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the returns are received, or until the second Monday after said election, when they shall proceed to make out returns of the votes cast for and against the new constitution; and the proceedings of said boards shall be the same as those prescribed for like boards in the case of an election for governor. Upon the completion of said canvass and returns, the said board shall immediately certify the same, in the usual form, to the governor of the state of California.
SEC. 9. The governor of the state of California shall, as soon as the returns of said election shall be received by him, or within thirty days after said election, in the presence and with the assistance of the controller, treasurer, and secretary of state, open and compute all the returns received of votes cast for and against the new constitution. If, by such examination and computation, it is ascertained that a majority of the whole number of votes cast at such election is in favor of such new constitution, the executive of this state shall, by his proclamation, declare such new constitution to be the constitution of the state of California, and that it shall take effect and be in force on the days. hereinafter specified.
Terms of officers first elected.
SEC. 10. In order that future elections in this state shall conform to the requirements of this constitution, the terms of all officers elected at the first election under the same shall be, respectively, one year shorter than the terms as fixed by law or by this constitution; and the successors of all such officers shall be elected at the last election before the expiration of the terms as in this section provided. The first officers chosen, after the adoption of this constitution, shall be elected at the time and in the manner now provided by law. Judicial officers and the superintendent of public instruction shall be elected at the time and in the manner that state officers are elected.
Laws relative to judicial system.
SEO. 11. All laws relative to the present judicial system of the state shall be applicable to the judicial system created by this constitution until changed by legislation.
SEO. 12. This constitution shall take effect and be in force on and after the fourth day of July, eighteen hundred and seventy-nine, at twelve o'clock meridian, so far as the same relates to the election of all officers, the commencement of their terms of office, and the meeting of the legislature. In all other respects, and for all other purposes, this constitution shall take effect on the first day of January, eighteen hundred and eighty, at twelve o'clock meridian.
Attest: EDWIN F. SMITH, Secretary.
J. P. HOGE, President.
A. R. ANDREWS. JAMES J. AYERS. CLITUS BARbour. EDWARD BARRY. JAMES N. BARTON. C. J. BEERSTECHER. ISAAC S. BELCHER. PETER BELL. MARION BIGGS. E. T. BLACKMER. JOSEPH C. BROWN SAML. B. BURT. JOSIAH BOUCHER. JAMES CAPLES. AUG. H. CHAPMAN. J. M. CHARLES. JOHN D. CONDON. C. W. CROSs. HAMLET DAVIS. JAS. E. DEAN. P. T. DOWLING. LUKE D. DOYLE. W. L. DUDLey. JONATHAN M. DUDLEY. PRESLEY DUNLAP. JOHN EAGON. THOMAS H. Estey. HENRY EDGERTON. M. M. ESTEE. EDWARD EVEY.
J. A. FILCHER.
SIMON J. FARRELL.
ABRAHAM CLARK FREEMAN.
JACOB RICHARD FREUD.
J. B. GARVEY.
B. B. GLASSCOCK.
W. P. GRACE.
D. W. HERRINGTON.
JOHN FLEMING MONUTT
WILLIAM H. PROUTY.
E. O. SMITH.
JOSEPH R. WELLER.
J. V. WEBSTER.
JOHN P. WEst.
JOHN T. WICKES.
THORWALD KLAUDIUS NELSON. PATRICK M. WELLIN.
CHAS. C. O'DONNELL.
GEORGE OHLEYER. JAMES O'SULLIVAN. JAMES MARTIN PORTER. 74
WM. F. WHITE.
H. C. WILSON. Jos. W. WINANS. N. G. WYATT.
An Act to Establish a Political Code.
[Approved March 12, 1872.]
TITLE OF THE ACT.
1. Title and divisions of this act.
SECTION 1. This act shall be known as THE POLITICAL CODE OF THE STATE OF CALIFORNIA, and is divided into five parts, as follows:
PART I. OF THE SOVEREIGNTY AND PEOPLE OF THE STATE, AND OF THE POLIT-
II. OF THE CHIEF POLITICAL DIVISIONS, SEAT OF GOVERNMENT, AND
III. OF THE GOVERNMENT OF THE STATE.
IV. OF THE GOVERNMENT OF COUNTIES, CITIES, AND Towns...
PEAL OF STATUTES....
The four codes are four statutes; each is a single act: Earle v. Board of Education, 55 Cal. 489. The whole code is to be construed together as in the case of a single statute; and
amendments to any section thereof are to be regarded as amendinents of the whole act: C. P. R. R. v. Shackelford, 63 Id. 261.
Act how cited: See sec. 20, post.
2. When code takes effect.
SEC. 2. This code takes effect at twelve o'clock, noon, of the first day of January, eighteen hundred and seventy-three.
Effect of codes generally: See secs. 4478
3. Not retroactive.
ing that session are repealed, except acts amendatory of or carrying into effect the codes: Mitchell v. Crosby, 46 Id. 97.
Similar provision in other codes of Cal. ifornia: See sec. 2 thereof.
