VOL. I.

NOVEMBER 3, 1877.

No. 10.

THE CONSTITUTIONAL CONVENTION.

The people of California have decided in favor of calling a convention to revise the Constitution. It is now too late to discuss the wisdom or folly of this decision, and it is time to consider the manner of constituting it, and the changes proposed to be made by it. In this article the first subject only will be referred to, leaving the proposed changes for consideration hereafter. The existing Constitution, in article ten, section two, provides : "And if, at any time, two thirds of the Senate and Assembly shall think it necessary to revise or change this entire constitution, they shall recommend to the electors, at the next election for members of the Legislature, to vote for or against a convention; and if it shall appear that a majority of the electors, voting at such election, have voted in favor of calling a convention, the Legislature shall, at its next session, provide, by law, for calling a convention, to be holden within six months after the passage of such law; and such convention shall consist of a number of members not less than that of both branches of the Legislature." This is all there is to govern the Legislature in calling the convention. It is mandatory in requiring the convention to be called, and members of the Legislature can not, if they would, decline to take such action without violating their oaths of office. The time within which the convention must assemble is limited to six months after the passage of the law, so that the convention will meet before the close of next year. The Legislature will meet in December, and may be in session four months. The law will be passed before the end of March, 1878, and the convention will have to assemble before the close of September ensuing. That will give time to complete its labors in the same year. If called early in the year, as it may be, the the convention will be able to complete its labors in time to have a vote taken upon its adoption or rejection before the end of the year, and thus enable the new year of 1879 to begin under the new constitution.

Another mandate of this clause of the constitution is, that the membership shall be not less than 120 members, as there are forty Senators and eighty Assemblymen in the Legislature. The maximum number of the member. ship is not fixed. The constitution thus recognizes the importance of having future constitutional conventions large enough to represent all of the leading interests of a great and rapidly growing State. In the convention which framed the old constitution there were forty-eight members, and they began their work on the first day of September, 1849, concluding it on the

thirteenth day of October following, occupying altogether less than one month and a half. It was at a time when the gold fever was at its hight and the only interest of importance in the territory out of which the new State was to be formed was that of mining. The population of the country was not permanent, and at most did not exceed one hundred thousand. The vote by which the constitution was ratified was 12,061 66 'for the constitution;" 811 "against the constitution ;" and there were 1200 blank votes, in consequence of the failure of the printer to place the words "for the constitution" at the head of the ballots. Altogether, there were only about 14,000 people in California who felt enough interest in the country to vote for or against the constitution. At the last Presidential election there were 155,729 votes cast, and every vote represented a bona fide citizen of the State. The present population of the State is probably about 800,000, and the interests of the country are almost as diversified as in any other State of the Union. Mining is no longer the only industry, nor indeed the principal occupation of our people. We have an immense agricultural interest; our commerce commands the tribute of the civilized world; our railways are penetrating every corner of the State; manufactures and all the avocations of life now demand the fostering care of legislation, and year by year grow in importance. If it was necessary in the year 1849 to have a convention of forty-eight members to represent 100,000 people with a single industry, it would be difficult to fix the number now requisite to give voice and influence to the numerous interests of a population that has increased more than eight hundred per cent.

The convention should be limited in its membership only by the law of convenience. It certainly ought to be twice as large as the membership of our Legislature. There is a growing feeling in other States in favor of large legislative bodies. The chief objections to them are that the greater the number the less the individual responsibility, and the slower the dispatch of business. These objections, however, are quite overcome by the greater security which the people have against the corruption of their representatives, and by the probability that there will be greater deliberation in a large body than in a small one, and a more complete representation of all interests. As to the. additional cost, it seems a trifling objection when we consider that constitututions, unlike ordinary statutes, are framed for generations-embodying the land-marks of a government which are not subject to change except by a slow and tedious process.

It will be observed that the constitution does not prescribe either the qualifications for the members of the convention or the manner in which they are to be chosen. The Legislature may provide that the members shall be elected. by the people, or that a part shall be elected, and a portion selected in some other way, either by the Legislature itself, by the Executive, or by the Judiciary of the State. Inasmuch, however, as it is to be an expression of the popular will to meet the wants of the various interests of the State, the Legislature can hardly hesitate to leave the selection of members entirely to the people. Any other course would be against precedent in other States, and jeopardize the adoption of the new constitution by the people.

Supreme Court of California.

[No. 5570.]

[Filed Oct. 23, 1877.]

LARRABEE vs. SELBY.

CONTEMPT-APPEALS WILL NOT LIE FROM JUDGMENTS MADE IN CONTEMPT.-Judgments, or orders of the the court, or Judge, made in contempt, are final and conc'usive. SAME-ENTRY-TITLE.-The defendant re-entered the premises after rendition of judgment and execution of writ of restitution in favor of plaintiff, and, upon the hearing of an order to show cause why he should not be punished for contempt, showed that he had a claim, by pre-emption, which had been allowed since the judgment. The court below found defendant guilty of contempt, and he appealed. Held, that, if after judgment for plaintiff the defendant acquires title to the premises, he has the right of entry; but the issue as to such title should be tried in an appropriate action, and not upon an order to show cause why he should not be punished for contempt. By the Court.

