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the returns are received, or until the second Monday after said election, when they shall proceed to make out returns of the votes cast for and against the new constitution; and the proceedings of said boards shall be the same as those prescribed for like boards in the case of an election for governor. Upon the completion of said canvass and returns, the said board shall immediately certify the same, in the usual form, to the governor of the state of California. Proclamation.

Sec. 9. The governor of the state of California shall, as soon as the returns of said election shall be received by him, or within thirty days after said election, in the presence and with the assistance of the controller, treasurer, and secretary of state, open and compute all the returns received of votes cast for and against the new constitution. If, by such examination and computation, it is ascertained that a majority of the whole number of votes cast at such election is in favor of such new constitution, the executive of this state shall, by his proclamation, declare such new constitution to be the constitution of the state of California, and that it shall take effect and be in force on the days hereinafter specified. Terms of officers first elected.

Sec. 10. In order that future elections in this state shall conform to the requirements of this constitution, the terms of all officers elected at the first election under the same shall be, respectively, one ar shorter than the terms as fixed by law or by this constitution; and the successors of all such officers shall be elected at the last election before the expiration of the terms as in this section provided. The first officers chosen, after the adoption of this constitution, shall be elected at the time and in the manner now provided by law. Judicial officers and the superintendent of public instruction shall be elected at the time and in the manner that state officers are elected. Laws relative to judicial system.

Seo. 11. All laws relative to the present judicial system of the state shall be applicable to the judicial system created by this constitution until changed by legislation.

Taking effect.

Seo. 12. This constitution shall take effect and be in force on and after the fourth day of July, eighteen hundred and seventy-nine, at twelve

o'clock meridian, so far as the same relates to the election of all officers, the commencement of their termos of office, and the meeting of the legislature. In all other respects, and for all other purposes, this constitution shall take effect on the first day of January, eighteen hundred and eighty, at twelve o'clock meridian.

J. P. HOGE, President. Attest: EDWIN F. Smith, Secretary.

73

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A. R. ANDREWS.
D. W. HERRINGTON.

WILLIAM H. PROUTY.
JAMES J. AYERS.
S. G. HILBORN.

M. R. C. PULLIAM Clitus BARBOUR.

J. R. W. HITCHCOCK. Chas. F. REED.
EDWARD BARRY.
J. E. HALE.

PATRICK REDDY.
James N. BARTON.
VOLNEY E. HOWARD.

JNO. M, RHODES.
C. J. BEERSTECHER. SAM A. HOLMES.

Jas. S. REYNOLDS. Isaac S. BELCHER. W. J. HOWARD.

HORACE C. ROLFE. PETER BELL.

WM. PROCTOR HUGHEY. CHAS. S. RINGGOLD. MARION Biggs. W. F. HUESTIS.

JAMES MCM. SHAFTER.
E. T. BLACKMER.
G. W. HUNTER.

Geo. W. SCHELL.
JOSEPI C. BROWN
DANIL INMAN.

J. SCHOMP.
Saul. B. BURT.
GEORGE A. JOINSON

Rufus SHOEMAKER.
Josiah BOUCHER.
L. F. JONES.

E. O. SMITH.
JAMES CAPLES.
PETER J. JOYCE.

BENJ. SHURTLEFF.
Aug. H. CHAPMAN.
J. M. KELLEY.

GEO. VENABLE SMIT
J. M. CHARLES.
JAMES H. KEYES.

H. W. SMITH.
JOIN D. CONDON.
JOIN J. KENNY.

John C. STEDMAN.
C. W. Cross.
C. R. KLEINE.

E. P. SOULE.
HAMLET DAVIS.
T. H. LAINE.

D. C. STEVENSON.
Jas. E. DEAN.
HENRY LARKIN.

GEO. STEELE.
P. T. DOWLING.
R. M. LAMPSON.

Coas. V. STUART.
Luke D. DOYLE.
R. LAVIGNE.

W. J. SWEASEY.
W. L. DUDLEY.
H. M. LA RUE.

CHARLES SWENSON. JONATHAN M. DUDLEY. DAVID LEWIS.

R. S. SWING.
PRESLEY DUNLAP.
J. F. LINDOW.

D. S. TERRY.
John Eagon.
JNO. MANSFIELD.

S. B. THOMPSON.
THOMAS H. ESTEY.
EDWARD MARTIN.

F. 0. TOWNSEND.
HENRY EDGERTON.
J. WEST MARTIN.

W. J. TINNIN.
M. M. ESTEE.
Rusu McCOMAS.

DANEL TUTTLE.
EDWARD EVEY.
Join G. MCCALLUM.

