 268; Gardener v. The Collector, 6 Wall. 509, 510; Post v. Supervisors, 105 U. S. 667. Under the decisions of the courts, in all respects similar to that in the present constitution of California, it is settled that the court, to inform itself, will look to the journals of the legislature. So the supreme court of the United States holds where it is so decided by the state courts in construing their own constitution and laws: See cases last cited. I am not aware of any decision of the supreme court of California, giving a different construction to the state constitution as it now stands. Unless this mode is adopted of resorting to the journals to ascertain whether a statute has been legally passed or not, experience and the number of cases that have already arisen under similar constitutional provisions demonstrate that the requirement of the consti-, tution, that the vote shall be taken by yeas and nays and a majority of the members required to vote in the affirmative on the final passage of an act, would be of little avail. While we think the case of Sherman v. Storey correctly decided under the constitution as it then was, we are of the opinion that the change in the constitution requires a change in the rule. When California adopted from other states the provision now found in its constitution, substantially as found in the constitution of Illinois, it must be deemed to have adopted with the provision the settled construction put upon it by the courts of the state from which it was taken. The leading cases upon the point are Spangler v. Jacoby, 14 Ill. 278; Prescott v. Board of Trustees, 19 Id. 326; Osborn v. Staley, 5 W. Va. 89, and the cases cited in those before cited from the United States supreme court. In this case there is something more than an omission in the journals, for it affirmatively appears what the vote was, and that the bill did not pass by the vote required by the constitution." His honor then referred to certain statutory modifications supporting this construction, and concluded: "We think there can be no doubt, under the constitution of the state and those statutes, that we may look to the journals to see what action was in fact had with respect to any apparent law as published in the volumes of the state; and looking to the journals, it affirmatively appears that the act upon the statutebooks in question never did become a law." For other decisions regarding the power of the courts to look into the journals of the legis lature for the purpose of ascertaining whether a bill received the required vote, or conformed in other respects to the requisites of the constitution or laws, consult Dew v. Cunningham, 28 Ala. 466; Perry v. Selma R. R. Co., 58 Id. 546; People v. Lowenthal, 93 Ill. 191; Ryan v. Lynch, 68 Id. 160; Berry v. Baltimore R. R'y Co., 41 Md. 446; Commonwealth v. Jackson, 5 Bush, 680; People v. Hurlburt, 24 Mich. 44; Legg v. Annapolis, 42 Md. 203; Brady v. West, 50 Miss. 68. In Koehler v. Hill, 60 Iowa, 543, the whole question underwent an elaborate examination by the court, Judge Beck dissenting; there the court took into consideration the legislative journals in order to pass upon the validity of a constitutional amendment that had been ratified by the people. The amendment under discussion was a prohibitory liquor amendment, and was declared not part of the constitution, the requisite formalities not having been complied with by the legislature. For consideration of the exercise of legisla tive power in different instances, see the particular cases in which the power has been called in question; as "Divorce," "Eminent Domain," and the like. Number of members: Const. Cal, art 4, sec. 5. 226. Term of office. SEC. 226. The term of office of a senator is four years; of a member of the assembly, two years. Term of office: See Const. Cal., art. 4, secs. 3-5. Sections 227, 228, 229, and 230 of this code were superseded by "An act to define the senatorial and assembly districts of the state, and to apportion the representation thereof," approved March 16, 1874; 1873-4, 366. The act is given in full, ante, sec. 78, subd. 30-32. ARTICLE II. MEETING AND ORGANIZATION OF THE LEGISLATURE. 235. Time and place of meeting. SEC. 235. The legislature shall assemble at the seat of government at twelve o'clock M., on the first Monday after the first day of January, eighteen hundred and eighty-one, and on the first Monday after the first day of January every two years thereafter. [Amendment, approved April 9, 1880; Amendments 1880, 48 (Ban. ed. 153); took effect sixtieth day after passage.] Conforms to art. 4., sec. 2, Const. Cal. 236. Certificate of election evidence of right to seat. SEC. 236. The certificate of election is prima facie evidence of the right to membership. [Amendment, approved March 30, 1874; Amendments 1873-4, 3; took effect July 6, 1874.] The certificate may be revoked by the governor for fraud: Morlon v. Daily, 2 Cong. El. Cas. 402; or may be issued on a supplementary return: Sleeper v. Rice, 1 Id. 472. The inability to obtain a certificate by reason of the refusal of the governor to issue it will not de stroy the right to the membership: Clement's Case, Id. 366. Contesting elections: See post, secs. 273 et seq. Qualification of members: See Const. Cal., art. 4, sec. 7. 237. Secretary, clerk, and sergeant-at-arms to hold until successors elected. SEC. 237. The secretary of the senate, and clerk of the assembly, the minuteclerks, and sergeant-at-arms of each house, for any session, must, at the next succeeding session of the body, perform the duties of their offices until their successors are elected and qualified. 238. Senate, organization of. SEC. 238. At the hour of twelve o'clock м., on the day appointed for the meeting of any regular session of the legislature, the president of the senate, or in case of his absence or inability, then the senior member present, must take the chair, call the members and members elect to order, and then cause the secretary to call over the senatorial districts, in their order, from which members have been elected at the preceding election; and as the same are called the members elect must present their certificates, take the constitutional oath of office, and assume their seats. The senate may thereupon, if a quorum is present, proceed to elect its officers. Oath-As to the form of the oath, see article 15, section 3, constitution of California; and with regard to the time when members of the 239. Assembly, organization of. legislature may take the oath, see section 906, post. Quorum: See Const. Cal., art. 4, sec. 8. SEC. 239. At the time specified in section two hundred and thirty-eight, the clerk of the assembly, or in case of his absence or inability, then the senior member elect present, must take the chair, call the members elect to order, and then call over the roll of counties in alphabetical order; and as the same are called the members elect must present their certificates, take the constitutional |