ÍN ASSEMBLY. House met pursuant to adjournment. Speaker in the chair. THURSDAY, February 4, 1858. The roll was called, and all were present except Mr. Marshall and those absent on leave. Journal of yesterday was read and approved. PETITIONS. Petitions for the enactment of a Sunday law were presented: By Mr. Hamlin, of citizens of Springfield, Tuolumne county; By the speaker, of Mrs. R. L. Robertson; All of which were referred to the Committee on Public Morals. Mr. Aud presented a petition of Shafter & Heydenfeldt, for the passage of an act enabling the board of supervisors of San Francisco to fulfill their contract. Referred to Committee on Claims. Mr. Edwards presented a remonstrance of residents of Sonoma county, against the alteration of the boundary line between the counties of Marin and Sonoma. Referred to the Committee on Counties and County Boundaries. Mr. Shepard presented the petition of Elliott, and Cook, and Cofran, to be remunerated for bricks used at the state prison. Referred to Committee on Claims. Mr. Safford offered the following resolution, which was adopted: Resolved, That all persons holding evidences of indebtedness against the state of California, required to be audited by the present Legislature, whether in the form of Comptroller's warrants, or otherwise, be requested to present the same prior to the first day of March, A. D., 1858, to the Legislature. Mr. Safford made the following report: MR. SPEAKER :-The Committee on Claims have had under considera tion Assembly bill No. 94, an act appropriating money to pay H. C. Peck and Theo. Bliss, for books furnished the Superintendent of Public Instruction in the year one thousand eight hundred and fifty-three, and find that by article four section eight, of an act to establish a system of common schools, the Superintendent of Public Instruction is required to examine and recommend a uniform series of school books to be used in the different schools of the state, and that all reasonable expenditures of money incurred by him in the discharge of his duties, shall be paid for, etc. Your committee do not believe the law upon which this claim is based, authorized the Superintendent of Public Instruction to contract this debt. It will be seen by examining its provisions, that he is required to examine and recommend suitable books, but not to purchase them. We therefore report the bill back to the House, and recommend that it do not pass. A. P. K. SAFFORD, S. A. BALLOU. Mr. Groom made the following report: MR. SPEAKER:-Your Committee on Commerce and Navigation, to whom was referred Assembly bill No. 53, an act explanatory of an act entitled an act concerning passengers arriving in ports in this state, passed May 3, 1852, have had the same under consideration, and beg leave to report it back without amendment, and recommend its passage. R. W. GROOM, Chairman. Mr. Howell made the following report, which was adopted: MR. SPEAKER: The Committee on Agriculture, to whom was referred concurrent resolution relative to "pre-emption rights to settlers," have directed me to report the same back to the House, and recommend its reference to the Committee on Public Lands. Mr. Moses made the following report: HOWELL, Chairman. MR. SPEAKER:-The Committee on Engrossment have examined, and found correctly engrossed, Assembly bill 99, for an act amendatory of and supplementary to an act entitled an act to authorize the board of supervisors of Humboldt county to levy a special tax for certain purposes, and to provide for the collection of the same, approved April 18, 1857; Also, Assembly bill No. 70, for an act to separate the office of collector of taxes from the office of sheriff, in the county of Placer; Also, Assembly bill No. 45, for an act for the relief of John B. Cecil, sheriff of Klamath county. Mr. Gray made the following report: H. A. MOSES, Chairman. MR. SPEAKER:-The San Francisco delegation, to whom was referred Assembly bill No. 4, entitled an act to provide for the equitable and final settlement of all outstanding unfunded claims against the city or the county of San Francisco, which accrued prior to the first day of July, eighteen hundred and fifty-six, and for the final payment and redemption of the funded debts, having assembled a portion of the delegation together, found all present opposed to the original bill; and, satisfied that the ori ginal bill is the bill that ought to pass, I do now report the same back to the House, and respectfully recommend its passage. FEBRUARY 2d, 1858. THOS. GRAY. NOTICES OF BILLS. Notices of the introduction of bills were given as follows: By Mr. Lee, for an act to provide for the funding the debt of the city of Placerville, and for the payment thereof; By Mr. Kabler, for an act to amend section one hundred and eleven of the revenue act, passed May 15, 1854; By Mr. Minis, for an act to amend an act entitled an act to provide rev enue for the support of the government of this state, approved April 29th, 1857; By Mr. Parker, for an act in relation to the execution of criminals; By Mr. Sheridan, for an act to change the name of Henri Alfred Kreicer to that of Henri Miller; By Mr. Tuttle, for an act to provide for the payment of the expenses incurred in surveying the boundary line between Tuolumne and Stanislaus counties, under the act of the Legislature of May 3, 1854; Also, for an act to amend an act entitled an act concerning officers, passed April 28, 1851. OPINION OF THE ATTORNEY GENERAL. The following communication was received from the Attorney General: ATTORNEY GENERAL'S OFFICE, Sacramento, February 3d, 1858. 