Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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constitute separate districts shall be formed into convenient
single districts, or, if necessary, may be attached to contigu-
ous districts, as the General Assembly may provide."

As the United States decennial census of 1880 showed, th**



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44 BREDIN'S appeal and GREER'S APPEAL.

County of Butler contained more than fifty thousand inhabit-
ants ; the appellants claim that it alone thereby became en-
titled to become a separate judicial district, and that the elec-
tors thereof only could participate in the election of judges
learned in the law, assigned to said district; in other words,
although the County of Lawrence was legally united, annexed
or attached in the formation of the district, yet the qualified
electors thereof are, by the constitution, denied all right to
vote for the judges who, for a full term of ten years, are to
preside in the courts of their county.

A proposition so startling as this, and one affirming such
an unequal and unjust discrimination against all the legal
voters of a county, ought not to be assented to, unless its cor-
rectness be already established.

The section of the constitution relied on was before us for
S!S^^!S1S23I2L« construction in the case of Commonwealth v, Hard-

OF COKSTITUnOH-

^ ™S?.?LL^ing,87 Pa. St. (6 Norris), 343. It was carefully
M^RAL D» considered and construction given thereto. It
was held that this section did not, of itself, constitute a
separate district when a county attains the number of inhabi-
tants specified; but it indicates the basis on which, at the
proper time and in the proper manner, judicial districts may
be created by the Legislature. The unreasonable and mis-
chievous effects of any other construction are well stated in
the able opinion of Mr. Chief Justice Agnew. The correct-
ness of this construction has since been affirmed and approved
by this court, in a distinct manner, in Commonwealth v,
Handley, Pittsburg Legal Journal of December 24, 1884,
and in Petition of Cahill, Slevin and McVay, not yet reported.

That the section of the constitution cited was not intended
JS??^«SSst?" to execute itself in the formation of judicial dis-
tricts, but requires legislative action, is clearly shown by
section 14 of the schedule.

It declares : " The General Assembly shall, at the next
succeeding session after each decennial census, and not often-
er, designate the several judicial districts ds required by the
constitution." Thus not only is the whole power of desig-
nating judicial districts given to the Legislature, but it can be
exercised only after each decennial census. Although a
county forming part of another district may, in fact, for many
years, have the population stated as sufficient to constitute a



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BREDIN S APPEAL AND GREEK'S APPEAL. 45

separate judicial district, yet it must bide its time and wait
the action of the General Assembly.

In seeking for the true meaning and proper construction of
section 5, article V, we must consider other portions of the
constitution, and so interpret the different parts as to produce
harmony between them and give a just and reasonable effect
to the whole.

Section 15 of the same article declares : " All judges required
to be learned in the law, except the judges of the Supreme
Court, shall be elected by the qualified electors of the respec-
tive districts over which they are to preside, and shall hold
their offices for the period of ten years, if they shall so long
behave themselves well."

Who are qualified electors ? Section i, article VIII answers
this question. " Every male citizen twenty-one years SiS^D^SrS^
of age, possessing the following qualifications, shall be entitled
to vote at all elections.** The qualifications following refer
only to citizenship, duration of residence and the payment of
taxes. If, then, persons possessing these qualifications are
entitled to vote at all elections, and judges learned in the law
shall be elected by the qualified electors of the respective dis-
tricts over which they are to preside, it must be conceded
that these sections intend to give and do gfive to the electors
of the County of Lawrence the right to vote for their judges,
unless that county is not within the 17th judicial district over
which said judges are to preside.

This conclusion is supported by Calvin v. Beaver, 94 Pa.
St (13 Norris) 388.

Two things are indisputable. One is, that the law judges
of the 17th district do preside over and in the County of Law-
rence. The other is that the county is not in any other judi-
cial district. No judges, other than those of the 17th district,
are authorized to preside there. All writs issued from the
several courts of record of the County of Lawrence must be
tested in the name of the president judge of the district. The
commissions issue to these judges, as judges of the 17th judicial
district. If the County of Lawrence is not within the dis-
trict of these judges, then the president judge thereof has no
power to call upon the president or law judge of any other
district to hold a term of court therein. The electors of the
County of Lawrence are either within the 17th district, with
the right to vote in the election of judges learned in the law.



