Chapter 13: The California Constitution of 1879 was Unlawfully Repealed
Based on the work of Thomas Marvin Maxwell, I decided to investigate further, the idea that the California Constitution had been repealed in sections and discovered that part of the Constitution which had been repealed directly affected our rights as far as the use, sale and production of drugs was concerned. I traced this entire episode piece by piece from the clues provided by Maxwell, and this next chapter is what I came up with, in preparation for this book.
The following is extracted from California Law Review, VOL. VI NOVEMBER, 1917 Number I, The California Constitutional Convention of 1878-9 –
“Several attempts had been made prior to 1878 to obtain a constitutional convention. The success of the later effort was due to a general belief in the defects of the constitution of 1849 and to special local conditions. These special conditions, more-over, deeply impressed themselves upon the new organic law. An enumeration of the chief defects of the older constitution will be of aid. 1. The matter of taxation. The constitution of 1849 was particularly devoid of tax regulations; the legislature’s power was practically unrestricted. Two quotations from the debates in the convention of 1878 will exemplify the prevailing unrest.’ “This was the only question that was advocated in the calling of this convention …It was to make taxation equal and uniform that we were sent here; and for no other purpose.” .. ”I say that this question of taxation is what has brought this convention together in a great measure. That and the Chinese trouble have been two great motive powers that have brought this Convention together.” Taxes were believed to bear oppressively upon the poor and the farmers. 2. On the subject of finance the old constitution was silent. The legislature might regulate at pleasure; funds and salaries were completely under their control. 3. There was no control over the legislature’s relation to the public domain and the property of the state. 4. No provision had been made for separate senatorial and assembly districts, whereby the people might be represented by districts. These four points, it can be seen, were based on a distrust of the legislature. As we shall see later, this distrust can be observed both in the debates and in the finished document. As one member said: 2 “It is true that there is a widespread sentiment among the people, opposed to legislation generally.” This sentiment, which seems actually to have existed, was due both to some bad legislation by preceding legislatures and to skillful exaggeration by clever politicians. Commenting on the legislature under the old constitution, Bancroft says: 3 “The case was this; that the whole political duty and power of the people under it was to vote into place the men who would legislate away their substance-the constitution gave them no remedy.” 5. The tyranny of the corporations, especially the railroads. This argument appealed particularly to the farmers. The unrestricted pardoning power of the governor. 7. The incongruity of the old constitution, alleged with good reason to have been copied from the constitutions of the agricultural states, with the natural, commercial, and political condition of the country. This plea, says Bancroft, was “much exaggerated.” 8. The judicial system was unsatisfactory; the courts were overcrowded and decisions were not reported.
“There had been some years prior to 1878 a strong farmers’ organization in California, which elected a United States Senator in 1873. This party, known as the Independents, had been largely recruited from the Republican ranks. As a result of popular nominations by the Republican Party in 1875, and the return of a large number of its members to that party, the Independent vote suffered a large decrease in that year. Following the organization in 1877 by Dennis Kearney of the Workingmen’s party, to be considered shortly, many of the Independents cast their lot with the new organization.”
“In 1877 and 1878 California was suffering from “hard times.” This was aggravated by the collapse in mining stocks, which from a value of three hundred million dollars in 1875 had fallen to thirty million dollars in 1878. The hard times ‘prepared the public mind to accept any change which promised the recovery of the state from the depression into which business had been thrown.’ The hard times undoubtedly resulted in throwing out of work a large number of men, who would naturally congregate in the larger cities. At such times agitation finds a very fertile field. But to the normal discontent of a period of idleness, for which such men were in no way responsible, was added the fact that a large number of Chinese were being employed at lower wages than the white laborers felt they could decently afford to accept. It is probable that in time the presence of the Chinese laborers would have resulted in action by the national government; but at this time it was an immediate cause of the formation of the Workingmen’s party, largely instrumental in causing the convention of 1878 to be called.
“Dennis Kearney, a laboring man of rare personality and strength, was in California at the time. His remarkable oratorical powers gave him great influence among the workers; nor did he fail to criticize Governor Stanford and the other capitalists, particularly those employing Chinese, in the bitterest terms. By his opponents Kearney was characterized as developing into “a violent revolutionist,” while his friends termed him the ‘great and efficient apostle of the laboring classes of California.’ Kearney was the moving spirit in organizing the Workingmen’s party, sometimes termed the “sand-lot group.” Its power in San Francisco was enormous, and in some other portions of the state it was very strong. Although somewhat socialistic and communistic in their ideas, the members were on the whole moderate in their demands in the convention.
“This movement was not an exclusively Californian affair. It was but a phase of the widespread feeling, especially in the western part of the country, which brought about such movements as the Grangers’ party and the Greenback party, during the last quarter of the nineteenth century. Nor are such movements and efforts without real value, though their immediate results maybe small and transitory. They often act, at least for a few years, as reformers of the greater parties; moreover, they give us an insight in many cases into the deeper feelings and thoughts of the great masses of the electorate. Thus it is quite probable that the California convention turned out a constitution which more nearly represented the thoughts of the people of California of that day, particularly the workers and farmers, than would have been the case had not the Independent party and the Working-men’s party of California been in existence.
“Strange as it may seem, there were in the Convention relatively few denunciations of the Workingmen’s party either as an organization or as a principle. As there was, however, much opposition throughout the State to this movement and as a partisan organization it rapidly declined, a consideration of some of the remarks made concerning the Workingmen’s movement will be of some interest.
“Mr. Barnes, for instance, stated that the greater part of the militia force should be located in San Francisco, where there was the greatest need for it. That city was the hotbed of the Workingmen’s party and the accompanying agitation. Mr. Shafter, former Speaker of the Assembly in Wisconsin and Secretary of State in Vermont, referred to the ‘coarseness (of language) of Kearney’ and to his ‘virulence.’ He referred to the Workingmen in San Francisco as ‘a mob, utterly incapable of reason, already heated to the point of threatening the lives and property of quiet men and good citizens.’ At another time he said that ‘ignorance and violence’ were undertaking to rule the state. Mr. Stuart, leader of the pro-Chinese element in the State, referred to ‘fear of the torch that is daily threatened us.’ What truth, if any, there was in the allegation of intimidation we do not know. He again refers to ‘a few insane foreign and alien leaders of a party in San Francisco, who are deceiving their followers, and will cause want and distress in their wake. All such upheavals and excitements are but of short life and barren of good results, and soon to be forgotten.’ More temperate and more logical was Mr. Winans: ‘A new party has arisen in this State. It contains many agitators, many demagogues, many men who are selfishly seeking their personal advancement. But these are the mere scum upon the surface, while beneath lies a vast seething mass of human suffering’.”