58. } Hon. Joseph Walkup, President of the Senate: Hon. N. E. Whitesides, Speaker of the Assembly: GENTLEMEN:-Concurrent resolutions of the Senate and Assembly, forbidding the drawing of warrants by the Comptroller of State, in favor of James M. Estell, on account of his contract as lessee of the state prison, and asking my opinion upon the subject, were handed me last evening. According to the letter of the resolutions mentioned, I am required to give an opinion in regard to the prohibition contained therein, against the issuance of warrants by the Comptroller in favor of Estell. But, from reading the remarks of gentlemen made whilst they (the resolutions) were under consideration, and from conversation with others who took an active part in their passage, I conclude that my opinion is desired in regard to the contract made between the Board of State Prison Commissioners and Estell, by which the state prison grounds and property, together with the convict labor of this state, was leased to the latter for the period of five years, which I cheerfully give Assuming that the contract spoken of was fairly made, and is not tainted with fraud, (in regard to which I am not informed,) and that it is regular upon its face, I am compelled still to maintain that it is, and always has been, void for want of constitutional power or authority in the board of commissioners to execute it on behalf of the state. This contract was made under and by virtue of the provisions of an act entitled an act creating a board of state prison commissioners, and defining their duties, approved March 21st, 1856, which act authorizes the board of commissioners to lease the state prison grounds and property, together with the convict labor of this state, for a period of five years, at a price not exceeding $15,000 per month; and authorizes the Comptroller to draw his warrants on the Treasurer of State, for such sum per month as may be agreed in such contract. In other words, the act authorizes the contraction of a debt or monthly liability against the state of a sum not exceeding $15,000 per month, for a period of five years. Now, at the time said act was passed, and at the time the contract with Estell was entered into, the state had but little if any money in her treasury, and was indebted in a sum exceeding $3,000,000, not contracted in case of war, to repel invasion, nor suppress insurrection, no part of which indebtedness has been submitted to and ratified by a vote of the people as required by the constitution, neither did this act require the question of an appropriation for the pur 182 poses therein specified to be submitted to a vote of the people. Then the question is presented as to whether the act of March 21, 1856, referred to, is in contravention of the eighth article of the constitution. I think it is. It will be observed that the language of said article is that the Legislature shall not in any manner create any debt or debts, liability or liabili ties, which singly or in the aggregate, etc., exceed the sum of $300,000. This language is too plain to be misunderstood, and too comprehensive for evasion; it embraces every liability of every kind and nature whatever; the necessity or importance of the object to be obtained cannot in the slightest affect it. Even though the wheels of government should thereby be stopped, yet the Legislature cannot go beyond the bounds and the limits fixed in the article from which I quote, except in the manner pointed out therein. This subject has been so fully and ably discussed by our Supreme Court in the cases of the People v. Johnson et al., October Term, 1856, and Nougues v. Douglass et al., January Term, 1857, (to which I refer you,) that further comment at present is unnecessary. In the case of the People v. Johnson, we are told a debt or liability may be created in many ways. It may be done by express statute, by contract, by appropriation when there is no money to meet it, by drawing on a fund which has not been set apart, or which in fact does not exist, etc., etc.,-in a word, whenever the faith of the state is pledged, either directly or indirectly, to the payment of a certain sum at a given time, or when the money may be in the treasury, for a service rendered or to be rendered, then a debt or liability has been created within the meaning of the eighth article of the constitution. And it seems to me that no argument is required to bring the act and contract under consideration within the rule which I have stated. On Monday last, the claim of Mr. Estell, for $10,000, for his monthly payment under his contract as lessee, was presented to the board of examiners. We declined allowing it, upon the ground I have stated, and for the additional reasons, that, first, we had serious doubts as to whether an appropriation had been made by law for that purpose; and second, if an appropriation was made by the act of March 21, 1856, whether