Effect of this code: See subsequent secs. 3-19, inclusive, and secs. 4478-4484, post.
Publication of the codes: See post, sec.
SEC. 3. No part of it is retroactive, unless expressly so declared.
Retroactive effect: See supra, note to sec- declared, but amendments to the code receive tion 2. Not only is the code to have a future
a similar construction, and are not retroactive:
operation, except where otherwise enpressly C. P. R. R. v. Shackelford, 63 Cal. 261; Sharp
v. Blankenship, 59 Id. 268; Hibernia S. & L. Soc. v. Jordan, 56 Id. 297.
What is an express declaration of an intention to give a section or amendment a retroactive operation must often rest on construction, as in applying a measure of damages to conversion committed before the measure was provided: Tulley v. Tranor, 53 Cal. 274; or determining what rate of interest prevailed upon the adoption of the code: Dunnev. Mastick, 50 Id. 244.
4. Construction of the Political Code.
Cited and applied to requirements in sections 1493 and 1500 of the Code of Civil Procedure, in regard to presentation of claims against decedents, in Hibernia S. & L. Soc. v. Hayes, 56 Cal. 297; so also in regard to the amend ment to section 325, Code of Civil Procedure, requiring payment of taxes to make a good adverse holding: Sharp v. Blankenship, 59 Id. 288; C. P. R. R. Co. v. Shackelford, 63 Id. 261. Impairing vested rights: See sec. 8, post, and note.
SEC. 4. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice.
This section changes the common-law rule which was in force in this state prior to the adoption of the codes: Hotaling v. Cronise, 2 Cal. 60; People v. Buster, 11 Id. 215; Turner v. Tuolumne Water Co., 25 Id. 397; Pina v. Peck, 31 Id. 359. See also the construction of this section in Estate of Appel, 5 West Coast Rep. 518.
The explanation for this departure from the common-law rule is found in the following statement by the code commissioners, appended as a note to section 4 of the Civil Code: "How ever sound may be the arguments in favor of this rule [the old rule] when applied to ordinary acts of the legislature, it is apparent that it would be improper to apply it in all its severity to a system of laws intended, in a great measure, to take the place of the common law, and having in view, as its leading object, the furtherance of justice and a disregard of technical strictness. The provisions of such a system ought to be construed in the same manner and with like force and effect as they would be were the principles enunciated resting in the unwritten law; and it was to this end that the section has been made a part of each of the codes." So also in their note to this same section, as found in the Code of Civil Procedure, the code commissioners, referring to the rule of strictly construing penal statutes and statutes in derogation of the common law, say: "Without stopping to inquire how far this principle is applicable to statutory provisions prescribing, for example, the time within which a particular act must be done (which was the case in the instance referred to), it certainly should not apply in all its severity to a system of regulation having in view as its sole object the furtherance of justice and a disregard of technical strictness. This is the great principle running
through all the provisions of this code. The chief design and the merit of the code, if it has any, is its attempt to make the attainment of justice the paramount object, and the use of forms mere auxiliaries, which, when they come in conflict with the ends of justice, are to be relaxed. This section was intended to obviate much of the difficulty under which courts have labored, and to render the code, instead of a rigid and unbending statute, as construed by some, a rule of procedure susceptible of easy adapation to the purposes of justice which it alone has in view. See the opinion of Justice Cope, Jones v. Steamship Cortes, 17 Cal. 487; see also Lucas, Turner & Co. v. Payne & Dewey, 7 Id. 92; Ward v. Severance, Id. 126; Chamberlain v. Bell, Id. 292."
A liberal rather than strict construction is also demanded by the Penal Code, section 4, evidencing the general design of the commissioners to abrogate the old rules of strict construction: Ex parte Gutierrez, 45 Cal. 429; People v. Mortimer, 46 Id. 117; People v. Soto, 49 Id. 67. But statutes in contravention of the common law are not to be extended by construction, as it is not to be presumed that the legis lature intended to make an innovation on the common law further than the case absolutely requires; Brown v. Fifield, 4 Mich. 322; Johnson v. Hahn, 4 Neb. 144.
A statute in affirmance of the common law is to be construed as was the rule by that law: Baker v. Baker, 13 Cal. 87.
With view to promote justice.-Applications of this clause: Paige v. Carroll, 61 Cal. 215; S. C., Id. 211.
Construction of codes with relation to each other, and reconciling conflicts between titles, chapters, and articles: See secs. 4478 et seq.
5. Provisions similar to existing laws, how construed.
SEC. 5. The provisions of this code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.
New enactments.-The codes were framed with a view to a complete system of law, designed, however, to disturb the existing state of things as little as possible, and not to impair vested rights. The foregoing section is one of several expressive of this design. It has been considered in connection with the succeeding
section with reference to the effect of the codes upon tenure of office: People v. Bissell, 49 Cal. 407, the inspector of gas meters' case. See also sec. 18, infra.
