Oakland Paving Co. v. Tompkins

Temple, J. This case arises from a street assessment in Oakland. The only question submitted is, whether, the constitutional amendment No. 1, ratified by the electors at the general election in 1884', being an amendment to section 19, article 11, was proposed by the legislature as required by section 1, article 18, of the constitution. That section provides that amendments may “be proposed in the senate and assembly, and if two thirds of all the members elected to each of the two houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in the journals, with the yeas and nays taken thereon,” etc.

The objection is, that the proposed amendment was not entered in the journal of either house, as required by the constitution.

It was not copied into the journal, but there was entered an identifying reference, such as is always entered in regard to legislative bills; that is, it was proposed as a senate bill and was referred to by title and number. The yeas and nays were entered as directed. It is agreed that the amendment thus proposed was submitted to the people, and received a very large majority of the votes cast.

This question is not a new one in this court. In People v. Strother, 67 Cal. 624, it was the only issue of any importance, and it was squarely decided that the amendment had been constitutionally adopted. This was in Bank, and there was no apparent dissent. This decision was in October, 1885, and in the following May, in the case of the Oakland Paving Company v. Hilton, 69 Cal. 479, an opinion was rendered by Justice Thornton, which was concurred in by Mr. Justice McKee, holding to the contrary. The other members of the court who participated in that decision based their concurrence on other grounds.

It is contended that in this condition of the decisions, the question ought to be considered an open one. We [7]do not accede to this proposition. In the case of People v. Strother, supra, the point was squarely presented, was the only one involved, and was plainly and unequivocally decided. We see no reason why it is not entitled to the usual authority of a precedent; nor do we concede that in so deciding there was error. All admit that the constitutional requirement must be strictly performed. But it does not follow from this that the language of the instrument must be understood literally. The same rules of construction must be applied, to ascertain what its requirements are, as though it were not mandatory and prohibitory. And we think, when an act commanded or authorized may be done in different ways, either of which would be a strict compliance with the terms of the instrument understood in some common and popular sense, either mode may be pursued, unless some reason is discoverable for holding that one of such modes only will answer. If, for instance, the direction to enter the amendment in the journal is complied with, in some usual and popular sense of the language, either by copying the amendment into the journal or by placing upon the journal an identifying reference only, either will do unless the context shows a different intention.