CASES

IN THE

SUPREME COURT

OF

CALIFORNIA

[IN BANK.]

OAKLAND PAVING COMPANY v. TOMPKINS.

[72 CALIFORNIA, 5.]

TO ENTER PRIMARILY MEANS TO GO IN OR TO COME IN.

It also some. times means to register the essential fact concerning the thing said to be entered. CONSTITUTIONAL PROVISION REQUIRING AMENDMENTS TO CONSTITUTION TO ⚫ BE ENTERED on the journals of the senate and assembly is satisfied by the entry on such journals of an identifying reference. The amendment need not be copied in full upon such journal.

MANDATE to require the execution of a contract by a city marshal for street work. Whether the mandate should issue or not depended on the validity of a constitutional amendment, which was assailed on the ground that such amendment had not been entered on the journals of the senate and assembly. The only supposed defect with respect to such entry was the failure to copy the amendment in full on the journals. C. T. Johns, for the appellant.

J. H. Boalt, Henry Vrooman, and C. T. H. Palmer, for the respondent.

By Court, TEMPLE, J. This case arises from a street assessment in Oakland. The only question subinitted is, whether the constitutional amendment No. 1, ratified by the electors at the general election in 1884, being an amendment to section 19, article 11, was proposed by the legislature as required by section 1, article 18, of the constitution. That section provides

that amendments may "be proposed in the senate and assembly, and if two thirds of all the members elected to each of the two houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in the journals, with the yeas and nays taken thereon," etc.

The objection is, that the proposed amendment was not entered in the journal of either house, as required by the constitution.

It was not copied into the journal, but there was entered an identifying reference, such as is always entered in regard to legislative bills; that is, it was proposed as a senate bill, and was referred to by title and number. The yeas and nays were entered as directed. It is agreed that the amendment thus proposed was submitted to the people, and received a very large majority of the votes cast.

This question is not a new one in this court. In People v. Strother, 67 Cal. 624, it was the only issue of any importance, and it was squarely decided that the amendment had been. constitutionally adopted. This was in bank, and there was no apparent dissent. This decision was in October, 1885, and in the following May, in the case of the Oakland Paving Co. v. Hilton, 69 Cal. 479, an opinion was rendered by Justice Thornton, which was concurred in by Mr. Justice McKee, holding to the contrary. The other members of the court who participated in that decision based their concurrence on other grounds.

It is contended that in this condition of the decisions the question ought to be considered an open one. We do not accede to this proposition. In the case of People v. Strother, supra, the point was squarely presented, was the only one involved, and was plainly and unequivocally decided. We see no reason why it is not entitled to the usual authority of a precedent; nor do we concede that in so deciding there was error. All admit that the constitutional requirement must be strictly performed. But it does not follow from this that the language of the instrument must be understood literally. The same rules of construction must be applied to ascertain what its requirements are, as though it were not mandatory and prohibitory. And we think when an act commanded or authorized may be done in different ways, either of which would be a strict compliance with the terms of the instrument understood in some common and popular sense, either mode may be pursued, unless some reason is discoverable for holding

that one of such modes only will answer. If, for instance, the direction to enter the amendment in the journal is complied with, in some usual and popular sense of the language, either by copying the amendment into the journal, or by placing upon the journal an identifying reference only, either will do, unless the context shows a different intention.

Now the word "enter" primarily means to go in or to come in, but has many derivative meanings, and is often employed in elliptical expressions, and is quite apt to be so used that the literal or most obvious meaning cannot be attributed to it. We read, for instance, in the laws of Congress that citizens may enter at the land-office a tract of land, and the expression is repeated in different forms many times. We are often told that a certain horse has been entered for a race, or an animal has been entered at a fair. What is really done in each instance is to make a record of certain important facts for preservation or notice. And such is certainly a very ordinary meaning of the word "enter" when used in this derivative sense; that is, to register the essential facts concerning the thing said to be entered. And we think it may be fully admitted that the most natural and obvious meaning of the word when employed in this derivative sense is to copy, without greatly affecting the argument.

We find near the title-page of nearly every book printed that it has been entered in the office of the librarian of Congress. What is really left with the librarian is the title-page of the proposed book, and this constitutes the entry, although after it is printed the author is now required to present a copy of the book for the congressional library. We sometimes read that a certain play of Shakespeare was entered at Stationers' Hall. We find that the entry really made was a brief identifying reference, preliminary to obtaining license to print. Such instances of the use of the word, and of the phrase in which it occurs, might be multiplied indefinitely, but these are enough to show that this usage is quite common. Now, if we substitute in all these and like cases the word copy or the phrase "enter at large" for the word "enter," we are conscious at once that a great change has been made. Indeed, the mere fact that the qualifying words "at large," "at length," "in full," do so often accompany the word "enter," is proof that all feel that it is not a synonym of the word "copy."

