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The undersigned, a majority of the Judiciary Committee, to which was referred the question, whether at the election held on the first day of September, one thousand eight hundred and seventy-five, a convention to amend and revise the Constitution was called by the votes of the electors, beg leave to report that they have given to the subject a careful and earnest examination, and arrived at the following conclusions :

Article X. of our Constitution makes provision: first, for the amendment of the Constitution, and secondly, for changing and revising it.

The first section provides that amendments may be made by the joint action of the people and the Legislature.

The second, however, provides for calling a convention to revise and change that instrument, by a vote of the people, to be given at an "election for members of the Legislature."

The language of the section is as follows:

And, if at any time two-thirds of the Senate and Assembly shall think it necessary to revise and change this entire Constitution, they shall recommend to the electors, at the next election for members of the Legislature, to vote: FOR OF AGAINST a convention; and, if it shali 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 a law,” etc.

It is admitted by all, that of the votes cast.“ for or against a convention," a large majority were cast for a convention.

But, it is contended, that as the votes " for a convention" were not a majority of all the votes cast on that day, the measure failed to carry.

The House will remember that on the same day on which the election " for or against a convention was held, other officers besides members of the Legislature were elected.

The number of votes cast for Governor, or other State officer, can be, and has been, accurately ascertained; but, we are informed, that the number of votes cast for members of the Legislature on that day neither has been, nor can be ascertained. Premising thus much, we

proceed as briefly as the case will permit, to inquire into the true construction to be placed on the language

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The words "elect," and "election," have in modern usage several significations, and it becomes the duty of your committee to inquire in which of those the framers of our Constitution used them in the article referred to.

, choice; to take one in preference to others;" and "election," " the act of making a choice; the act of taking one in preference to another."

By an easy and not unusual transition in the history of language, the word "election,” which properly applies only to the act of choosing or selecting, has come to mean the time or occasion of making the choice.

In which of those senses is it used in the section under consideration ?

In the first part of such section it is obviously used in its secondary or derivative sense, as denoting the time or occasion. “Next election for members of the Legislature" must necessarily refer to the day or time when the choice is made, and not the making of the choice.

The doubt arises upon the subsequent reference--to the “majority of electors voting at such election."

What election is here intended ?

This may be answered in three separate ways, according to the point of view from which it is considered.

First, it may be said that "such election” refers to the election for members of the Legislature; secondly, that it merely relates to the time or occasion; and thirdly, that it refers to the election "for or against a convention," and to it alone.

The first of these assumptions, if the reference to “election for members of the Legislature" be taken in any sense but as fixing the time, is obviously absurd.

An “election for members of the Legislature" is for members of the Legislature, and nothing else, if we use the word in its primary

The second position that “such election" merely designates the time or occasion when the majority of the electors, etc., voting, must express their sentiments "for or against a convention," is at least plausible, and many substantial reasons may be cited in its support It has, too, the advantage of not changing the meaning of the word but of using it in the sense previously attached to it.

The sentence may then be paraphrased as follows: “They shall recommend to the electors, at the time (or on the day) upon whic! the next election for members, etc., to vote for or against a conven tion. And if it shall appear that a majority of the electors votin at such time (or on such day)," etc.

But, voting for what, at such time or on such day? For member of the Legislature? Certainly not; for voting for members of th Legislature of itself constitutes one election; that is, one making selection.

Voting " for or against a convention " constitutes another and di - tinct election or expression of a choice.

To say that a majority of electors voting, not upon that questio but upon some other, will carry that question, is to involve the who section in absurdity.

It is repugnant to all our ideas of the elective franchise to ma

the success or failure of one measure depend upon the number or character of the votes which may be given for or against another.

If, therefore, "such election” refers to the time or occasion, we may read it as though the words “for or against a convention” were repeated after the word “election," so as to read," a majority of electors voting at such time for or against a convention." To

us, however, it seems most probable that the words "such election " relate to the particular, specific,“ making choice,” or expression of preference " for or against a convention.

This is the most natural construction of the language, and besides it relieves us of all difficulty.

It is the one, also, that most nearly conforms to the analogies of our elective system, according to which every question submitted to the suffrages of the electoral body stands or falls by the vote given for or against itself, and not by that given for or against another proposition.

