I dissent. Section 1492 provides that upon the production of the affidavit of due publication of the notice to creditors, the court must make an order showing that due notice to creditors has been given. Section 2010 of the Code of Civil Procedure, provides that the affidavit may be made by the printer of the newspaper, his foreman or principal clerk. It is obvious that the notice to creditors here referred to, the due publication of which must be proven by the affidavit, is the notice published in a newspaper not less than once a week for four weeks, as provided in section 1490 of the Code of Civil Procedure. The decision of the court is that notwithstanding the express and plain provisions of section 1492, the court need not make the order as there directed, and indeed must not do so, unless it is shown that another provision of the law has been complied with, a provision not contained in or referred to in section 1492, and not made a condition of or essential to a compliance therewith. The result is that the court holds that by enacting section 1491a, the legislature has amended section 1492 without re-enacting it or publishing it at length as amended, or referring to it in the title of the amending act, all of which is in direct violation of section 24, of article IV of the constitution of California.
It is true, this point is not made by either party. But our probate law is already too much complicated by unnecessary requirements and notices. Further essentials should not be imposed, unless the statute providing them is clear, direct, and valid, even if counsel fail to notice the defect. An act passed by the legislature without complying with these commands of the constitution is beyond its constitutional powers and void for any purpose. As the new section 1491a could not, in view of the constitutional prohibition, have the effect of amending section 1492 without re-enacting and publishing the latter at length, I conceive it to be our duty to hold that it does not qualify section 1492 at all, and that the court must make the order as there provided and directed, upon proof of the publication alone. If section 1491a is inoperative, it is the fault of the legislature. *Page 748