Con’t: “The most important changes made in the new constitution centered around the power of the legislature and the position it should occupy. As previously stated, there had been much opposition to and fear of previous legislatures. As we should naturally expect, we find bitter criticisms of specific legislatures and of the theory of legislative power in the debates in the convention. The results are shown in the finished document submitted to the people for ratification. One of the last acts of the convention was an address to the people of California, pointing out the merits of the constitution and asking that it be ratified. In this address, adopted by a vote of one hundred and three to thirty, these statements were made as to the changes made which affected the legislature: ‘For many years the people of this State have been oppressed by the onerous burdens laid upon them for the support of the government, and by the many acts of special legislation permitted and practiced under the present Constitution. Its provisions have been so construed by the Courts as to shift the great burden of taxation from the wealthy and non-producing class to the labourers and producers.’ ‘The only restriction upon a Legislature is the Constitution of the State and of the United States. It, therefore, becomes necessary that State Constitutions should contain many regulations and restrictions, which must necessarily been larged and extended from time to time to meet the growing demands of the sovereign people.”
“When we consider the Constitution itself we find that the Convention carried out very fully its expressed belief that a Constitution should contain ‘many regulations and restrictions’ upon the legislature. Perhaps the chief positive restriction upon the legislature was the prohibition of special legislation in the future; all legislation was to be general. Some thirty-three specific restrictions were placed on the Legislature in addition to a number of general or implied restrictions.”
“Previous legislatures had been but little restricted; special and local laws of all kinds had been passed, and there was much distrust of the legislators and dislike of many of the laws they had framed. Thus, Mr. Caples referred-3 2 to ‘that great radical evil’ of special legislation. ‘The records of former Legislatures show that more than two-thirds of all the time consumed had been consumed in special legislation.’ Mr. Larkin remarked that: ‘Under this (new) Constitution none but general laws will be considered by the Legislature.’ He predicted that this would expedite business and secure better bills. Mr. White said: ‘We are about to do away with special legislation. Out of seven hundred laws in these volumes there are five hundred and odd of them which are local laws.’ And Mr. Laine noted that ‘Four-fifths of the legislation has been upon local matters.’ Two other remarks indicate the general feeling. Thus Mr. Hale said that attempts at legislative control of corporations had proved abortive for fifteen years, while Mr. Vest said ‘I cannot say what freaks the Legislature may take’.”
“As adopted, the Constitution provided that in thirty-three numerated cases ‘the legislature shall not pass local or special laws.’ Among the most important were (2) ‘for the punishment of crimes and misdemeanors’; (10) ‘for the assessment or collection of taxes’; (11) ‘providing for conducting elections, or designating the places of voting, except on the organization of new counties’; (15) ‘refunding money paid into the State Treasury’; (33) ‘in all other cases where a general law can be made applicable’.”
“Interesting debates took place on the question of prohibition of the extension of state credit, the prohibition of grants to religious societies by the Legislature and sub-divisions of the State, and on the capacity of the Legislature to provide for orphan and old folks’ homes. One speaker cites some of the notorious special laws previous legislatures had passed. Lobbying was made a felony both as to the lobbyist and the guilty legislator. It was further sought to safeguard the public by this provision: ‘The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise’.”
“Another speaker claimed that the appeal for few terms was in the interests of the corporations,’ as so much of the attention of the sessions would be taken up with the election of United States Senators that there would not be left the time ‘necessary to protect the people against the power of corporations.’ In addition to the restrictions upon the legislature previously noted, it was provided that no bill should be introduced during the last ten days of any session without the consent of two-thirds of the members. This was designed to prevent hasty legislation. It was proposed by others, but defeated, to limit the number of days during which pay could be drawn, as it was thought that this would prevent ill-advised and hasty legislation at the close of the sessions.’
“As an oddity may be noticed the following amendment declared out of order, offered by Mr. Beerstecher:
“’There shall be no legislature convened from and after the adoption of this Constitution, in this State, and any person who shall be guilty of suggesting that a Legislature be held, shall be punished as a felon without the benefit of clergy’.”
“Enough has been noted to indicate clearly that the prevailing sentiment was one of distrust of the legislature. As Bryce remarks ‘Little hope was entertained of securing the election of honest men.’ It was believed that it would be dangerous to bestow upon the legislature the complete power of making laws. There was an attempt to cover in minute detail the matters of defining the laws the legislature was prohibited to enact and of defining the laws which it was ordered to place upon the statute books. The Constitution resembled a series of statutes rather than an organic law. The legislature was to be restricted wherever possible.”
“The motive force of most of the political ideas contained in the new constitution was distrust of the legislature, a belief that the economic ends desired could only be obtained by making it impossible for the legislature to thwart the will of the people. Indeed, in its ‘Address to the State,’ the Convention specifically says: ‘The power of the legislature has been restricted in every case where it would be safe to do so, in respect to the enacting of local or special laws.’ The result was that the new law was in reality a code, one which could not be altered by every legislature. Specifically, the laws were designed to aid the workers and the farmers. Express regulations of the judiciary, taxation, corporations, etc. were placed directly in the Constitution to bind the legislature. The judiciary was improved, the power of amendment somewhat simplified, free public education was provided, but the important ideas from a political standpoint are the changes in municipal government and the restrictions on the legislature, by leaving it practically nothing to do but carry out the provisions of the Constitution. – California Constitutional Convention of 1878-9 – Noel Sargent – California Law Review, VOL. VI NOVEMBER, 1917 Number I (1)
On Nov. 7, 1966, California voters passed Prop. 1a which radically reformed the legislature in California. The people were not made aware of the fraud that was being perpetrated upon them. The following text explains the events leading up to this. It is extracted from an article titled California’s Legislature from the http://www.leginfo.ca.gov/ website.
The Constitution of 1879
“The Constitution of 1879 was adopted at a convention at Sacramento on March 3 of that year, by a vote of 120 to 15. The draft of the proposed Constitution was submitted to the electors on May 7, 1879, at which time the voters ratified the convention’s action, adopting the new Constitution by a vote of 78,406 to 67,492.18
“The new document fixed the membership of the Legislature at the current 80 Assembly Members and 40 Senators. Insofar as it related to the election of officers, the commencement of their terms in office, and the meeting of the Legislature, the new Constitution became effective at 12 m. on July 4, 1879. In all other respects, the effective date of the Constitution was 12 m., January 1, 1880.
“A Declaration of Rights, not unlike the Federal Bill of Rights, is set forth in the State Constitution, in which the principle embodied in the Constitution of 1849 is reaffirmed: ‘‘All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.’’
“California’s historical position with regard to the federal government is stated as follows: ‘‘The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.’’
“By reason of subsequent amendments, this Constitution has been altered considerably from the original document of 1879. A total of 583 amendments had been proposed by the Legislature and by the people through the initiative from 1880 through 1962. Of these, 334 were adopted by the voters.
(1)https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=4066&context=californialawreview
Con’t: “This haphazard and unbridled growth led the Legislature in 1963 to the conclusion that our Constitution had to be revamped. The Legislature felt that it was replete with unnecessary detail, inconsistent provisions and material that could more properly be contained in the statutes. To remedy this situation they created the Constitution Revision Commission and directed it to make recommendations to the Legislature. While the ensuing acceptance of many of the commission’s recommendations by the Legislature and the people significantly reduced the size of the Constitution, it remains a lengthy and detailed body of law.”
