Heydenfeldt, J., dissenting. This is an application for a mandamus to compel the Secretary of State, Treasurer, and Controller, to keep their offices at the town of San Jose, upon the allegation that it is the Seat of Government.
The Constitution, Art. XI, Sec. 1, fixes the Seat of Government at 'San Jose, but admits of its removal by law, provided such law is passed by two-thirds of all the members elected to each House of the Legislature.
In discussing the question here raised, it is first necessary to notice an Act of the last Legislature, by which the Respondents are required [33]to keep their offices at Sacramento, because it is contended that the «Constitution does not require these officers to transact the business of State at the Seat of Government. If Sacramento is not the Seat of Government, is this law constitutional ?
When the Constitution fixed a place by particular designation as the Seat of Government, and imposed a severe restriction upon its removal, ordinary common sense would lead us to conclude that it meant something; at the same time a universal rale of legal construction prohibits the inference that oar fundamental law had engrafted upon it a mere vain expression. The admitted rule in construing laws, is to give them the interpretation most consonant to the ordinary acceptation of the language used; and if the language, in conveying the intended, idea, is plain and unambiguous, it is not the subject of construction. What are we then to understand by the language which is in question ? I think, that by the term “ Seat of Government,” must be meant the place where the legislative and chief executive departments of the Government shall transact the business of State, and where the officers of these departments ought to be found by the citizen who is in search of them. It is indisputable that the policy of every government requires such a provision; so, when we find it plainly made in the State’s organic law, we would stultify oursel-ves to declare that it has no meaning, or cannot be enforced.
Moreover, to remove the Seat of Government requires a two-thirds vote of each branch of the Legislature. If, then, by a simple majority Saw, the officers of the various departments are required to keep their -offices at a place other than the Seat of Government, the practical effect is, to all intents and purposes, a removal of the Seat of Government from the place appointed by the Constitution; and the last is violated, not with the boldness of direct attack, but in a form which, when examined, vainly attempts to conceal its unlawful purpose.
This reasoning forces me to decide, that if Sacramento is not the Seat of Government, the Act which I have just reviewed is not warranted by the Constitution.
But, in order to sustain the case of the relators, it is not merely sufficient that Sacramento is not the Seat of Government. It must be shown that San Joso is; and I now come to the consideration of that question.
[34]The record in this case discloses the fact, that the law removing the Capital to Sacramento was not passed by a vote of two-thirds .of each House of the Legislature; so we are precluded from the necessity oí reviewing that Act, and are left to determine only upon the validity of the Act providing for the removal from San Jose to Yallejo. This latter Act has a proviso» which renders it void, unless a certain proposition made by General Vallejo is complied with. I suppose it will not be denied that if an act of legislation is to become a law only upon a certain condition, or is to be null and void in a certain event, a Judge, who has to pass upon it, must know the nature of the condition or event, in order to determine if the law is in force. Assuming this to be admitted, I propose to examine this law, and the proviso upon which its vitality depends, in order that I may find whether the motive or purpose of its enactment was of such character as to give it constitutional validity. It has been said that we cannot inquire into the motives of the Legislature in making a law, but this is not correctly stated for a legal proposition. The true rule is, that we cannot go behind the Act to do so. In this investigation I do not intend going behind the Act, but will judge it from what it bears upon its face.
I have alluded to the condition or event upon which, by its own terms, it depends for existence, and the necessity of knowing that condition or event, in order to determine if it be in force. I find it to consist of a proposal on the part of a private individual to give the State large amounts of money, and lands and houses, on condition that the Seat of Government of the State of California should be established at Vallejo. To this proposition the Legislature acceded, and passed the Act of removal, making it dependent upon payment and performance. In plain language, the location of the Seat of Government of the State was sold for a strictly pecuniary and commercial consideration, and the Act passed in consummation of the bargain.
If the Constitution had been without any limitation upon this subject, I might have hesitated longer in disputing the legitimacy of this exercise of power, because in that case the discussion would have to be confined to the policy of requiring a recognition of the doctrines of natural ethics in our legislation. But, whatever force this may have, (and I believe it sufficient,) we are not left to lean on a basis of metaphysics alone. The Constitution is not silent, and to me, its meaning [35]Is not doubtful. It fixed the Seat of Government in a place which the 'Convention deemed best for the transactions of the Government in its «relations with the interests of the governed', and when it conferred the power of removal, its plain intent must have been that the same object, «and no other, should be maintained.
The unbiased judgment of the legislators as to the proper place, Was all that was required of them, and all which they had the right to give. Every express power must, according to every system of law and morals, be so employed as to secure the highest perfection of the end which it contemplates. Wherever the Constitution delegates and limits a power or trust to the Legislature, there must be some purpose 5n the trust, and it ought to be executed so as to effect that purpose, and that must be the main thing kept in view. It is only necessary to look at this Act to discover that the object of the Constitution was iiever once entertained by the body which enacted it. The new place selected was to -be the Seat of Government by contract, if the price was paid. It Was not, in the deliberate judgment of the Legislature, the place most suitable for transacting the business of Government, because it was not to be so if the pnrchase money failed. After all the «care taken of, and importance ascribed to this question by the Convention ; after a place was solemnly agreed upon which was styled “ permanent,” and hasty and rash legislation guarded against by requiring two-thirds of all the members elected to each House to concur before a -change could be effected^ it is, notwithstanding, made a marketable -commodity, and dealt with as the subject of barter.
It has been said, that it is no harm for the Legislature to accept of private bounty for the benefit of the State. Certainly not, if that bounty is not received as a largess for the prostitution of its power. I will illustrate by a single example. The legislature has the power to create offices, and provide the manner for the appointment of officers. Suppose it provided for the appointment to office of those who would pay into the treasury the largest amount of money. This would be accepting private bounty for the State to the same effect as accepting Vallejo’s bounty for giving him the Capital. Yet I think this would be held unconstitutional by the Courts. IF not, we would have fallen upon evil times, for we would have reached the state of corruption [36]which marked the very worst eras of European governments, when the sale of offices was the crying infamy and oppression of the day.
And yet there is no provision in the Constitution which expressly prohibits it. Then, upon what ground would it be held invalid ? Simply upon the ground I have taken in this case; that the Constitution has a purpose; that this was not its purpose; that the judges, in construing it, are bound to declare its purpose, and to determine the invalidity of every Act which, upon its face, shows a violation of that purpose.
I have thus reached my conclusion, that San Jose is the Seat of Government, and dissenting from the majority, of the Court, I am in favor, upon the points here considered, of affirming the judgment of the District Court.