People v. Bircham

Baldwin, J., after stating the facts, delivered the opinion of the Court—Terry, C. J., concurring.

The judgment in this case being the property of the State, could be released by the Legislature in such form and on such conditions as.it chose to prescribe. Whether the Court of Sessions could constitutionally exercise the power of making this release, it is not necessary to inquire, though, if it chose to act in the matter, it is not easy to see why its discharge of a mere ministerial function of this sort would not be valid. But by the statute of 1855, Boards of Supervisors throughout the different counties were constituted, and, by the 25th section of the Act, it is provided that such Board “ shall have and exercise in its county all jurisdiction and powers other than criminal, conferred by any law on the Court of Sessions, as heretofore exercised by said Court, under any statute or by any statute provided to be exercised by said Court, where the same does not conflict with the provisions of this Act.”

It was evidently intended by this statute to transfer from the Courts of Sessions to the Boards of Supervisors the general and special powers and duties of a civil character which had before the Act been vested in the former Courts. It was not the design, in this manner, to repeal any law, general or special, before existing ; but as, under the decision of Burgoyne v. The Supervisors, (in 5 Cal.) a question of the constitutionality of those laws which conferred duties and powers, not of criminal cognizance, was made, the Legislature meant to remove [55]the difficulty by transferring all these functions to the Boards of Supervisors. The language of the Act is so express as to leave no doubt that this particular power was meant to he included.

It is said that the Act for the relief of Bircham did not sufficiently define this particular recognizance. But this was a question of identity, and we think the Court below was well warranted in its finding.

It is also urged that the Act of 1854 was void, because the Court of Sessions could not constitutionally exercise the'function committed to it, and, therefore, the general Act of 1855, already quoted from, transferring the powers before given by law to the Courts of Sessions to the Boards of Supervisors, is not to be construed to embrace such powers. But this would do away with the whole effect in this respect of the Act of 1855 ; for all the Acts giving these civil powers to the Court of Sessions are exposed to the same objection. We do not see, however, why the Legislature may not use or refer to an Act unconstitutional in itself to indicate its will in respect to a constitutional purpose. The question is, at least, a question of legislative intent, and this intent may be accomplished by a reference to an unconstitutional Act, as a means of giving or transferring a power. This was very clearly done by the Act of 1855, which referred to these Acts, not for the purpose of giving them validity as they stood, but for the purpose of divesting these Acts of their supposed unconstitutional features, and lodging the same powers in different hands. This is not to validate void Acts, but to make Acts, void because the powers were misplaced, valid for the future, by placing those powers in constitutional hands. It seems to us that this suggestion is an answer to the argument, even upon the very liberal concession that the Act of 1854 was unconstitutional—a concession made only for the convenience of the argument.