P. B. TULLY.
J. A. FILCIER.
THOMAS MCCONNELL.

H. K. TURNER.
Simon J. FARRELL.
John McCoy.

A. P. VACQUEREL. ABRAHAM CLARK FREEMAN. THOMAS B. MCFARLAND. WALTER VAN DYKE. Jacob RICHARD FREUD. HIRAM MILLS.

WM. VAN VOORHIES. T. B. GARVEY. WM. S. MOFFATT.

Hogu WALKER. B. B. GLASSCOCK.

JOHN FLEMING MONOTT, JNO. WALKER.
JOSEPI C. GORMAN. W. W. MORELAND.

Byron WATERS.
W. P. GRACE.
L. D. MORSE.

JOSEPI R. WELLER. WILLIAM J. GRAVES JAMES E. MURPIY.

J. V. WEBSTER.
V. A. GREGG.
EDMUND Nason.

John P. WEST.
Jxo. S. HAGER,

THORWALD KLAUDIUS NELSON. PATRICK M. WELLIN.
John B. HALL.
HENRY NEUNABER.

John T. WICKES.
THOMAS HARRISON.
Chas. C. O'DONNELL.

WM. F. WHITE.
JOEL A. Harvey.
GEORGE OHLEYER.

H. C. WILSON.
T. D. HEISKELL.
JAMES O'SULLIVAN.

Jos. W. WINANS.
CONRAD HEROLD.

JAMES MARTIN PORTER, N. G. WYATT.

74

POLITICAL CODE. .

An Act to Establish a Political Code.

(Approved March 12, 1872.]

TITLE OF THE ACT.

1. Title and divisions of this act.

Section 1. This act shall be known as THE POLITICAL CODE OF THE STATE OF CALIFORNIA, and is divided into five parts, as follows:

DICTION

Part I. OF THE SOVEREIGNTY AND PEOPLE OF THE STATE, AND OF THE POLIT-
ICAL RIGHTS AND DUTIES OF ALL PERSONS SUBJECT TO ITS JURIS-

30 II. OF THE CHIEF POLITICAL DIVISIONS, SEAT OF GOVERNMENT, AND LEGAL DISTANCES OF THE STATE...

75 III. OF THE GOVERNMENT OF THE STATE...

220 IV. OF THE GOVERNMENT OF COUNTIES, CITIES, AND Towns.... 3901 V. OF THE DEFINITION AND SOURCES OF LAW; THE COMMON LAW; THE

PUBLICATION AND EFFECT OF THE CODES; AND THE EXPRESS RE-
PEAL OF STATUTES...

.. 4466 The four codes are four statutes; each is amendments to any section thereof are to be a single act: Earle v. Board of Education, 55 regarded as amendinents of the whole act: C. Cal

. 489. The whole code is to be construed P. R. R. v. Shackelford, 63 Id. 261. together as in the case of a single statute; and Act how cited: See sec. 20, post.

et seq.

PRELIMINARY PROVISIONS. 2. When code tales effect.

Sec. 2. This code takes effect at twelve o'clock, noon, of the first day of January, eighteen hundred and seventy-three. Efect of codes generally: See secs. 4478 ing that session are repealed, except acts amend

atory of or carrying into effect the codes: MitchLaws passed at the same session at ell v. Crosbyj

, 46 Id. 97. which the codes were adopted prevail over

Similar provision in other codes of Cal. the codes: Babcock v. Goodrich, 47 Cal. 488; ifornia: See sec. 2 thereof. and see Ex parte Newton, 53 Id. 572. But Effect of this code: See subsequent secs. under section 3891 of this code, declaring that 3-19, inclusive, and secs. 4478-4184, post

. with respect to provisions concerning the reve

Publication of the codes: See post, sec. Due the code is to be considered as if passed on

4494. the last day of the session, all acts passed dur

3. Not retroactive.

Sec. 3. No part of it is retroactive, unless expressly so declared.
Retroactive effect

: See supra, note to sec- declared, but amendments to the code receive tion 2. Not only is the code to have a future a similar construction, and are not

retroactive: operation, except where otherwise enpressly C. P. R. R. v. Shackeljord, 63 Cal. 261; Sharp

v. Blankenship, 59 Id. 268; Ilibernia S. & L. Cited and applied to requirements in sections Soc. v. Jordan, 56 Id. 297.