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46 BREDIN*S APPEAL AND GREEK'S APPEAL.

to preside there, or else they are outside of that district and
in no other, and legally have no such judge to preside in the
courts of their county. Such a result would not only be re-
pugnant to the whole scope and spirit of the constitution re-
lating to courts, but would destroy that uniformity in the
organization and operations of courts of equal grade which
it expressly declares shall be preserved. This section 26 of
article V, inter alia^ declares : " All laws relating to courts
shall be general and of uniform operation, and the organiza-
tion, jurisdiction and powers of all courts of the same class or
grade, so far as regulated by law, and the force and effect of
the process and judgments of such courts shall be uniform."

The construction claimed by the appellants for section 5
denies to one county that uniform organization and operation
which the constitution declares shall be enjoyed by all the
counties, and which no law shall impair.

The authority given by law to the presiding judge consti-
tutes an essential part of the organization of the court, and
fixes a limit to its operations. This, however, is only one
view of the case. It has another side — that side is the people.
Uniformity in the organization and operations of a court is not
for the exclusive convenience of the judge who administers
the laws, but its main purpose is for the benefit of the people
of every county, whose rights might be injuriously affected
by an absence of this uniformity.

We cannot assent to the view of the appellants. It is in
clear conflict with too many parts of the constitution. It
strikes down those equal rights and valuable privileges which
are so highly prized by our people, and which the constitu-
tion was intended to secure, and we think does secure.

We are not unmindful of the case of Commonwealth v,
Dumbold, i Outerbridge 293. It was twice argued and each
time decided differently, the last time by a bare majority of
the judges of this court.

It stands, however, as authority, that under the legislation
then existing the County of Fayette was not entitled to elect
associate judges.

The question as to the right of the qualified electors of the
county attached to vote was not before us for decision and
was not decided.

Electors held We are therefore unanimously of the opinion that
VOTE FOR JUDGE, thc quallficd electors of the County of Lawrence



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PEOPLE EX REL. LEVERSON V. THOMPSON. 47

were entitled to vote for judges learned in the law at the elec-
tion held on the 4th day of November, 1884, ^^^ that John
McMichael and Aaron L. Hazen received the greatest number
of legal votes, and are entitled to the office to which each was
elected.

It is further ordered that this decision be certified to the
secretary of the commonwealth, decree affirmed, and the ap-
peal in each case is dismissed at the costs of the respective
appellant therein.



People ex rel, Leverson

V.

Thompson, Secretary, etc.

{Advance Case, California, in Bank, October 30, 1885.)

Conceding that the act of March 13, 1883, entitled "An act to divide
the State of California into congressional districts " was invalid, because
jDf non-compliance by the l^slature with certain formalities required by
the constitution, still the petitioners are not entitled to a mandate direct-
ing the Secretary of State to certify to the Grovemor that two of thefn
were duly elected congressmen -at-large, and that each of the others was
elected a member of the House of Representatives, in a congressional
district created by the act of March 30, 1872, because the electors through-
out the State did not vote for two members of congress-at-large, nor did
the electors within the limits of each of the congressional districts, as pre-
scribed by the act of 1872, vote for a member of congress to represent the
people of such district.

Notice, by proclamation, of an election, is necessary whenever the voters
are not bound by law to take notice of the time of the election, and of the
officers then to be chosen. And, conceding that when a term of office is
to expire at a certain date after a general election, the electors take notice
the office is to be filled at such general election, still, where a vacancy has
occurred, by reason of death or resignation, the voters are not bound to
take notice of such vacancy, and the casting of votes for a candidate fo fill
the vacancy does not constitute an election.