(The article goes on to provide a table of amendments since 1879 and in the year 1894, there is a footnote which follows: “A proposed amendment to the Constitution, Statutes of 1893, Chapter 34, p. 657, was declared invalid by the Supreme Court (Livermore v. Waite, 102 Cal. 113) and was not placed on the ballot; therefore, it is not included in the proposed total for 1894.) (2)
I decided to look this case up and instead of finding Livermore v Waite, I found an even better case which supports Livermore v Waite from 1948, McFadden v. Jordan, 32 Cal.2d 330 in the Supreme Court of California, wherein the Court ruled that an Amendment which sought to revise or repeal the Constitution was unconstitutional since it attempted to circumvent the procedures set forth in article XVIII, section 2 of the California Constitution. The following is the first part of the opinion of the case:
“As will appear from the text which follows, the issues raised by the answers and by the motion to strike are immaterial in relation to the ground of our decision, and, hence, are not discussed in detail. From an examination of the proposed measure, itself, considered in relation to the terms of our Constitution as now cast, we find it clear beyond question that, as urged by petitioner, the proposed initiative enactment amounts substantially to an attempted revision, rather than amendment, of our state Constitution; and that inasmuch as the Constitution specifies (art. XVIII, § 2) that it may be revised by means of a constitutional convention but does not [32 Cal. 2d 332] provide for revision by initiative measure, the writ must be granted.” – McFadden v. Jordan [S. F. No. 17775. In Bank. Aug. 3, 1948.]
In Livermore v. Waite (1894), 102 Cal. 113, 117-119 [36 P 424, 25 L.R.A. 312], this court declared:
“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 instrument, 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. [The provision for amendment by initiative was added in 1911, art. IV, § 1.] [32 Cal. 2d 333] 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 of 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 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 … 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.
(2) http://www.leginfo.ca.gov/pdf/caleg2.pdf
Con’t: “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.” (See also 5 Cal.Jur. § 11, pp. 559-560; 16 C.J.S. § 7, pp. 30-31; 11 Am.Jur. § 25, p. 629.)
[3] The initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, § 1) applies only to the proposing and the adopting or rejecting of “laws and amendments to the Constitution” and does not purport to extend to a constitutional revision. That amendment was framed and adopted long after the decision in Livermore v. Waite [32 Cal. 2d 334] (1894), supra, 102 Cal. 113. [4] By well-established law it is to be understood to have been drafted in the light of the Livermore decision. (See 50 Am. Jur. §§ 321, 322, pp. 312, 313.) As said in Estate of Moffitt (1908), 153 Cal. 359, 361 [95 P. 653, 1025, 20 L.R.A.N.S. 207], ‘[A] familiar and fundamental rule for the interpretation of a legislative statute is that it is presumed to have been enacted in the light of such existing judicial decisions as have a direct bearing upon it.’ (See also, to the same effect, In re Halcomb (1942), 21 Cal. 2d 126, 129 [130 P.2d 384], and cases there cited.) [2b] It is thus clear that a revision of the Constitution may be accomplished only through ratification by the people of a revised constitution proposed by a convention called for that purpose as outlined hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed “the measure”) now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention, and the writ sought by petitioner should issue. (See Livermore v. Waite (1894), supra, 102 Cal. 113.) [5] Mandamus is a proper remedy. (Gage v. Jordan (1944), supra, 23 Cal. 2d 794, 800, and cases there cited.)
“As previously mentioned the Constitution as now cast contains 25 articles divided into 347 sections. It is apparent that in mechanical composition the sections of the proposed measure correspond to articles of the Constitution and subsections of the measure to sections of the Constitution. Comparison of the provisions of the measure with those of our present Constitution indicates that the measure will, or under conceivable circumstances may, affect at least the following articles and sections of, and will add at least the following new subjects to, the present Constitution, all as respectively indicated:
“1. Article I of our present Constitution is entitled ‘Declaration [32 Cal. 2d 341] of Rights.’ Inasmuch as the measure (§ I) declares that ‘This article may be cited as ‘California Bill of Rights’ “ a misleading and confusing conflict in terminology of titles and related subject matter appears at the outset. 2. To what extent, if any, the present Declaration of Rights might be affected by the proposed blanket repeal of any portion of the present Constitution which ‘is in conflict with any of the provisions of’ the new measure we do not now undertake to determine. Section 25 of article I, however, which has to do with public fishing rights in state public lands and waters, would appear to be at least enlarged upon by section X of the measure, which also treats of ‘Fish, Game, Public Lands and Waters’; section VIII of the measure also relates to, although it may not substantially alter, the rights declared in sections 9 (Liberty of Speech and of the Press) and 10 (Right to Assemble and to Petition) of article I.
“To recapitulate, at least 15 of the 25 articles contained in our present Constitution would be either repealed in their entirety or substantially altered by the measure, a minimum of four (five, if the civic center provision be deemed new) new topics would be treated, and the functions of both the legislative and the judicial branches of our state government would be substantially curtailed.
Con’t: “Our review of the subjects covered by the measure and of its effect on the totality of our plan of government as now constituted does not purport to be exhaustive. It is amply sufficient, however, to demonstrate the wide and diverse range of subject matters proposed to be voted upon, and the revisional effect which it would necessarily have on our basic [32 Cal. 2d 346] plan of government. The proposal is offered as a single amendment but it obviously is multifarious. It does not give the people an opportunity to express approval or disapproval severally as to each major change suggested; rather does it, apparently, have the purpose of aggregating for the measure the favorable votes from electors of many suasions who, wanting strongly enough any one or more propositions offered, might grasp at that which they want, tacitly accepting the remainder. Minorities favoring each proposition severally might, thus aggregated, adopt all. Such an appeal might well be proper in voting on a revised constitution, proposed under the safeguards provided for such a procedure, but it goes beyond the legitimate scope of a single amendatory article. There is in the measure itself no attempt to enumerate the various and many articles and sections of our present Constitution which would be affected, altered, replaced, or repealed. It purports only to add one new article but its framers found it necessary to include the omnibus provision (§ XII, subdiv. (7)) that ‘If any section, subsection, sentence, clause or phrase of the constitution is in conflict with any of the provisions of this article, such section, subsection, sentence, clause or phrase is to the extent of such conflict hereby repealed’.”