It is agreed, in opposition to this view, that the policy of the Constitution is conservative; that it is opposed to frequent and unnecessary revisions of the organic law, and hence that it has made the consent of a majority of the electoral body a condition precedent to calling a convention.

The premises upon which this reasoning rests may, without difficulty, be conceded, and yet the conclusion drawn by no means follows.

Unquestionably it was the intention of the framers of the Constitution to fix the election " for or against a convention" upon the day and occasion most likely to give an opportunity for a thorough expression of the popular sentiment. For this reason they chose the day of the election for members of the Legislature; justly deeming it well calculated to answer their views.

But further than this their intentions could not have extended. Having provided the people with an opportunity for expressing their wishes, they left the rest to the voters themselves.

If any considerable portion, if a majority even, of the latter see proper not to avail themselves of their privilege, it does not affect the result, provided a majority of those actually voting vote for a convention.

The contrary doctrine leads, as we have already partly shown, to numerous contradictions and absurdities.

For if "such election” refers not to the election " for or against a convention” but to some other, what other is intended ?

The most natural answer which our opponents can make is, “ the election for members of the Legislature" is intended.

But it is perfectly clear that we neither have ascertained nor can ascertain the number of votes cast for members of the Legislature.

If State officers are elected at the same time, as was the case at the late election, there is no difficulty in ascertaining the whole number of votes cast-for them. For example, we know the number of votes cast at the recent election for Governor, as well as for other State officials.

But it will scarcely be pretended that we are to be guided by these votes in determining whether a convention has been called.

In the first place, the concurrence of a gubernatorial election, with the late election for members of the Legislature, was wholly accidental. In two years more, there will be an election for mem

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bers of the Legislature, without any for State officers. And there is nothing in the Constitution to prevent the submission of the question to the people at that election instead of one including State officers....

This is conclusive to show, that we are not at liberty to look to the vote for Governor, or other State officers, in order to determine whether the convention has carried.

We are restricted, then, to one of two modes; we must either confine ourselves to the vote given upon the question“ for or against a convention" itself, or we must look to the vote given for members of the Legislature.

But we repeat, the number of votes cast at the late election is not officially known, and in all probability can never be ascertained.

Pluralities elect to both branches of that body, and we believe that every such election is complicated with an election for either. State, county, or township officers.

While, therefore, it is possible for the Secretary of State to ascertain the whole number of votes cast at any given election, it is obviously impossible for him, under our system,

to tell how many are for members of the Legislature.

Again, the Legislature consists of two branches, Senate and Assembly.

There may be a much greater number of votes cast for the members of one than for the members of the other. True, only one-half of the Senate is elected at each "election for members of the Legislature," but those twenty may receive in their several districts a much larger vote than the members of Assembly voted for in the same districts.

Then, which yote is to be taken that for Senators, or that for Assemblymen? They are both members of the Legislature, and the election for them both is an “election for members of the Legislature.

We can easily understand that an occasion may arise when, owing to the supposed superior importance of the office, a larger number of votes will be cast for the twenty Senators elected biennially than for the eighty Assemblymen elected at the same time. In such case, which is to govern—the greater or the less vote?

It may be said that this is a violent supposition, but it certainly is not more violent.or extreme than the many hypotheses we are every day hearing from the opponents of a convention.

We might continue thus, without limit, to expose the difficulty and danger of making the success of this all-important measure depend upon the vote given for another and wholly different purpose.

But we have said enough to show to the satisfaction of this House, we think, that the construction contended for is altogether impracticable, and that if it should be finally adopted and acted upon, it will forever defeat the calling a convention in this State, in the manner prescribed by article ten of the Constitution.

But, again, our opponents assert that unless a majority of all the votes cast for members of the Legislature shall, also, vote for a con* vention, no convention is called.

This construetion treats the failure to vote on that question vote against the convention.

Yet the Constitution declares that the electors are to vote" for or AGAINST a convention.

Why vote against, if silence is deemed a vote?

It is a rule of construction that we must give every sentence, part of a sentence, and word, in a law, some operation, if we can possibly

This rule, it would seem, especially applies when construing the organic law-a law conceived with so much thought, and enacted with so much reflection.

What effect, then, are we to give to the requirement to vote for or against a convention "if mere non-action amounts to the expression of an adverse opinion?