The electors throughout the State were not bound to know, under
penalty of disfranchisement, that the Statute of 1883, regular in form, cer-
tified to have been properly passed by the appropriate officers, published as
other statutes are published, approved by the Governor, and by him acted
upon when he issued his proclamation for a general election, held on No-
vember 4, j 884, was void because of matters not appearing on the face of
the statute, but which could be ascertained only by an examination of the
journal of the two houses of the legislature, or that the law of 1872 was
still in full force and operation.

Amendments to bills pending before the legislature need not be read
three times, per Rofes, J.



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48 PEOPLE EX REL. LEVERSON V. THOMPSON.

This is an application for a writ of mandate, compelling
the Secretary of State to compare and certify the votes cast
at the last congressional election, in accordance with the law
in force in this State prior to the thirteenth day of March,
1883.

It is claimed by petitioner that at the election for repre-
sentatives in Congress, held on the fourth day of November,
1884, there were to be elected four representatives, under the
act of March 30, 1872, entitled " An act to divide the State of
California into congressional districts," and two represent-
atives at large, under an act of Congress, entitled " An act
making apportionment of representatives in Congress among
the several States, under the tenth census,'* approved
February, 1882, and that the votes cast at such election
should be compared and estimated in accordance with said
acts. In order to sustain this claim the act of the legislature
of March 13, 1883, entitled "An act to divide the State of
California into congressional districts, under which said
election was held and the votes cast thereat compared and
estimated, is sought to be declared null and void. This act is
attacked, not as to its matter, but as to the mode of its pas-
sage, and the journals of the legislature are resorted to in
order to sustain this attack.

Petitioner claims that this act was not passed in accordance
with Section 15, Article IV of the constitution,' requiring
that every bill shall be read on three several days in each
house, because the amendments made to the bill during its
passage were not read on three several days in each house,
and further, because the bill, with the amendments thereto,
was not printed for the use of the members on its final passage,
and he produces the journals and other testimony to sustain
this point.

E, C, Marshall, Attorney-General, M. R. Leverson and George
W, Chamberlain for the petitioner.

Horace G. Piatt, amicus curia, for the respondent.

McKiNSTRY, J. — The petitioners are not entitled to a man-
date directing the Secretary of State to certify to the Gov-
ernor that two of them were duly elected congressmen-at-
large, and that each of the others was elected a member of



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PEOPLE EX REL. LEVERSON V. THOMPSON. 49

the House of Representatives, in a congressional district
created by the act of the legislature in 1872.

If it should be conceded that the act of 1883 is invalid,
because of non-compliance by the legislature with certain
formalities required by the constitution, yet, as appears from
the petition and facts, of which we take judicial notice, the
electors throughout the State did not vote for two members
of G)ngress at large, nor did the electors within the limit of
each of the congressional districts, as prescribed by the act of
1872, vote for a member of Congress to represent the people
of such district.

Notice to the electors lies at the foundation of any popular
system of government. It has sometimes been held notice to ixec-
that the existence of a law fixing the time of an ^" discussed.
election, and the offices to be filled, is of itself notice. It may
be conceded that when a term of office is to expire at a cer-
tain date after a general election, no other election to inter-
vene, the electors take notice the office is to be filled at such
general election. Some decisions have gone so far. But it
is well settled that when a vacancy has occurred by reason of
death or resignation the voters are not bound to take notice
of such vacancy, and the casting of votes for a candidate or
candidates to fill the vacancy does not constitute an election.
The facts of the present case bring it within the principle of
the decisioirs which hold that, in cases of special elections to
fill a vacancy, a proclamation is necessary, even although the
special election be held at the same time as a general election.
The principle is that a notice by proclamation is necessary
whenever the voters are not bound by law to take notice of
the time of the election and of the officers then to be chosen.

The contrary not being averred in the petition, it must be
presumed that the Governor, who had approved the act of
1883, issued his proclamation for tjie election of a member of
Congress in each of the districts defined by that act.