“Intervenors concede that, ‘In an initiative which has as broad a purpose as the ‘California Bill of Rights,’ many sections of the present Constitution are bound to be affected in some measure,’ but they urge that ‘The inclusion of several apparently unrelated subjects in a proposed constitutional amendment does not require the use of the method of revision set forth in article XVIII, section 2, of the Constitution to the exclusion of the use of the initiative provisions of the Constitution.’ To support their argument intervenors rely upon Wright v. Jordan (1923), 192 Cal. 704, 711 [221 P. 915]; Epperson v. Jordan (1938), 12 Cal.2d 61, 68-69 [82 P.2d 445]; and Brown v. Jordan (1938), 12 Cal.2d 75, 77-78 [82 P.2d 450]. But those cases do not undertake to determine that a substantial constitutional revision may be accomplished through the medium of a single initiative amendment. They hold, merely, that the express requirement of section 1 of article XVIII of the Constitution that, in the case of constitutional amendments proposed by the Legislature, ‘Should more amendments than one be submitted at the same election, they shall be so prepared and distinguished, by numbers or [32 Cal.2d 347] otherwise, that each can be voted on separately,’ does not apply to amendments proposed under the initiative process. In none of those cases did the proposed initiative enactment effect such extensive alterations in the basic plan and substance of our present Constitution, or at all approximate in coverage the variety of additional subjects or separate fields of governmental activity, as the measure now before us would encompass; and in none of those cases was the effect of section 2 of article XVIII, dealing with revision of the Constitution, mentioned.
“Intervenors concede also that ‘When our Constitution was framed different procedures were provided for amendments and revisions, and therefore some distinction between the two must have been contemplated.’ Certainly it cannot be solemnly announced as a general rule of thumb that an initiative measure which would affect all the articles of the Constitution would constitute a revision thereof, whereas a measure which would affect all except one (or all, less two-fifths) of the articles would thereby be reduced to the status of an amendment. Yet that is, in substance, the position taken by the intervenors. They urge that if any less than all sections of the Constitution are altered, and if any less than all old sections are discarded, the change is merely an amendment. We cannot accept such an arbitrary and strained minimization of difference between amend and revise. The differentiation required is not merely between two words; more accurately it is between two procedures and between their respective fields of application. Each procedure, if we follow elementary principles of statutory construction, must be understood to have a substantial field of application, not to be (as argued in intervenors’ Answering Memorandum) a mere alternative procedure in the same field. Each of the two words, then, must be understood to denote, respectively, not only a procedure but also a field of application appropriate to its procedure.
Con’t: “The people of this state have spoken; they made it clear when they adopted article XVIII and made amendment relatively simple but provided the formidable bulwark of a constitutional convention as a protection against improvident or hasty (or any other) revision, that they understood that there was a real difference between amendment and revision. We find nothing whatsoever in the language of the initiative amendment of 1911 (art. IV, § 1) to effect a breaking down of that difference. On the contrary, the distinction appears to be [32 Cal. 2d 348] scrupulously preserved by the express declaration in the amendment (particularly in the light of the Livermore case as noted, supra) that the power to propose and vote on ‘amendments to the Constitution’ is reserved directly to the people in initiative proceedings, while leaving unmentioned the power and the procedure relative to constitutional revision, which revisional power and procedure, it will be remembered, had already been specifically treated in section 2 of article XVIII. Intervenors’ contention–that any change less than a total one is but amendatory–would reduce to the rubble of absurdity the bulwark so carefully erected and preserved. Each situation involving the question of amendment, as contrasted with revision, of the Constitution must, we think, be resolved upon its own facts. A case might, conceivably, be presented where the question would be close and where there would be occasion to undertake to define with nicety the line of demarcation; but we have no such case or occasion here.
(Next we read what the proposed initiative was effecting)
Con’t: “The delegation of far reaching and mixed powers to the commission, largely, if not almost entirely in effect, unchecked, places such commission substantially beyond the system of checks and balances which heretofore has characterized our governmental plan. It will be remembered that the measure prescribes no qualifications for holding the office of commissioner, other than that the person ‘shall have been an elector of this state for two years next preceding his election’; he is, as of absolute right, eligible for re-election; the commission, itself, may fill vacancies for unexpired terms; it has unlimited powers to propose and submit ‘amendments’ to the ‘article’; every sentence and clause of our Constitution in conflict with the article is to ‘the extent of such conflict’ repealed; the commission is given practically uncontrolled power over the funds collected, including, apparently, the substantially absolute power to give ‘reimbursement or compensation for expenses incurred by’ a ‘volunteer worker in a political campaign’; the commission is given power to issue subpoenas and, apparently, to punish for contempt and subject persons ‘to the same penalties as if such disobedience or false swearing occurred in an action in the superior court.’ The governor, the Legislature, and the courts are made powerless to remove a commissioner for any cause, or directly ‘to interfere with the effectiveness or operation of this article,’ apparently as construed by the commissioners; or, without approval by a vote at a general election ‘subsequent [32 Cal. 2d 349] to 130 days after such decision or order shall become final,’ to enforce ‘any decision or order’ of a court ‘in any action or proceeding in law or equity’ ‘which adversely, or at all, either affects this article or the administration thereof or affects the submission, by the pension commission, of any proposed amendment to this article.’
“Applying the long established law to any tenable view of the facts which have been related, it is overwhelmingly certain that the measure now before us would constitute a [32 Cal. 2d 350] revision of the Constitution rather than an amendment or ‘such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purposes for which it was framed.’ (Livermore v. Waite (1894), supra, 102 Cal. 113, 118-119.) Indeed, as has been shown in some detail, the effect of adoption of the measure proposed, rather than to ‘within the lines of the original instrument’ constitute ‘an improvement or better carry out the purpose for which it was framed,’ would be to substantially alter the purpose and to attain objectives clearly beyond the lines of the Constitution as now cast. Consequently, as is established by the Livermore case and by the other authorities cited hereinabove, such a revised Constitution, as a single measure, may be submitted to the electorate only after it has been ‘agreed upon’ by a constitutional convention called pursuant to the provisions of section 2 of article XVIII of the present Constitution.
“It is to be noted that intervenors, in their reply memorandum, urge that the initiative amendment (Cal. Const., art. IV, § 1) should in some way be construed to ‘give the people’ the power to initiate directly a revision of, as well as amendments to, the Constitution. But intervenors actually do not seek to initiate the constitutional procedure for a revision (see art. XVIII, § 2) by proposing through the initiative a measure calling a constitutional convention; rather do they seek to by-pass the convention altogether, thus setting up a wholly new and constitutionally unauthorized procedure for revision. They argue that there may be ‘a frustration of the will of the people by the legislature’ through its neglect to call an authorized constitutional convention. It should be obvious to intervenors that if a Legislature is not responsive to the will of the people, it lies in the power of the people to replace the members of that Legislature. But whatever may be the rights of intervenors here, or of other groups, to initiate proceedings looking toward the end of a constitutional revision through authorized procedure, we are satisfied that the basic method of revision prescribed by article XVIII–revision through a constitutional convention (however called) and a subsequent vote of the people on the proposed revised Constitution–does not purport to be dispensed with, alternatively or otherwise, by section 1 of article IV, reserving the power to propose, and prescribing generally, the procedure for bringing to a vote, “laws and amendments to the Constitution.” [32 Cal. 2d 351]
– McFadden v. Jordan – [S. F. No. 17775. In Bank. Aug. 3, 1948.] (3)
Not only are Amendments not authorized to revise or repeal the Constitution, but after reading through this case in its entirely, it appears that Prop 1a does not fit the description of a ”amendment” to the Constitution. I looked up the case being discussed and so far cannot find Livermore v Waite, but found several references, among them one from the California Jurisprudence book from 1922 in which it discusses changes to the Constitution via amendment:
Adoption and alteration of Constitutions
Section 7. General Principles – The significance of the term “amendment” as applied to a constitution 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 if its principles. So, too, some popular wave of sociological reform may induce a legislature to submit for enactment, in the permanent form of a constitution prohibition, a rule which has the power itself to enact as a law, but which might be of only temporary effect. The former constitution of California provided for its own entire revision through a movement initiated by the senate and assembly created by it. Article XVIII of the present 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 instrument, 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. Under the first of these methods the entire sovereignty of 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 organic law of the state. Section 1 provides that:
“Any amendment or amendments to this constitution may be proposed in the senate or assembly, and if two-thirds of all the members elected to each of the two houses shall vote in favor thereof, such proposed amendment or amendments shall be entered into the journals, with the yays and nays taken thereon; and it shall be the duty of the legislature to submit such proposed amendment or amendments to the people, in such manner and at such times., and after such publication, as may be deemed expedient.”
