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ton, one hundred and eighty-three miles; to San Quentin, two hundred and thirty-one miles.

197. Trinity.

SEC. 197. From the county seat of Trinity county to Sacramento, two hundred and seventeen miles; to Napa, two hundred and seventy-eight miles; to Stockton, two hundred and sixty-five miles; to San Quentin, three hundred and thirteen miles.

198. Tulare.

SEC. 198. From the county seat of Tulare county to Sacramento, two hundred and eleven miles; to Napa, two hundred and seventy-two miles; to Stockton, one hundred and sixty-three miles; to San Quentin, two hundred and forty-nine miles.

199. Tuolumne.

SEC. 199. From the county seat of Tuolumne county to Sacramento, one hundred miles; to Napa, one hundred and sixty-one miles; to Stockton, sixtysix miles; to San Quentin, one-hundred and sixty-six miles. [Amendment, approved February 15, 1878; Amendments 1877-8, 2; took effect sixtieth day after passage.]

200. Ventura.

SEC. 200. From the county seat of Ventura county to Sacramento, three hundred and ninety-two miles; to Napa, three hundred and forty-seven miles; to Stockton, four hundred miles; to San Quentin, three hundred and twenty miles.

201. Yolo.

SEO. 201. From the county seat of Yolo county to Sacramento, twenty miles; to Napa, forty-one miles; to Stockton, sixty-eight miles; to San Quentin, ninetytwo miles.

202. Yuba.

SEC. 202. From the county seat of Yuba county to Sacramento, fifty-two miles; to Napa, one hundred and thirteen miles; to Stockton, one hundred miles; to San Quentin, one hundred and forty-six miles.

203. Mileage.

SEC. 203. When mileage is allowed by law to any person, the distance must be computed as herein fixed. [Amendment of entire title, approved April 3, 1876; Amendments, 1875-6, 3; took effect immediately; repealed conflicting acts.]

The original title was founded upon the following statutes: 1858, p. 256; 1861, p. 39; 1864, pp. 306, 154, 476; 1868, pp. 562, 563. Mileage allowed members legistature: See post, sec. 266.

Same as to lieutenant-governor: See post, sec. 397.

Mileage allowed other officers: Secs. 3793, 3876.

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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.

SEC. 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 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

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

officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office are exercised: 1. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be; 2. Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like; 3. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; 4. Under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to

be such."

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. 567; Cummings v. Clarke, 15 Vt. 653. An officer 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 Íd. 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, 28 Cal. 21; and in Stratton v. Oulton, Id. 44. And it was in the first of those decisions held to be no defense to the disbursing officer to say, in a proceeding by the de jure officer to recover the salary, that the salary had been paid to the officer de facto. Other states, recog nizing the principle that the salary follows the one legally entitled to the office, yet maintain that where payment thereof has been made to the incumbent, the remedy is in a suit by the de jure against the de facto official: People v. Miller, 24 Mich. 458; Dolan v. Mayor, 68 N. Y. 274; McVeany v. Mayor, 80 Id. 185; Comstock v. Grand Rapids, 40 Mich. 397; Mayfield v. Moore, 53 Ill. 428; Memphis v. Woodward, 12 Heisk. 499; Commissioners of Saline Co. v. Anderson, 20-Kan. 298. But see the recent decision in New Jersey: Stuhr v. Curran, 44 N. J. L. 181; S. C., 25 Alb. L. J. 382, where such a suit was not sustained.

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.'

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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; Eqnery v. Buchanan, 5 Id. 63; Weaver v. Fairchild, 50 Id. 360; Sill v. Reese, 47 Id. 294.

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Legislative officers: See secs. 225, post, et Executive officers: See secs. 341, post, et

seq.

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CHAPTER II.

LEGISLATIVE OFFICERS.

ARTICLE I. DESIGNATION, TERM OF OFFICE, AND ELECTION OF MEMBERS..

II. MEETING AND ORGANIZATION OF THE Legislature....

225

235

III. NUMBER, DESIGNATION, ELECTION, AND APPOINTMENT OF OFFICERS AND EM-
PLOYEES OF THE LEGISLATURE...

....

245

IV. POWERS AND DUTIES OF OFFICERS AND EMPLOYEES OF THE LEGISLATURE... 252 V. COMPENSATION OF MEMBERS, OFFICERS, AND EMPLOYEES OF THE LEGISLATURE. 266 VI. CONTESTING ELECTIONS FOR MEMBERS OF THE LEGISLATURE.. 273 VII. CONTESTING ELECTIONS FOR GOVERNOR OR LIEUTENANT-GOVERNOR.......... 288 VIII. ATTENDANCE AND EXAMINATION OF WITNESSES BEFORE THE LEGISLATURE AND

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NUMBER, DESIGNATION, TERM OF OFFICE, AND ELECTION OF MEMBERS OF THE
LEGISLATURE.

225. Number and designation.

SEC. 225. The legislature consists of: 1. Forty senators; and,

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

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 har mony 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. tions or future contingencies. To say that the 409; Dorsey v. Dorsey, 37 Md. 64; Lanier v. legislators may deem a law to be expedient, proGallatas, 13 La. Ann. 175; Lawson v. Jeffries, vided the people shall deem it expedient, is to 47 Miss. 686; Atkinson v. Dunlap, 50 Me. 111; suggest an abandoninent of the legislative funcSparhawk v. Sparhawk, 116 Mass. 315; Dorr's tion by those to whose wisdom and patriotism Case, 3 R. I. 299. Its powers are distinctively the constitution has intrusted the prerogative legislative; and this power to make laws it can- of determining whether a law is or is not expehot delegate: Ex parte Wall, 48 Cal. 279; Up- dient. Can it be said in such case that any ham v. Supervisors, 8 Id. 378; Iloughton v. member of the legislature declares the prohibi Austin, 47 Id. 646; Willis v. Owen, 43 Tex. 41; tion or enactment to be expedient? State v. Swisher, 17 Id. 441; State v. Parker, The legislature has no more right to refer such 26 Vt. 362; People v. Collins, 3 Mich. 343; State a question to the whole people than to a single

proper, with reference either to present condi

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: O. & 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. Su pervisors, 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.' 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."

His

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 Íd. 160; Berry v. Baltimore R. R'y Co., 41 Md. 446; Commonwealth v. Jackson, 5 Bush, CS0; People v. Hurlburt, 24 Mich. 44; Legg v. An napolis, 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 amend ment, 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,' 93 66 'Eminent Domain," and the like.

Number of members: Const. Cal., art. 4,

sec. 5.

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