People v. Nally

By Crockett, J.,

Rhodes, J., concurring: The first section of the Act of March 28, 1874, (Statutes 1873-4, p. 755), directed a vote to be taken of the qualified electors of Siskiyou county, whether a certain portion of Klamath county should be annexed to Siskiyou. If a majority of votes should be in the affirmative, the Act provides that Klamath county shall be abolished, and a portion of its territory shall be annexed to Siskiyou, and the remainder to Humboldt county. It is claimed on behalf of the relator, that this was a delegation of legislative power to the people of Siskiyou, and that for this reason the Act is unconstitutional and void.

Whilst it is undoubtedly true that there is a considerable conflict in the authorities on the questions whether an Act of the Legislature, which is to take effect or not, as it may be determined by the popular vote, is a delegation of the law making power, I think the weight of authority in this State and elsewhere, fully supports the negative of the proposition, and especially in respect to local statutes.

In this case, the only proposition submitted to a popular vote was whether a portion of Klamath should be annexed to Siskiyou county, and if the vote was in the affirmative, then the county of Klamath was to be abolished and its territory annexed to Siskiyou and Humboldt counties, in the manner provided in the Act. The case, therefore, presents the naked question whether an Act annexing a portion of one county to another, and which is to take effect only in the event that a popular vote of one of the counties is in favor of the annexation, is a delegation of legislative power. It is to be observed that the Act related to a matter of purely local concern, in which the people of the district to be affected by it, were alone interested. In this respect it differs materially from the Local Option Liquor Law, so called, which was involved in Ex parte Wall, 48 Cal. 278. In that case the question was whether a statute authorizing a general law to be suspended in certain political subdivisions of the State, by a vote of the people of the district, was a delegation of legislative power. However the rule may be in that class of cases, it is settled, I think, by an overwhelming weight of authority in this and many other States, that in matters of purely local concern, it is competent for the Legislature to enact that a statute affecting only a particular locality shall take effect on condition that it is approved by a vote of a majority of the people whom the Legislature shall decide are those who are interested in the question. In Upham v. The Supervisors of Sutter County, 8 Cal. 379, the question was, whether an Act authorizing the location of a county seat, to be determined by a popular vote, was unconstitutional on the ground that it was a delegation of legislative power; and the Act was held not to be obnoxious to this objection. In Hobart v. The Supervisors of Butte County, 17 Cal. 23, the same objection was urged against an Act which authorized the Supervisors to issue bonds of the county in exchange for certain railroad bonds, in the event that the issuing of the bonds was first approved by a popular vote. Justice Baldwin, in delivering the opinion of the Court, after carefully collating and examining the authorities, comments upon the distinction between local and general laws in this particular; and holds that, however the rule may be in respect to the latter, there can be no doubt that a purely local statute may be made to take effect on condition that it is approved by a vote of those to be affected by it. Similar views were expressed by Mr. Justice Field, speaking for the Court, in Blanding v. Burr, 13 Cal. 343. In Robinson v. Bidwell, 22 Cal. 379, a statute authorizing county bonds to be issued, if approved by a popular vote of the electors of the county, was held to be only a law to take effect on the happening of a future event, and not a delegation of legislative power. So far as I am aware, the legal proposition decided in these cases, has never been denied or questioned by any adjudication of this Court, unless it be in Ex parte Wall, before adverted to. But, as already stated, the statute considered in that case, authorized a general law to be suspended in a particular district, on a vote of the electors of the district; whereas in the present case, a local statute is made to take effect on the happening of a future event, to-wit: a vote by the people who were deemed to be affected by it. As we have seen, statutes of this character have been uniformly sustained by this Court, and I may add, by numerous decisions of other Courts of high authority.

The legal proposition involved in the case is not affected by the fact that the electors of Siskiyou county only were required to vote on the question of annexation. The Legislature decided that there were sufficient reasons for abolishing Klamath county, and annexing a portion of its territory to Humboldt, and it may be that all or a majority of the voters of these counties petitioned the Legislature to that effect. But, entertaining a doubt whether the annexation of a large portion of the territory to Siskiyou county, accompanied with a condition that it should assume a corresponding proportion of the debt of Klamath, would not impose a hardship on the people of Siskiyou the question of annexation was submitted to the electors of that county only, whose interests," in the opinion of the Legislature, might be injuriously affected by the proposed change.

I am, therefore, of opinion that the application for a peremptory writ of mandate ought to be denied, and it is so ordered.