(3)https://law.justia.com/cases/california/supreme-court/2d/32/330.html
Section 2 provides that:
“Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to revise this constitution, they shall recommend to the electors to vote, at the next general election, for or against a convention for that purpose and if a majority of the electors voting at such election on the proposition for a convention shall vote in favor thereof, the legislature shall, at its next session, provide by law for calling the same.”
Section 9 – Legislative Action in proposing amendments.
“The power to propose an amendment to the constitution of California is vested in the two houses – senate and assembly – and if two-thirds of all the members elected to each of the two houses vote in favor thereof, it becomes the duty of the legislature to submit such amendment or amendments to the people. The cases are not in entire harmony on the question of the nature of the function performed by the legislature in proposing constitutional amendments. On the one hand it has been held that the proposing of amendments is not legislation in the sense of passing laws, but it is nevertheless the performance of a legislative function. On the other hand it has been said that in submitting propositions, 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. The extent of this power is limited to the object for which hit 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, without the consent of the people, constitutionally expressed. 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 proposition which, if adopted, would by the very terms in which it is framed, be inoperative.
Section 10 – Submission to vote of people.
“As has been stated, the proposal of a constitutional amendment by the legislature is not the ordinary enactment of a law, and with such proposal the governor has nothing to do. Such act is that of two-thirds of each branch of the legislature. But the matter of submitting the proposed amendment or amendments to the vote of the people is quite different. That is to be done by the legislature, by a law to that effect, and in the enactment of a law the governor is a part of the law-making power. The act fixes the time when such proposed amendment is to be submitted, and such act does not require the concurrence of two-thirds of each branch of the legislature; but, to make it a law, does require the approval of the governor, or, in the event of his disapproval and veto of the bill, its enactment in the manner provided in the constitution. It is clear, therefore, that, if there is no law respecting the submission of the amendment to the vote of the people, no duty is incumbent upon the governor to issue a proclamation calling an election on the amendment. There is no constitutional objection to the passage of a general act concerning the time and manner of submitting constitutional amendments to the vote of the people. And where such an act exists, it is therefore not necessary that an amendment should be submitted specifically by the legislature proposing it. General provisions regarding the submission of constitutional amendments to the voters of the state are contained in the Political Code. The manner in which such amendments shall be printed on the ballot, advertised and voted upon at the polls are all subjects of statutory regulations, and are considered in another article.”
Section 11 – Strictness as to Procedure
“The constitution can neither be revised nor amended except in the manner prescribed by itself and the power which it has conferred upon the legislature in reference to proposing such amendments must be strictly pursued. Such power, being a delegated power, is to be strictly construed under the limitations by which it has been conferred, for the rule is settled that when power is given to do a thing in a particular way, by implication all other ways are forbidden. It has therefore been held that the legislature is 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 of such persons of some specific act or condition.
Formalities – Section 1 of article XVIII of the constitution provides that proposed amendments shall be entered in the journals of the senate and assembly, with the yays and nays taken thereon. It is now well established that the journals need not be entered in the journal at length, but it is sufficient if entered by identifying reference to title and number.
Presumption as to passage and ratification – The certificate of the secretary of state showing the adoption of an amendment is conclusive of the fact that the same was duly ratified. And where the bill itself, with its endorsements thereon, shows that it was properly enrolled, authenticated and deposited with the secretary of state as having been properly passed by the legislature, the journal cannot be looked to to rebut or set aside presumption that the amendment was properly passed.”
(California Jurisprudence: A Complete Statement of the Law and …, Volume 5, Pages 554-61.) (4)
From 1897 up until 1964, all of these following actions were taken to use initiatives or amendments to revise the constitution. All done by the legislature, not the people. The following was extracted from the book on California Jurisprudence again:
“In 1897, the Legislature adopted Senate Concurrent Resolution 4, statutes of 1897, Chapter 35, p. 650, calling for a convention to revise the Constitution. The proposal appeared on the 1898 ballot, but as it did not propose to amend any specific article of the Constitution, it is not included in the proposed total for 1898.
Two proposed amendments to the Constitution, Statutes of the Extraordinary Session of 1900, Chapters 6, 10, pp. 26, 29, were declared invalid by the Supreme Court (People ex rel Attorney General v. Curry,130 Cal. 82) and were not included in the proposed total for1900.
In 1913, the Legislature adopted Assembly Concurrent Resolution 17, Statutes of 1913, Chapter 75, p. 1714, calling for a convention to revise the Constitution. The proposal appeared on the 1914 ballot, but as it did not propose to amend any specific article of the Constitution, it is not included in the proposed total for 1914.
In 1933, the Legislature adopted Assembly Concurrent Resolution 17, Statutes of 1933, Chapter 45, p. 3002, calling for a convention to revise the Constitution. The proposal appeared on the 1934 ballot, but as it did not propose to amend any specific article of the Constitution, it is not included in the proposed total for 1934.
In 1936, an initiative constitutional amendment was invalidated by the Supreme Court (Clark v. Jordan, 7 Cal. 2d 248) and it did not appear on the ballot; therefore, it is not included in the proposed total for 1936.
“Two amendments, one each in 1920 and 1930, were adopted by the Legislature, calling for constitutional conventions by amending Article XVIII of the Constitution. Neither of these amendments were adopted by the people, but as they did appear on the ballot and proposed the amendment of an article of the Constitution, they are included in the proposed totals for the respective years. An initiative constitutional amendment, adding Section 26 to Article I, was approved by the electorate at the Nov. 3, 1964 general election, but was subsequently declared unconstitutional both by the California Supreme Court and the United States Supreme Court (Mulkey v. Reitman, 64 Cal. 2d 529; Reitman v. Mulkey, 387 U.S. 369). This amendment appears in both the proposed and adopted totals for 1964.”