The general rule is that all are bound to know the law. But
the recognition of this general rule does not compel knowledge of
us to hold that the elector, as matter of fact, knew 'S^^^H^'l^
that the act of 1883 was of no force or eflfect. It ''^^^^^
does not compel us to hold that, as a matter of law, the elec-
tors throughout the State were bound to know, under penalty
of disfranchisement, that a statute regular in form, certified

9 Cor. Cas. — 4



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50 PEOPLE EX REL. LEVERSON T'. THOMPSON.

to have been properly passed b^ the appropriate officers,
published as other statutes are published, approved by the
Governor, and by him acted under when he issued his
proclamation, was void, because of matters not appearing on
the face of the statute, but which could be ascertained only
by an examination of the journals of the two houses of the
legislature ; that, thus taking notice of the invalidity of the
act of 1883, the electors were bound to know that the law of
1872 was still in full force and operation.

That the electors did not know all it is claimed they ought
to have known is apparent from the matters set forth in the
petition, and from the fact that the petitioners have found it
necessary to ask that the Secretary of State be prohibited
from estimating the votes cast for members of the House of
Representatives of the United States in the respective dis-
tricts created, or attempted to be created, by the act of 1883.

Courts of justice in this State take judicial notice, per-
haps, of the contents oi the journals of the
of"jSuwi![x?op two houses of the lecrislature ; the citizens at
large are not required to take legal notice
of . the entries in the journals. The people had not
actually been notified of such entries when the elec-
tion was held. They had before them (let us assume) the
statute of 1883, approved by the Governor and published as
statutes are required to be published, and the Governor's proc-
lamation. We are asked to decide that all the voters should
have inquired whether the statute was invalid by reason of
matters of which they had not been notified ; that the duty
was imposed upon them to make investigation into the his-
tory in the legislature of the bill for the act of 1883 ; to con-
sider questions as to the validity of the law arising out of the
proceedings in the legislature which preceded its final passage ;
to determine such questions correctly, or as petitioners claim
they should be determined (questions, it may be, difficult of
solution by the courts, with the aid of counsel learned in the
law), and then to vote for officers not mentioned in the Gov-
ernor's proclamation, in districts not defined in the law so as
•aforesaid to be mentally determined to be invalid, and not
recognized as continuing in existence by the executive or
other officers of the State. Thus to decide would be a formal
acknowledgment by this court of results which cannot be



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PEOPLE EX REL. LEVERSON V. THOMPSON. 5 1

treated as an intelligent and binding expression of the voice
of the people, and which are entirely beyond any consequence
legitimately derivative from the maxim that all are supposed
to know the law.

Whether anybody else was or was not elected to the
House of Representatives of the United States at the general
election, we are quite certain that the petitioners were not

Writ denied and petition dismissed.

McKee, J., Thornton, J., and Morrison, C. J., con-
curred.

Ross, J., concurring : I concur in the main in the views ex-
pressed by Mr. Justice McKinstry. I wish to add that, in
my opinion, the act of 1883 is a constitutional and valid law.

Section 15 of Article IV of the present constitution pro-
vides : " No law shall be passed except by bill. Nor shall any
bill be put upon its final passage until the same, with the
amendments thereto, shall have been printed for the use of
the members, nor shall any bill become a law unless the same
be read on three several days in each house, unless, in case of
urgency, two-thirds of the house where such bill may be
pending shall, by a vote of ayes and noes, dispense with this
provision. Any bill may originate in either house, but may
be amended or rejected by the other, and on the final passage
of all bills they shall be read at length, and the vote shall be
by yeas and nays upon each bill separately, and shall be
entered on the journal ; and no bill shall become a law with-
out a concurrence of a majority of the members elected to
each house."

