Hatch v. Stoneman

Morrison, C. J. This is an application for a writ of mandamus to compel the respondent, as governor of the state of California, to sign, approve and authenticate a certain measure adopted by the legislature of this state at its recent session, providing for the submission to the people of certain amendments to sections one, eight, ten and eleven of article xm of the constitution of the state; and also to issue forthwith a proclamation, as provided in said measure, calling a special election to be held on the 6th day of June, 1885, submitting to the people of the state for their approval the said proposed amendments. As we understood on the argument, the application for the writ to compel the governor to sign the proposed measure or bill was abandoned, it being conceded that the governor, in the matter of signing and approving bills passed by the legislature, has a discretion which cannot be controlled by the writ of mandate.

Section 1085 of the Code of Civil Procedure, by which the issuance of the writ is authorized, provides that it may be issued to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, and the writ can issue only to compel the performance of an act or duty clearly enjoined by law. (Draper v. Noteware, 7 Cal. 278.)

The learned counsel for the respondent contends that the duty, the performance of which is sought to be enforced by the writ in this case, is not imposed on the governor, either by the constitution or the law, and it is very clear that unless the constitution or the law makes it the duty of the governor to issue a proclamation for an election, this court cannot compel him to do so.

Let us first look at the constitution. Section 1, article xviii, of that instrument provides that “ any amendment or amendments to this constitution may be proposed in the senate or assembly, and if two-thirds of all the members elected to each of the two houses shall vote in favor thereof, such pro[634]posed amendment or amendments shall be entered in their journals, with the yeas and nays taken thereon; and it shall be the duty of the legislature to submit such proposed amendment or amendments to the people, in such manner and at such times, and after such publication, as may be deemed expedient.” It will be remarked that the- power to propose an amendment to the constitution is vested in the two houses—senate and assembly—and if two-thirds of all the members elected to each of the two houses vote in favor thereof, it shall be the duty of the legislature to submit such proposed amendment or amendments to the people to be voted thereon. The proposal of the amendment or amendments is not by the legislature, as such, in the ordinary enactment of a law, and with the proposal the governor has nothing to do. The act is that of two-thirds of each branch of the legislature. But the matter of submitting the proposed amendment or amendments to the vote of the people is quite different. That is to be done by the legislature, by a law to that effect, and in the enactment of a law the governor is a part of the law-making power. As was said by the Supreme Court of the United States, in the case of Memphis v. U. S., 97 U. S. 296-7, “ the constitution ordains that no bill shall become a law until it shall have received the approval of the governor, or shall have been otherwise passed under the provisions of the constitution; that is, as we understand it, over his refusal to approve. The executive is thus made a necessary constituent of the law-making power.”