Obviously the word " against" in the sentence referred to must, in that case, be deemed mere surplusage, and the act contemplated a vain and unnecessary thing.

We appeal to this House whether we are justified in giving to the language under consideration a construction which makes the words of the Constitution amount to simple nonsense.

We have argued thus far upon the language of the Constitution, and without any reference to questions of policy.

In matters of strict law, where the meaning of the enactment to be construed is clear, we are not justified in resorting to arguments of convenience or policy to sustain our views.

But when the legal construction is doubtful, the argument from policy and convenience is always admissible and entitled to the greatest weight.

We have shown the extreme difficulty, if not utter impossibility, of accurately determining the number of votes given for "members of the Legislature" at any given election.

We have shown that the number of such votes cast at the late election has not been ascertained.

So far as we officially know, a majority of those voting for members of the Legislature may have actually voted "for a convention."

The truth is, that if we adopt the construction so earnestly urged by our adversaries, we in effect render it utterly impossible to ever call a convention under the provisions of the Constitution.

Is this House, are the people whom we represent, prepared to adopt a construction involving such results?

We trust and believe not. We are satisfied that this Assembly will prefer a construction that, while giving full effect to the language of the Constitution, at the same time recognizes in full the rights of the people.

Though among the youngest and heretofore one of the most innovating States in the Union, it is a singular fact that California has existed for a longer period without a revision of its organic law than any other member of the federation.

For years past, it has been evident to those choosing to inquire, that the State has outgrown its Constitution-a Constitution, as we well know, framed under peculiar and unexampled circumstances,

A great and organic change in our fundamental law is absolutely necessary.

Many of its existing features are such that they impede the most necessary and useful legislation.

It is utterly impossible to so amend it by the legislative mode, as to meet the requirements of the people.

Nothing short of a convention to "revise and change" it will answer the exigencies of the occasion. And we call upon this Assem

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bly not to forego the present opportunity, of complying with the wishes of the people, and by: conforming to the spirit of the Constitution.

For these reasons we unite in recommending to the House the passage of Assembly Bill No. 236-calling a convention to change and revise the Constitution.

MCCONNELL, Chairman,
J. S. CHAPMAN,
JAS. E. MURPHY,
J. J. SCRIVNER,
J. McKENNA,
H. A. CARTER,
THO. M. SWAN,
T. J. CLUNIE.

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MAJORITY AND MINORITY REPORTS

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Yudiciary Committee of the Sen

ON

SENATE BILL NO. 2,

AN ACT TO PROVIDE FOR CALLING A CONVENTION TO 'REVISE AND CHANGE

THE CONSTITUTION OF THE STATE OF CALIFORNIA.

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MAJORITY REPORT.

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Mr. PRESIDENT: The undersigned, a majority of your Committee on Judiciary, to which committee was referred Senate Bill No. 2An Act entitled an Act to provide for calling a convention-have carefully considered its subject matter, and without entering upon the details of the constitutional convention therein provided for, have had under advisement the sole question whether or not the convention referred to in the second section of Article X. of the Constitution, and the Act upon that subject passed at the last session of the Legislature, was legally called at the last election by the people.

At that election.it appears that the total vote cast for Governor was one hundred and twenty-two thousand nine hundred and forty-eight votes, and that vote was the highest cast for any State officer, unless it be the vote for members of the Legislature, but the Secretary of State reports that he is unable to estimate that vote by reason of the fact that in many counties of the State there were more than two candidates for each legislative office. At that election thirty-two thousand three hundred and seventy-four votes were cast in favor of calling a constitutional convention and twenty-four thousand five hundred and fifty-two votes against.

Was the convention called under the provisions of the Constitution ?

The section of the Constitution relating to this subject is section two of Article X., and reads as follows:

"And if at any time two-thirds of the Senate and Assembly shall think it necessary to revise and 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. * * * *

The whole question at issue is : do the words "a majority of the electors voting at such election," signify a majority of the votes upon the question of calling a convention, or a majority of all the ballots cast on that day. If the former, the convention was legally and constitutionally called ; if the latter, it was not.

At the outset a very significant inquiry arises, and that is: if it had been the intention of the framers of this portion of the Constitution that a majority of the votes cast upon the question of calling a

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