It is earnestly insisted by the petitioners for the writ that
under thiis provision of the constitution it is requi-
site to the validity of a bill that each and every S^!S!Scirni w
amendment thereto should have been read on three "'^

several days in eaph house. It is very certain that the con-
stitution does not so provide in terms. The provision with
respect to the passage of bills is extremely explicit. Express
authority is given for the amendment of any bill in either
house, and it is expressly declared that no bill shall be put
upon its final passage until the same, with the amendments .
thereto, shall have been printed for the use of the members.
If it had been intended to provide that, except in case of ur-



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52



PEOPLE EX REL. LEVERSON V, THOMPSON.



gency, no bill shall become a law unless the same, with the
amendments thereto, be read on three several days in each
house, it would have been an easy matter to have said so.
The insertion of the words *' with the amendments thereto'*
in the first clause and their omission from the second, is, to m}^
mind, very strong evidence that the clause from which they
were omitted was not intended to afpply to them.

In Miller %k the State, 3 Ohio St.J479, it appeared that a bill
originally introduced in the senat^Jafter being read twice, and
on different days, was commitkol/to a select committee, who
reported it back withi^nfc amendment, to wit : " Strike out
all after the enacting *laase(!w[^ insert a new bill ;'* that on a
subsequent day, April r
itself amended, rwasjl^reed t^
ordered to be en)anrfsied and



elltl



his amendment, after being

and the bill, as amended,

^ a third time to-morrow ;

orrowWApril 13th, it was '* read the third time*'

^^-^ ving afterward passed the house, and been

signed by the presiding officers of the two

proper office, and published among the

lion of the State then provided that

shall DC fully and distinctly read on three

ays, unless, in case of urgency, three-fourths of the

which it shall be pending shall dispense with this




that on the
and pass*
duly enr^
houses, fite
laws. I\h
" eveir
diffqrei
house
rule

In that case it was claimed, as it is claimed here, that the
amendment was in facta *new bill,' and that it was only read
once, and therefore invalid under the constitutional pro-
vision quoted. In the course of the opinion the court,
speaking through Judge Thurman, said : " But, for argument's
sake, let it be admitted that the bill as amended was read
but once in the senate ; is the act for that reason void ?
That, counting the two readings before the amendment and
the final reading, the hill was read three times, is conceded,
for these readings are shown by the journal, and it is also
conceded that m general three readings of an amendment are
not necessary. But inasmuch as the amendment in this case
is styled in the journal a * new bill,* it is said that three read-
ings were necessary. Why necessary ? The amendment
was none the less an amendment because of the name given
it. It is not unusual in parliamentary proceedings to amend
a bill upon striking out all after the enacting clause and in-



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PEOPLE EX REL. LEVERSON V, THOMPSON. 53

serting a new bill. Jefferson's Manual, Sec. 5. When the
subject or proposition of the bill is thereby wholly changed
it would seem to be proper to read the amended bill three
times, and on different days ; but when there is no such vital
alteration three readings of the amendment are not re-
quired."

What is here said by the learned judge covers both points
made by the petitioners, for, apart from their claim that every
amendment must be read in each house on three several days,
it is contended that the purported amendment to the bill in
question was in fact no amendment, but a new bill. The
original bill was one to divide the State of California into
congressional districts, and the amendment adopted did but
change the lines of the districts as fixed in the original bill.
**The subject or proposition of the bill" was not at all
changed. When that is done the bill as amended should un-
doubtedly, as observed by Judge Thurman, be read on three
several days, for it then becomes in effect a new bill, but not
so when there is no such vital alteration.

In the case of The People v. Wallace, 70 III, 680, the Su-
preme Court of that State held that the constitutional pro-
vision of the State requiring bills to be read on three several
days before their passage did not apply to amendments, the
court saying : " It is also objected that the tenth section of the
act was not constitutionally adopted, because it was engrafted
as an amendment whilst the bill was being considered, and
was not read on three several days in the house adopting it
as an amendment. We are clearly of opinion that the re-
quirement does not apply to an amendment, and the objection
cannot prevail." See, also, McCulloch v. The State, 1 1 Ind.
434-5. Nothing here said conflicts with the decision in Weil
V, Kenfield, 54 Cal. iii, of the correctness of which I have no
question.

Myrick, J. — For the reasons given in the opinion of Mr.



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 6 of 73)