(4)https://books.google.com/books?id=GaUxAAAAIAAJ&pg=PA560&lpg=PA560&dq=Livermore+v.+Waite,102+Cal.+113&source=bl&ots=Ug5FR648R0&sig=ACfU3U22IQ-g-dkHPTJmZwHkfSamcOCEJA&hl=en&sa=X&ved=2ahUKEwj3p8nstM_kAhXQJjQIHVd8DvoQ6AEwBXoECAgQAQ#v=onepage&q&f=false
Now we return again to the same article on the California legislature in which it continues to discuss the events which changed the process in California.
Constitution Revision Commission
“Until 1962, California’s Constitution could be revised extensively only by means of a constitutional convention. Article XVIII, Section 1, made provision for amendment, but that provision apparently indicated something less than a comprehensive constitutional revision. In 1960, the Legislature, acting upon the recommendation of an interim committee, adopted a constitutional amendment providing for revision of the Constitution, i.e., by complete or partial changes. Previously, amendments could provide only specific or limited changes in the Constitution. This amendment was approved by the people in 1962 by more than a two-to-one vote.
(Ed. Note: All done in violation of the Constitution)
The Legislature, in the 1963 First Extraordinary Session, adopted a concurrent resolution establishing the Constitution Revision Commission under the Joint Committee on Legislative Organization. By the terms of the resolution, the commission was to consist of not more than 50 citizen members appointed by the Joint Committee on Legislative Organization, three Members of the Senate appointed by the Senate Committee on Rules, three Members of the Assembly appointed by the Speaker, and the members of the Joint Committee on Legislative Organization, who were to serve as ex-officio members. In February 1966, the commission made its initial report to the Legislature. Revisions of Articles III, IV, V, VI, VII, and XXIV of the Constitution, dealing with the legislative, executive, and judicial branches of government and the civil service system, were recommended. Constitutional revision was placed on ‘‘special call’’ during the 1966 First Extraordinary Session and the commission’s proposals, with the exception of those affecting Article XXIV, were introduced in the form of Assembly Constitutional Amendment 1335 and subsequently passed by the Assembly and Senate. Placed on the November 8, 1966, ballot as Proposition 1-a, it was approved by the people by a vote of 4,156,416 to 1,499,675.
The revised Article IV effected a number of important substantive changes relative to the legislative branch of government:
“Under former constitutional provisions, the Legislature met in general session during odd-numbered years and in budget session during even-numbered years. The amendment eliminated the budget session and provided for regular annual sessions of unspecified duration. Prior to this time, the Legislature could meet for a period not to exceed 120 days, excluding Saturdays and Sundays, during the odd-numbered years; nor for more than 30 days, exclusive of a recess no longer than 30 days, during the even-numbered years. The adoption of Proposition 1-a in 1966 removed these limitations.”
“Compensation for Members of the Legislature had been set at $500 per month since 1954 and could not be altered except by constitutional amendment. Pursuant to additional provisions of Proposition 1-a, a 1966 statute initially set the Members’ salaries at $16,000 per year. The Legislature further was permitted to set its own compensation by a two-thirds vote of each house. Increases of more than 5 percent per year could not be passed for each calendar year following the operative date of the last adjustment, and such increase was subject to the Governor’s veto and the initiative and referendum processes. No salary adjustment was operative until the beginning of the regular session commencing after the next general election following the enactment of the statute making the adjustment. In this manner, all Members of the Assembly and at least one-half of the Senators who voted for an increase in compensation could not benefit from it unless they were reelected after they had voted for or against such increase. Related to the commission’s recommendation was the passage of Assembly Bill 173 of the 1966 First Extraordinary Session. The provisions of this bill, contingent on the adoption of Proposition 1-a, established a legislative conflict-of-interest law and enacted provisions governing travel expenses and retirement benefits for legislators. This bill also provided that Members of the Legislature are entitled to living expenses at the same rate established for other elected state officers by the State Board of Control. The amendment reduced the signature requirement for initiative statute petitions from 8 to 5 percent of registered voters but retained the 8-percent requirement for constitutional amendments.
“Changes in the executive article included, among others, authority for the Governor to reorganize the executive branch of government and permission for the Legislature to provide for gubernatorial succession by statute. Article VI, relating to the judicial branch, also underwent revision. Retaining the requirement of a superior court in each county, the revision permitted the Legislature to provide, with the concurrence of the board of supervisors of the affected county, that one or more superior court judges be selected to serve in more than one county. Municipal court judges are required to have been members of the California State Bar for at least five years immediately preceding their appointment. The other state court judges (superior, appellate and Supreme Court judges) require membership in the California State Bar for 10 years immediately preceding their appointment. Unopposed incumbent judges of trial courts (superior, municipal and justice) in the state need not have their names printed on the ballot. (5)
From what we just read, it appears that the 1962 Amendment set the precedent for what happened in 1966 in the November election. So, the question next would be, was the 1962 amendment lawfully passed and if so, does it have any affect since it includes revision and repeal? Well, if Proposition 1-a was not done according to Article XVIII of the California Constitution and given a convention AFTER the people voted for it, it appears that it was done unconstitutionally. The legislature is supposed to provide an act for the passage of the amendment and then submit it to the people, not through the governor. Then, if the people vote to approve it, it is given a convention for that purpose. And we can see clearly that the legislature has been attempting for some time, to take power away from the people and give it to themselves, unlawfully. What they did exactly was this. They titled the ballot Proposition 1a as “CONSTITUTIONAL REVISION. Legislative Constitutional Amendment.” In other words, they used both Revise and Amend in the same heading and they mean, as we have already learned, two completely different things and they require completely different rules to bring into effect.
Now let’s return to the ballot initiative in California in November of 1966. Here is what the voters were given. The header:
CONSTITUTIONAL REVISION. Legislative Constitutional Amendment (Notice: there is no number)
Repeals, amends, revises various provisions of Constitution relating to separation of powers, and to the legislature, executive, and judicial departments; provides for annual general legislative sessions; provides compensation of members of Legislature shall be prescribed by statute passed by two-thirds vote, and limits rate of annual future adjustments; Legislature must enact laws. Legislature must enact laws prohibiting members from engaging in conflicting activities. Signatures necessary on petition for initiative statute reduced from 8% to 5%; eliminates initiatives to Legislature. Legislature shall provide for the succession to the office of Governor in event of disability or vacancy.
The header reveals a little. So let’s read the “Detailed Analysis by the Legislative Counsel”:
“This measure would revise portions of the State Constitution dealing with the separation of powers and with the legislative, executive, and judicial departments of state government. Some provisions, mainly procedural, would be transferred to statutes enacted at the 1966 First Extraordinary Session. The major changes made by the measure would include the following:
Legislative
“The Legislature now meets in general session, at which all subjects can be considered, in odd-numbered years. It meets in budget sessions, at which only fiscal matters may be considered, in even-numbered years. Both sessions are of limited duration. Under this measure the Legislature would meet in annual general sessions, unlimited as to duration and unlimited as to subjects that could be considered.