it did not exceed the constitutional limit, independent of any other indebtedness, by creating a liability for a sum exceeding $300,000. An appropriation under the constitution, laws, and financial system of this state consists in setting apart a specific fund for a particular purpose, a named amount, which is capable of being exhausted, a fixed sum against which an account by the proper officers may be kept. (See B. B. Redding v. Sam. Bell, 4th Cal. Rep., page 333.) The general appropriation law made no provision for Estell's contract, and as to whether the act under which such contract was made makes an appropriation under the rule given, is questionable. Again, this act authorized a contract for five years, at $15,000 per month, making a sum total of $900,000, and according to the reasoning in the People v. Johnson et al., it would seem that it thereby provided for the creation of a liability in that sum. If the act of March 21, 1856, operates as an appropriation at all, it in my opinion appropriates the sum of $900,000. It is true, that the language used is "the sum of $15,000 per month, or such sum, etc., is hereby appropriated." But the act is for a single object or purpose, and authorizes but one contract to be made, which contract is to continue through a series of years, and the payments thereon to be made monthly. Now suppose that such act had created a board of commissioners, and authorized them to make a contract, which contract should run for five years, and for the sum of $900,000, and had further provided as follows: "The sum of $900,000 is hereby appropriated out of any moneys not otherwise appropriated by law, for the purposes of the contract aforesaid, and the Comptroller is hereby required to 185 draw his warrant for the sum of $15,000 at the end of each month, etc., and the Treasurer is hereby required to pay the same," would such an act be constitutional? I apprehend not. Then let me ask you, if a mere change of terms, which in fact means the same thing, and accomplishes the same purpose, can render that constitutional, which otherwise was not? In other words, can the Legislature constitutionally do that indirectly which it can not directly? Can it do by commissioners that which it can not do by express act? Can it, by the passage of an act shrewdly drawn by some one having a particular affection for the state treasury, secure an end or object which plain, honest, straightforward English could not possibly accomplish? If so, then constitutional restrictions will have no force or effect whatever. Respectfully yours, THOS. H. WILLIAMS, Attorney General. MESSAGE OF THE GOVERNOR. The following communication was received from the Governor: STATE OF CALIFORNIA, EXECUTIVE DEPARTMENT, To the Senate and Assembly of California: } GENTLEMEN:-The developments made by the recent joint committee appointed to visit the state prison, impose upon me the necessity of recommending some changes in our criminal code. There are now some thirty-seven persons confined in the penitentiary, under the age of twenty-one years, in a room with some two hundred and fifty other convicts, many of whom are amongst the most accomplished villains in the world. Their exploits and adventures in infamy and crime in various countries through which they have traveled, are detailed in exaggerated terms to these youths, and make impressions upon their minds which must exercise the most baneful influence upon their future career. This prison, as at present conducted, is the most efficient school for villainy that can be found in any country. The boy who has perhaps been influenced by older persons to commit larceny, or who, in a moment of ungovernable passion, has stricken his fellow with a deadly weapon, but whose heart is still warm to honest impulses, will leave the institution, graduated in all that the most hardened villains can teach. They enter novices in crime, but come out masters of all the arts practiced in the school of infamy. Such an institution is not only disgraceful to the state, but disgraceful to the age in which we live. Some provisions ought to be made at once for a house of refuge-a place where juvenile offenders can be kept by themselves, and freed from the destructive influences which now surround them-a place where proper efforts could be made to reclaim them from the paths of vice, and by education and suitable training, restore them to society, qualified to discharge the duties of good citizens. The alarming increase in the number of juvenile offenders in our state admonishes us that the public interest demands a prompt movement in this direction. In the meanwhile I recommend that the criminal code be so modified that all persons convicted of felonies, under the age of eighteen years of age be imprisoned in the county jail. In this connection, I also recommend the passage of an act making it a criminal offence for a person of full age to bet or hazard money, or anything of value, with a minor, and authorizing the parent or guardian, as the case may be, to sue for and recover back any money or valuable thing so lost. Whilst upon this subject, I deem it proper to inform you that the board of examiners have decided that it will require a specific appropriation before the |