1493 and 1500 of the Code of Civil Procedure, What is an express declaration of an inten- in regard to presentation of claims against tion to give a section or amendment a retro- decedents, in llibernia S. & L. Soc. v. Hayes

, active operation must often rest on construction, 56 Cal. 297; so also in regard to the amendas in applying a measure of damages to con inent to section 325, Code of Civil Procedure, version committed before the measure was requiring payment of taxes to make a good provided: Tulley v. Tranor, 53 Cal. 274; or adverse holding: Sharp v. Blankenship, 59 Id. deterınining what rate of interest prevailed 288; C. P. R. R. Co. v. Shackelforil, 63 11. 261. upon theadoption of the code: Dunnev. Jlastick, Impairing vested rights: See sec. 8, post, 50 Id. 244.

and note. 4. Construction of the Political Code.

Sec. 4. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice.

This section changes the common-law through all the provisions of this code. The rule which was in force in this state prior to chief design and the merit of the code, if it has the adoption of the codes: Hotaling v. Cronise, any, is its attempt to make the attainment of 2 Cal. 60; People v. Buster, 11 Id. 215; Turner justice the paramount object, and the use of v. Tuolumne Water Co., 25 Id. 397; Pina v. forms mere auxiliaries, which, when they come Peck, 31 Id. 359. See also the construction of in conflict with the ends of justice, are to be this section in Estate of Appel, 5 West Coast relaxed. This section was intended to obviate Rep. 518.

much of the difficulty under which courts have The explanation for this departure from labored, and to render the code, instead of a the common-law rule is found in the following rigid and unbending statute, as construed by statement by the code commissioners, appended some, a rule of procedure susceptible of easy as a note to section 4 of the Civil Code: "How- adapation to the purposes of justice which it ever sound may be the arguments in favor of alone has in view. See the opinion of Justice this rule [the old rule] when applied to ordi- Cope, Jones v. Sleamship Cortes, 17 Cal. 487; nary acts of the legislature, it is apparent that see also Lucas, Turner & Co. v. Payne & Dewey, it would be improper to apply it in all its 7 1d. 92; Ward v. Severance, Id. 126; Chamber. severity to a system of laws intended, in a great lain v. Bell, Id. 292.” measure, to take the place of the common law, A liberal rather than strict construction and having in view, as its leading object, the is also demanded by the Penal Code, section furtherance of justice and a disregard of techni. 4, evidencing the general design of the commiscal strictness. The provisions of such a system sioners to abrogate the old rules of strict con. ought to be construed in the same manner and struction: Ex parte Gutierrez, 45 Cal. 429; with like force and effect as they would be were People v. Mortimer, 46 Id. 117; People v. Soto, the principles enunciated resting in the un 49 Id. 67. But statutes in contravention of the written law; and it was to this end that the sec. common law are not to be extended by construc. tion has been made a part of each of the codes.” tion, as it is not to be presumed that the legis

So also in their note to this same section, as lature intended to make an innovation on the found in the Code of Civil Procedure, the code common law further than the case absolutely commissioners, referring to the rule strictly requires; Brown v. Fifield, 4 Mich. 322; Johnconstruing penal statutes and statutes in deró 80n v. Hahn, 4 Neb. 144. gation of the common law, say: “Without A statute in affirmance of the common stopping to inquire how far this principle is law is to be construed as was the rule by that applicable to statutory provisions prescribing, law: Baker v. Baker, 13 Cal. 87. for example, the time within which a particu With view to promote justice.—Applicalar act must be dono (which was the case in the tions of this clause: Puige v. Carroll, 61 Cal. instance referred to), it certainly should not 215; S. C., Id. 211. apply in all its severity to a system of regula Construction of codes with relation to tion having in view as its sole object the fur: each other, and reconciling conflicts between therance of justice and a disregard of technical titles, chapters, and articles: See secs. 4478 et strictness. This is the great principle running seq. 5. Provisions similar to existing laws, how construed.

Sec. 5. The provisions of this code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.

New enactments. The codes were framed section with reference to the effect of the codes with a view to a complete system of law, de- upon tenure of office: People v. Bissell, 49 Cal. signed, however, to disturb the existing state 407, the inspector of gas meters' case. See also of things as little as possible, and not to impair sec. 18, infra. vested rights. The foregoing section is one of Revival by repeal.-—“The Political Code Beveral expressive of this design. It has been contains a general provision that the repeal of considered in connection with the succeeding existing statutes shall not reviva any law here

tofore repealed or suspended, nor any office People v. Craycroft, 2 Cal. 243:” Code Comberetofore abolished, and therefore such a pro- missioners' note. The section referred to is vision has not been incorporated herein: See section 18. 6. Tenure of office.