The language, however, had been construed under the old

constitution, which contained the same words, and under which amendments had been adopted in the mode pursued in this case.

The practice of both houses of the legislature had given this construction to similar language. The joint rules have always required, as also do the rules of the House of Representatives of Congress, that at a certain stage in the passage of a bill it shall be entered on the records of the house. They have always been so entered by identifying reference. The convention itself adopted Cushing's Manual, which employs similar language which is so used that it must be similarly understood.

Many statutes in force at the time the convention was in session employ the language in the same sense: Pol. Code, secs. 254, 656, 4031; Civ. Code, sec. 324.

The convention adopted the language under consideration with knowledge of the practical construction which had been given to the same words under the old constitution, and in view of the established usage of the legislature as to entries in the journals. It knew that the practice had always been to consider similar matters entered on the journals when there was made a simple identifying reference. It knew also of the common usage to which we have referred; and it is fair to presume that it intended the same meaning. Otherwise it would have used some language which would indicate that a different entry was required from that which was habitually made in the journals. In addition to this, we have the authority of both houses, which have declared the proposal duly made, and the amendment duly adopted; of the executive who submitted it to the people; and whatever force there be in the fact that the people acted upon and ratified it.

As

This is sufficient to uphold the amendment, unless we can see from the context that something else was meant. We perceive no such intent. The evident purpose of the entire provision doubtless was to preserve a record of the vote. a majority controls the journals, it may have been apprehended that it might be made to appear that the proposal was duly passed, although lacking the requisite majority, and so it was required that the yeas and nays be entered. But however this may be, the principal thing is the record of the yeas and nays, and this purpose is accomplished as perfectly by the entry made as it would be by any other.

As to preserving the identity of the amendment proposed,

there is no greater difficulty in this matter than with reference to bills. That is left to be provided for by the legislature.

The parties agree that in case the amendment was properly adopted the judgment should be affirmed. It is stipulated that in the proceedings there was full compliance, both with the street laws prior to 1880 and with the law of 1885. It is therefore not necessary to decide which law is in force. That question is really stipulated out of the case.

Judgment affirmed.

PATERSON, MCFARLAND, MCKINSTRY, and SHARPSTEIN, JJ., and MORRISON, C. J., concurred.

THORNTON, J., dissented.

ENTERING CONSTITUTIONAL AMENDMENTS IN JOURNALS OF LEGISLATURE. In the constitutions of many of the American states are provisions authorízing their amendment, and providing, in substance, that amendments may be proposed in the senate and assembly of the state, and if sufficient of the members shall vote in favor thereof, then that the amendment or amendments shall be entered in the journals, with the yeas and the nays taken thereon. In at least three states the question has arisen whether this command to enter the amendments in the journal signifies that they shall be entered in full, or may be satisfied by the entry upon the journals of some reference to the amendments, indicating the action taken thereon.

The question first arose in California, in the case of People v. Strother, 67 Cal. 624; and while it was undoubtedly there decided, there is nothing in the case as reported to make known the reasoning upon which the decision was based, nor, indeed, to give any hint of the real subject there under consideration.

The second case was that of Oakland Paving Co. v. Hilton, 69 Cal. 479. In that case, the question was considered at great length in the opinion of Mr. Justice Thornton, in which Mr. Justice McKee concurred. But as the question was not essential to the disposition of the case, and as none of the other justices expressed any opinion thereon, that case cannot be regarded as an authority upon the subject, one way or the other. It is sufficient for our present purpose to state that the opinions of justices Thornton and McKee were the reverse of those announced by the court in the case first cited, and Also in the principal case.

So far as we are aware, the question first arose in what was known as the Prohibitory Amendment Cases, 24 Kan. 700. The court there took a position which went very far toward the judicial indorsement of the doctrine that there is a higher law than the constitution. "The central idea of the KanFas law," said the court, "as of Kansas history, is, that substance of right is grander and more potent than methods and forms. The two important, vital elements in any constitutional amendment are the assent of two thirds of the legislature and a majority of the popular vote. Beyond these, their provisions are merely machinery and forms." As may be inferred from this judicial exordium, the court considered itself at liberty to treat this provision of the constitution as being directory merely. It reached this conclusion