Revival by repeal. "The Political Code contains a general provision that the repeal of existing statutes shall not revive any law here
tofore repealed or suspended, nor any office heretofore abolished, and therefore such a provision has not been incorporated herein: See
6. Tenure of office.
People v. Craycroft, 2 Cal. 243:" Code Commissioners' note. The section referred to is section 18.
SEC. 6. All persons who, at the time this code takes effect, hold office under any of the acts repealed, continue to hold the same according to the tenure thereof, except those offices which are not continued by one of the codes adopted at this session of the legislature, and excepting offices filled by appointment. [Amendment, approved March 30, 1874; Amendments 1873-4, 3; took effect July 6, 1874.
See next section, and note.
7. Construction of repeal as to certain officers.
SEC. 7. When any office is abolished by the repeal of any act, and such act is not in substance re-enacted or continued in either of the four codes, such office ceases at the time the codes take effect.
The legislature can abolish or change an office created by it, and it may extend or abridge the terms of its incumbents at pleasure, unless forbidden by the state constitution: In re Bulger, In re Merrill, 45 Cal. 553; Christy v. Sacramento, 38 Id. 3; Attorney General v. Squires, 14 Id. 12; McDaniel v. Yuba, Id. 444; People v. Banvard, 27 Id. 470; People v. Ilaskell, 5 Id. 357; Perkins v. Corbin, 45 Ala. 103; Benford v. Gibson, 15 Id. 521; Augusta v. Sweeney, 44 Ga. 463; People v. Lippincott, 67 Ill. 333; Opinions of Justices, 117 Mass. 603;
8. Actions, etc., not affected by this code.
Kendall v. Canton, 53 Miss. 526; French v. Commonwealth, 78 Pa. St. 339; Territory v. Pyle, 1 Or. 149; People v. Green, 58 N. Y. 295; Conner v. New York, 2 Sandf. 355; State v. Douglas, 26 Wis. 428; Cooley's Const. Lim., secs. 226, 277. Notwithstanding the term of an office may have expired by virtue of the foregoing sections, yet the incumbent holds until his successor has qualified as directed by section 879 of this code: People v. Bissell, 49 Cal. 407. Repeals by implication: See sec. 18, post, and note.
SEC. 8. No action or proceeding commenced before this code takes effect, and no right accrued, is affected by its provisions, but the proceedings therein must conform to the requirements of this code as far as applicable.
Effect of codes on pending action. The sufficiency of proceedings taken before the code went into operation must be determined by the law in force then, and by no other rule: Caulfield v. Doe, 45 Cal. 221, 223; Hancock v. Thom, 46 Id. 643. The procedure upon a motion for a new trial, notice of which had been given before January 1, 1873, was required to be according to the practice act then in force: Macy v. Davila, 48 Id. 647; but the procedure upon such motion where the notice had been served after the codes went into effect was determined to be that prescribed by the code: Kelly v. Larkin, 47 Id. 58. A similar construction has been given to the insolvency law of California of 1880. Strutven v. Creditors, 62 Id. 45, decides that although the proceedings in insolvency may have been commenced under the act of 1852, yet all pleadings filed after the passage of the new act must conform to its requirements. The evident object of the section is, not to interfere with any vested rights, and to render uniform so far as may be the course of procedure in pending proceedings. McMinn v. Bliss, 31 Id. 122, illustrates what this section was designed to obviate. The act repealing the forcible entry and detainer laws was by a subsequent enactment altered so as not to affect actions commenced under the repealed law. As a general rule, the procedure is governed by the new law: Bishop's Written Law,
Vested rights. It is an admitted principle that vested rights cannot be destroyed or im
paired; but to state a precise rule, defining what rights are vested, is a task of some difficulty. The various decisions present illustrations of what have fallen within the meaning of the term, but few have attempted a comprehensive definition. As Cooley truly says: "In its application as a shield of protec tion, the term 'vested rights' is not used in any narrow or technical sense, or as importing a power of legal control merely, but rather as implying a vested interest which it is right and equitable that the government should recog nize and protect, and of which the individual could not be deprived arbitrarily without injustice:" Cooley's Const. Lim. 358. The following general statement is believed to be supported by adjudged cases: To render a law obnoxious to the objection that it impairs vested rights, it is not necessary that the act of the legisla ture should import an actual destruction of the right. The test is not so much in the extent of the change as in the character thereof. If the act postpones or accelerates the period of performance of a contract, imposing conditions not expressed therein, or dispensing with any of those stipulated, it is within the prohibition: Green v. Biddle, 8 Wheat. 1; McCracken
v. Hayward, 2 How. 608; Planters' Bank v. Sharp, 6 Id. 301; Walker v. Whitehead, 16 Wall. 314; Lapsley v. Brashears, 4 Litt. 47; Edmonson v. Ferguson, 11 Mo. 344; Winter v.
Jones, 10 Ga. 190; Townsend v. Townsend, 1 Peck. 1; Robinson v. Magee, 9 Cal. 81; People y. Pond, 10 Id. 563; McAuley v. Brooks, 16 Id.