Franklin v. State Board of Examiners

Crocker, J. delivered the opinion of the Court—Norton, J. concurring, and Cope, C. J. concurring specially.

This is an application for a mandamus to compel the defendants to audit and allow a claim to the bounty of five dollars per month afiowed by the Act of April 27th, 1863, entitled “ An Act for the Relief of the Enlisted Men of the California Volunteers in the Service of the United States.” The Court below refused the mandamus, and the plaintiff appeals.

The respondents contend that the act in question violates the eighth article of the State Constitution, and is therefore void. The portion of the article applicable to the present case reads as follows: “ The Legislature shah not in any manner create any debt or debts, liability or liabilities, which shall singly or in the aggregate with any previous debts or liabilities, exceed the sum of $300,000, except in case of war, to repel invasion or suppress insurrection,” etc., etc. The act in question provides for the creation of a debt which may amount to $600,000 ; and it is admitted that the indebtedness of the State, at the time of the passage of the law, greatly exceeded [175]the constitutional limit of 1300,000. These facts would render the act invalid, unless it is saved by the exception in Art. 8.

It is contended by the appellant, that the present condition of the nation is evidence that the exigency exists provided for by the exception, and, therefore, the act is valid; while, on the other hand, the respondents insist that there is nothing in the condition of our ¡National affairs which authorizes the law. In arguing this question, various constructions of this exception have been suggested. One is, that the power of the Legislature to create debts is unlimited only in cases where a war exists in the State, or where there is an invasion or threatened invasion of the State; or where there is an insurrection within its boundaries. Another is, that it applies in all cases where a war or insurrection exists in any part of the United States, or there is an invasion or threatened invasion of any territory within the National jurisdiction. It is also claimed that it applies only to repelling invasions of the State, or suppressing insurrections within its bounds in time of war. We do not deem it necessary to investigate this question, or to attempt to give an exact or definite construction of the terms thus used in the Constitution. The evident intention was to impose limitations upon the general power of the Legislature to create debts, leaving them free, however, from such restrictions in great emergencies caused by a war, an invasion, or an insurrection. In such cases, the Legislature should be left free to exercise their judgment and discretion upon the subject, answerable alone to the people for any abuse of the power. The existence of the emergency .calling for the. exercise of the power is purely a political question, and the Legislature, as the body in whom the political power of the State is vested, are the sole judges as to the existence of such emergency. It is the exercise of a purely political power, upon a political subject, in no manner of a judicial character, and it is not, therefore, subject to review, or liable to be controlled by the judicial department of the State. The Legislature is, therefore, the proper judge of the construction to be given to the Constitution upon this subject.