The judgment in this case was rendered on the 20th day of December, 1872, and the writ of restitution was executed on or about the 10th day of July, 1873; and the defendant reëntered the premises about the 12th day of April, 1876. In answer to the order to show cause why he should not be punished for a contempt, the defendant filed his affidavit, and, on the hearing, documentary evidence was read. The affidavit states, among other things, that the defendant claimed the right of preemption; that, on the 10th of March, 1876, the Secretary of the Interior allowed his preemption claim to the land; that subsequently thereto he complied with the preemption laws of the United States, and paid for the land and received the Register's and Receiver's receipts therefor. The documentary evidence shows that his preëmption claim was allowed by the Secretary of the Interior. On the hearing the following order was made: "Defendant found guilty of contempt, and alternative writ ordered to issue, he to abstain from committing waste."

There is nothing in the case tending to show that the defendant's claim of title was not made in good faith. Proceedings to punish a party for a contempt are not the appropriate proceedings for the trial of the issue of title. If, after a judgment for the plaintiff, the defendant acquires the title to the premises, he has the right of entry; and the court would not punish him for entering under his title; but the issue as to such title should be tried in an appropriate action, in which the verdict of a jury or the findings of the court may be had upon issues properly framed for the purpose of definitely determining the question of title. Summary proceedings were not designed for that purpose.

The objection is taken that an appeal will not lie from the order in this case; and, in our opinion, the objection must be sustained. Section 1222,

Code of Civil Procedure, provides that "the judgment and orders of the court or judge, made in contempt, are final and conclusive." The same provision was contained in section 493 of the Practice Act. The Practice Act contained no provisions similar to those of section 1210 of the Code, nor were any in force until 1862. The Act of 1862 (p. 115), like section 1210 of the Code, declared that the reëntry, etc., of a person who had been ejected from land by legal process, etc., should be deemed a contempt; and consequently the orders made in proceedings had under those provisions would be subject to the general provisions applicable to proceedings for a contempt. In some cases in this court appeals have been entertained from such orders, where questions of jurisdiction were involved; but there is no question of that kind in this case, and although it is manifest that such orders may, in their effects, be as important as a judgment for the recovery of the possession of the land, yet the court must, in obedience to the provisions of section 1122, hold that an appeal in this case will not lie.

Appeal dismissed.

[No. 5151.]

[Filed October 27, 1877.

IN THE MATTER OF THE ESTATE OF WILLIAM STOTT. EXECUTOR - CHARGEABLE WITH PRESUMED PROFITS UPON THE MONEYS OF THE ESTATE EMPLOYED BY HIM.-The executor used the funds belonging to the estate in his own business. Held, that he is responsible for presumed profits upon the money so employed; the general rule is, that he is charged with legal interest with annual rests.

By the court.

The order or decree of the Probate Court of May 13, 1869, being appealable, is to be treated as final, and is conclusive of the amount with which the excutor was then chargeable.

That sum, and the sums he subsequently received, were mingled with the funds of the firm of which the executor was a member, and must be presumed to have been employed in the business of the firm. The circumstance that there was generally a balance to the credit of the firm in bank cannot be considered as affecting the question. Although there is no evidence of any intended or actual fraud in the present case, yet the law will make the executor responsible for presumed profits upon the moneys so employed, and the Civil Code, since January, 1873, has declared that every use or dealing with the trust property, for any purpose unconnected with the trust, shall be a legal fraud. (Section 2234.)

The general rule applicable to such cases is that the trustee shall be charged with legal interest with annual rests. (2 Redfield on Wills, 886; 2 Williams on Executors, 1670, and note.

The cause is remanded with direction that the order appealed from be modified in accordance with this opinion.

[No. 5486.]

[Filed October 31, 1877.]

FRAZIER vs. CROWELL.

ABSTRACT OF JUDGMENT, WHAT IS.--A "certified copy "is not an "abstract." The stat ute makes a distinction, and prescribes the exact form in which the abstract is to be prepared.

By the Court.

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The appeal is taken from the judgment; the findings of the court below are not attacked, and the general question is whether the findings support the judgment which the defendant obtained below. We are of opinion that they do. The ninth finding of fact is in the following words: Ninth-That said defendant, Helena Crowell, alias Golinski, has a good and perfect title to said property." If it be claimed that this finding, though among the findings of fact, is, in its substance, a conclusion of law, what is to be said of the fourth finding, by which the plaintiff's case is attempted to be supported? That finding is as follows: "Fourth-That, at the time of said redemption, said McCracken judgment was in full force and unpaid, and a valid and subsisting lien upon the property described in the complaint." Might not the existence of the lien be also characterized as a question of law? The McCracken judgment was rendered in the court of a Justice of the Peace, and, in order to operate a lien, it was necessary that an abstract of the judgment should be filed in the office of the County Recorder. (Code Civ. Proc., § 900.) The finding in this respect (third) is, that "a certified copy of said McCracken judgment was duly recorded in the office of the Recorder," etc.

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A "certified copy" is not an abstract," and the statute (id. 897) makes the distinction and prescribes the exact form in which the abstract is to be. prepared. This is an innovation upon the former statute (Pr. Act, § 599), which required a "transcript of the judgment" to be filed in the Recorder's office.

By whatever rule these findings are to be tested, as being absolute findings of fact, or mere conclusions of law, the appellant is not entitled to have the judgment given below disturbed here,

Judgment affirmed.

The indictment, at the most, charged a simple battery, and its allegations will not support a judgment as for a felonious assault.

Judgment reversed and cause remanded. Remittitur forthwith.

I dissent, on the ground that, in my opinion, the indictment sufficiently charges an assault with a deadly weapon.

CROCKETT, J.