(5) http://www.leginfo.ca.gov/pdf/caleg2.pdf
“Salaries and expenses by legislatures would be set by statute passed by a two-thirds vote in each house, rather than by the Constitution, provided: (a) beginning in 1967, an increase in salary could not exceed 5% for each year following the last adjustment; and (b) an increase could not apply until the commencement of the regular session following the next general election after enactment of the increase. Any increase in the legislature’s salary over the present $500 per month could not be used in computing the retirement allowance of a member unless he receives the greater amount while serving as a Member of the Legislature.
The Legislature would be required to enact conflict of interest legislation applicable to legislatures. Impeachment proceedings would be extended to cover additional elective officers of the state.
“Section 3566 of the Elections Code requires the Legislative Counsel to prepare an impartial analysis of measures appearing on the ballot. The number of signatures needed for an initiative petition for enactment of a statute would be reduced from 8 to 5 percent of the votes cast at the last election for Governor; however, the signature requirement for an initiative constitutional amendment would remain unchanged. Provisions for the submission of initiative petitions to the Legislature would be eliminated.
Executive
“The age requirement for the office of Governor would be lowered to 21 years of age. The measure would make various technical changes in the pardoning and clemency powers of the Governor. Provisions setting minimums for statutory salaries of certain elective state officers would be deleted. Provision would be made for determining questions of succession to the governorship and temporary disability of Governor. The Legislature could authorize certain executive reorganizations.
Judiciary
“When authorized by law a judge would be permitted, on agreement of the counties, to serve the superior courts of two or more counties. The experience required for judges of superior and higher courts would be increased. The Legislature could provide that the names of unopposed incumbent judges need not be placed on the ballot for any trial court in the state, rather than only for superior courts in counties of 700,000 population or more. The automatic suspension of judges charged with a felony or recommended for removal by qualifications commissions would be required. A superior or municipal court judge would be required to take a leave of absence without pay when seeking other public office.
Argument in Favor of Proposition No. 1-a.
“We support the proposed revision of the State Constitution and urge all Californians to vote YES on Proposition 1-a.
EDMUND G. “PAT” BROWN
Governor of the State of California
RONALD REAGAN
RICHARD J. DONOVAN
Judge, Municipal Court
San Diego Judicial District
(Former Member of the Assembly. 77th District)
Argument in Favor of Proposition No. 1-a
“One of our most crucial needs in these times is effective government – based on a modern Constitution.
“Yet, concerning the California Constitution, former State Supreme Court Justice Phil S. Gibson has stated:
“(Our Constitution is) … cumbersome, unelastic, and outmoded… It is not only much too long, but it is almost everything a Constitution ought not to be.”
“California’s Constitution is hardly modern. It is the third longest Constitution in the world and has been amended over 300 times since 1879. In short, it is a mess. (Ed. Who’s fault is that? The Legislatures)
“In 1962, by more than a 2 to 1, the people mandated modernization of their Constitution. As a result, a blue-ribbon Constitution Revision Commission of 69 leading Californians was appointed to recommend a revised Constitution. These prominent citizens from all walks of life worked without pay for three years and spent thousands of hours at their task.
“The result is Proposition 1-a. It is the first phase of the Commission’s work. It covers approximately one-third of the existing Constitution, and reduces that one-third from 22,000 to 6,000 words.
“The reforms in Proposition 1-a have been labeled by party leaders and non-partisan groups alike as essential to the effective operation of government.
“Proposition 1-a puts the Constitution into modern, concise and easily understandable language.
“The changes in the legislative, executive and judicial article would include machinery, with adequate safeguards, to remove a Governor from office if he is proven unable to carry on his duties; judges would be under stronger disciplinary procedures and the practice of running for political office while still a judge would be curtailed; and the Legislature would meet annually to consider all problems confronting California.
“In keeping with increased time demands on the Legislature, proposition 1-a removes salary provisions frozen in the Constitution and ratifies a new compensation plan with careful controls and strict regulations regarding the outside activities and income of legislators.
“The fundamental weapons available to California’s citizens to combat abuses by their government officials – the initiative, the referendum and the recall—have been carefully preserved.”
State government today faces new challenges and new responsibilities not dreamed of in 1879. This new Constitution helps to meet those challenges by making government itself more flexible and able to do the job which our citizens have a right to expect.
If states are to survive and prosper in our system, they need the tools of effective government – Proposition 1-a is a giant step toward that goal. California can lead the way. Vote YES on 1-a.
LUTHER E. GIBSON
State Senator Solano County
BRUCE M. SUMNER
Chairman, Calif. Constitution Revision Commission
Judge, Superior Court, Orange Co.
THOMAS . PITTS
(Exec. Secty. Calif. Labor Fed. AFL-CIO)
Member Calif. Constitution Revision Commission.”
Argument Against Proposition 1-a.
“As the only person who cast a negative vote in the Assembly on the Constitutional Revision program, under California law I am designated to submit the negative argument on Proposition 1-a. At the time the vote was taken in the Assembly, I was not opposed to this Proposition in its entirety; rather, I found fault with a few of its provisions which placed unrealistic restrictions on the Legislature. It would be unfair to those persons who are vigorously opposed to this program for broad and fundamental philosophical beliefs if I were to submit an argument which would express, as is the case, only minor reservations about this program of reform. Because of these considerations, I have delegated my responsibility for the negative argument to Senator John G. Schmitz (R-Orange County) whose statement follows:
“This Constitutional Amendment, if passed, would mark a significant departure from our traditional system of citizen legislators to fully paid, full time legislators.
“The passing of laws in a free country ought not to be a fulltime profession for anyone. When it becomes so, the country permitting it will not long remain truly free.
“We certainly need legal professionals in our courts, at the bar, and on the bench. We certainly need police professionals to enforce the law and protect the innocent. We may or may not need professional bureaucrats in other branches of government. But we do not need professional legislators.
“The men who founded our American system of government assigned the law-making responsibility to elected legislatures which were much closer to the people that either the executive or the judiciary. The executive and the judiciary were in the hands of professionals. The legislature was the people’s check on the appetite of government professionals for more and ever more power and money.
“PRESCRIBING LAWS WHICH OTHER PEOPLE ARE TO BE FORCED TO OBEY CAN NEVER BE A PRIMARY OCCUPATION FOR ANY MAN WHO LOVES LIBERTY.”
LEO J. RYAN
Assemblyman, San Mateo County (6)
Well, one would think that given as much space for the yays they would afford nearly as much space for the nays, but not in this case. Half the space was taken up telling the people why the first person selected for the job could not perform it. That doesn’t sound fair at all. The good Congressman WARNS US that “This Constitutional Amendment, if passed, would mark a significant departure from our traditional system of citizen legislators to fully paid, full time legislators.“ “The passing of laws in a free country ought not to be a fulltime profession for anyone. When it becomes so, the country permitting it will not long remain truly free.