Sec. 6. All persons who, at the time this code takes effect, hold office under any of the acts repealed, continue to hold the same according to the tenure thereof, except those offices which are not continued by one of the codes adopted at this session of the legislature, and excepting offices filled by appointment. (Amendment, approved March 30, 1874; Amendments 1873-4, 3; took effecl July

6, 1874.

See next section, and note. 7. Construction of repeal as to certain officers.

Sec. 7. When any office is abolished by the repeal of any act, and such act is not in substance re-enacted or continued in either of the four codes, such office ceases at the time the codes take effect.

The legislature can abolish or change Kendall v. Canton, 53 Miss. 526; French v. an office created by it, and it may extend or Commonwealth, 78 Pa. St. 339; Territory v. abridge the terms of its incumbents at pleas. Pyle, 1 Or. 149; People v. Green, 58 N. Y. 295; ure, unless forbidden by the state constitution: Conner v. New York, 2 Sandf. 355; State v. In re Bulger, In re Merrill, 45 Cal. 553; Christy Douglas, 26 Wis. 428; Cooley's Const. Lim., v. Sacramento, 38 Id. 3; Attorney General v. secs. 226, 277. Notwithstanding the term of an Squires, 14 Id. 12; McDaniel v. Yuba, Id. 444; office may have expired by virtue of the forego. People v. Banvard, 27 Id. 470; People v. llas- ing sections, yet the incuinbent holds until his kell, 5 Id. 357; Perkins v. Corbin, 45 Ala. 103; successor has qualified as directed by section Benford v. Gibson, 15 Id. 521; Augusta v. 879 of this code: Prople v. Bissell, 49 Cal. 407. Suceeney, 44 Ga. 463; People v. Lippincott, 67 Repeals by implication: See sec. 18, post, Ill. 333; Opinions of Justices, 117. Mass. 603; and note. 8. Actions, etc., not affected by this code.

Sec. 8. No action or proceeding commenced before this code takes effect, and no right accrued, is affected by its provisions, but the proceedings therein must conform to the requirements of this code as far as applicable.

Effect of codes on pending action.—The paired; but to state a precise rule, defining sufficiency of proceedings taken before the code what rights are vested, is a task of some diffiwent into operation must be determined by the culty. The various decisions present illuslaw in force then, and by no other rule: Caul- trations of what have fallen within the meanfield v. Doe, 45 Cál. 221, 223; Hancock v. Thom, ing of the term, but few have attempted a 40 Id. 643. The procedure upon a motion for comprehensive definition. As Cooley truly a new trial, notice of which had been given says: “In its application as a shield of protecbefore January 1, 1873, was required to be tion, the term •vested rights' is not used in any according to the practice act then in force: narrow or technical sense, or as importing a Macy v. Davila, 48 1a. 647; but the procedure power of legal control merely, but rather as upon such motion where the notice had been implying a vested interest which it is right and served after the codes went into effect was equitable that the government should recog; determined to be that prescribed by the code: nize and protect, and of which the individual Kelly v. Larkin, 47 Id. 58. A similar con- could not be deprived arbitrarily without injusstruction has been given to the insolvency law tice:” Cooley's Const. Lim. 358. The following of California of 1880. Strutven v. Creditors, 62 general statement is believed to be supported Id: 45, decides that although the proceedings by adjudged cases: To render a law obnoxious in 'usolvency may have been commenced under to the objection that it impairs vested rights, the act of 1852, yet all pleadings filed after it is not necessary that the act of the legislathe passage

of the new act must conform to its ture should import an actual destruction of the requirements. The evident object of the section right. The test is not so much in the extent is , not to interfere with any vested rights, and of the change as in the character thereof. If to render uniform so far as may be the course the act postpones or accelerates the period of of procedure in pending proceedings. McAlinn performance of a contract, imposing conditions V. Bliss, 31 Id. 122, illustrates what this section not expressed therein, or dispensing with any was designed to obviate. The act repealing of those stipulated, it is within the prohibithe forcible entry and detainer laws was bý tion: Green v. Biddle, 8 Wheat. 1; McCracken a subsequent enactment altered so as not to v. Hayward, 2 How. 008; Planters' Bank v. affect actions commenced under the repealed Sharp, 6 Id. 301; Walker v. Whitehead, 16 bermain As a general rule, the procedure is gov. Wall314; Lapsley v. Brashears, 4 Litt: 47; erned by the new law: 'Bishop's Written Law, Edmonson v. Ferguson, 11 Mo. 314; Winter v;

Vested rights.—It is an admitted principle Peck. 1; Robinson v. Magee, 9 Cal. 81; People that vested rights cannot be destroyed or im

y. Pond, 10 Id. 563; McAuley v. Brooks, 16 Id.

sec. 179.

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