(6)https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1694&context=ca_ballot_props
Interestingly, I found that Article VI, section 9 was added by this very Proposition 1-a, which reads:
“SEC. 9. The State Bar of California is a public corporation. Every person admitted and licensed to practice law in this State is and shall be a member of the State Bar except while holding office as a judge of a court of record. (Sec. 9 added Nov. 8, 1966, by Prop. 1-a. Res.Ch. 139, 1966 1st Ex. Sess.)
This is very good for people fighting their cases in court, if you elect to use it. The judge in the court of record is not allowed to be a member of the State Bar.
Remember that court case we just read through McFadden v. Jordan, Aug. 3, 1948? Look what happened just one year later. The legislature never gave up. They would not take NO for an answer.
Looking back into California’s Ballot initiative history on measures to be voted on, I can find several ballot initiatives in 1949 which attempt to “repeal” the Constitution.
* Ballot measure 2 – Aged and Blind Aid – Initiative Constitutional Amendment – Repeals Article 25 State Constitution
* Ballot measure 4 – Constitutional Provisions Relating to Local Government – Assembly Constitutional Amendment No. 66 – Repeals sections 7 1/2a, 8a and 8 1/2.
* Ballot measure 5 – Constitutional Convention of 1878-79 – Assembly Constitutional Amendment No. 67 – Repeals section 19 of article XX.
* Ballot measure 6 – Effective Date of 1933 Statutes – Assembly Constitutional Amendment No. 68 – Repeals section 1a of article IV.
* Ballot measure 8 – Constitutional Provision Relating to State Fiscal Affairs. – Assembly Constitutional Amendment No. 70 – Of two similar sections, each designated as section 22 of article IV of the Constitution, relating to State’s fiscal affairs, repeals one and amends the other to combine the provision of both.
* Ballot measure 9 – Constitutional Provisions for Adoption of 1879 Constitution – Assembly Constitutional Amendment No. 71 – Repeals sections 4-9 inclusive, of article XXII of Constitution relating to election upon question of adoption of 1879 Constitution.
* Ballot measure 10 – Repeal of Suspension Provision – Assembly Constitutional Amendment No. 72 – Repeals “inoperative” section 26a of article I of Constitution.
* Ballot measure 11 – Constitutional Provisions Regarding State Officers, Legislators and Judges – Assembly Constitutional Amendment No. 73 – Repeals or amends various sections of article IV, V, VI, IX, XX and XXII of Constitution. (7)
From what I can tell, the legislature felt that since it could not get an Amendment passed to get a Convention to revise or repeal the Constitution, they would pass an amendment which gave the voters a chance to revise and repeal the Constitution directly, through Amendment. But that was not lawful either without a Constitutional Convention. I suppose they didn’t think the people would catch on or that it would have to be challenged in court. The court had just given the decision of McFadden v. Jordan, in the previous year, so maybe the legislature felt they could just keep pushing initiatives on the voters in the form of “Assembly amendments” and through a war of attrition they would weigh the voters down and subvert the rights of all free Californians. Notice that every single one of these “amendments” except the first one is an “Assembly Amendment” and only the first one is a voter’s initiative. All others were introduced by the legislature and pushed down the people’s throats through newspaper and media propaganda. Maybe they were trying to set the precedent for an initiative means of revising and repealing and they would allow time to go by before the major assault on the Constitution would take place.
(7)https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1502&context=ca_ballot_props
In 1962, the voters passed Proposition 7, titled “CONSTITUTIONAL REVISION Amendment No. 14”
“Empowers Legislature to propose a revision of the Constitution to be voted on by the people. Provides that revision if approved by majority of electors voting shall be the Constitution or part of the Constitution if the revision revises only a part of the Constitution.” (8)
Article XVIII, section 2, which requires that all revisions or repealing take place according to the Constitutional Convention, it turns out, was not “repealed” until Nov, 8, 1970. Go figure. The Legislature has obviously been up to no good for a very long time. And this was their last needed step for covering their tracks.
Here is Alexander Hamilton’s position on legislation contrary to the Constitution being null and void, as quoted in the Federalist Papers:
“There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.” – Federalist No. 78 – Alexander Hamilton Publius | May 28, 1788
This next case presented is Billings v Hall (1857) which illustrates the point that an legislative act, if unconstitutional, is null and void:
“The provisions of the ‘Settlers’ Act’ of 1856, requiring the party recovering in ejectment to pay the defendant the value of his improvements, it seems, are not in violation of the provision of the Federal Constitution, prohibiting States from passing laws impairing the obligation of contracts. All questions of property are within the jurisdiction of the respective States, and the individual members thereof, in forming a government, are not considered as contractors with such government, in the sense employed in the Constitution of the United States.
“Under our form of government, the legislature is not supreme. It is only one of the organs of that absolute sovereignty of the people; like other departments of government, it can only exercise such powers that have been delegated to it, and when it steps beyond those boundaries, its acts, like those of the most humble magistrate in the state, who transcends his jurisdiction, are utterly void.”
“Chancellor Kent, who, in point of legal knowledge and learning, stands second to no American jurist, says: ‘The principle in the English government that the Parliament is omnipotent, does not prevail in the United States; though if there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power under any other form of government. But in this and all other countries where there is a written Constitution designating the powers and duties of the legislative as well as other departments of the government, an act of the Legislature may be void, as being against the Constitution. The law with us must conform, in the first place, to the Constitution of the United States, and then to the subordinate Constitution of its particular State, and if it infringes the provisions of either it is so far void.” –
1 Com., 449. BILLINGS v. HALL 7 Cal. 1 Jan. 1, 1857 – Supreme Court of California (9)
And from Smith v. Morse, 2 Cal 524 (1852):
“The Legislature may, from time to time, alter or change the remedy, provided they do not materially affect the right; but whenever they so far alter the remedy as to impair, destroy, change, or render the right scarcely worth pursuing, they necessarily impair the obligation of the contract upon which such right is founded.” (Verified)
(8)https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1656&context=ca_ballot_props
(9) https://cite.case.law/cal/7/1/
Here are a couple more; one from 1886 and the next from 1999:
“An unconstitutional act is not law; it conferred no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” – Norton v. Shelby County, 119 US 425 p. 442 (1886) (Verified)
“Under basic rules of construction, statutory laws enacted by legislative bodies cannot impair rights given under a constitution. 194 B.R. at 925.
In Re Young, 235 B.R. 666 (Bankr. M.D. Fla. 1999) (Verified) (10)
The following is from American Jurisprudence, on Unconstitutional Acts of the legislature:
“The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
“The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
“Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it…..
“A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” – 16 Am Jur 2d, Sec 177, late 2d, Sec 256
And my favorite one: “All laws which are repugnant to the Constitution are null and void.” – Marbury v. Madison, 5 U.S. 137, 174, 176 (1803)
(10) https://www.courtlistener.com/opinion/1856203/in-re-young/
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