People ex rel. Orr v. Whiting

California Supreme Court

People ex rel. Orr v. Whiting

28 P. 445, 64 Cal. 67, 11 P.C.L.J. 657, 1883 Cal. LEXIS 568

CourtCalifornia Supreme Court

DecidedJuly 31, 1883

StatusPublished

Cited by5 cases

This text of 28 P. 445 (People ex rel. Orr v. Whiting) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Orr v. Whiting, 28 P. 445, 64 Cal. 67, 11 P.C.L.J. 657, 1883 Cal. LEXIS 568 (Cal. 1883).

Pincite

Opinion

Sharpstein, J.

By its terms, so much of the act of the legislature entitled “an act in relation to certain officers in Plumas County, and to fix the compensation thereof,” approved March 26, 1878, as provides for the election of a county recorder, took effect immediately and prior to the adoption of the present Constitution. Other parts of the act were by its terms not to take effect until the first Monday of March, 1880, and consequently were not in force at the adoption of said Constitution, which provides: “ That all laws in force at the adoption of this Constitution, not inconsistent therewith, shall remain in full force and effect until altered or repealed by the legislature. (Art. xxii. § 1.)

The portions of the act which could not take effect until after the adoption of the Constitution were obviously not in force at the adoption of it. But other portions of the same act were in force at that date. Such portions of this act as were not in force at the adoption of the Constitution never have and never will take effect. (Peachey v. Supervisors of Calaveras County, 59 Cal. 548; Speegle v. Joy, 60 Cal. 278; Whiting v. Haggard, 60 Cal. 513.)

The portions, which were in force at the adoption of the Constitution, are as distinct and separable from those which were not as it'is possible for different parts of the same act to be. That such was the understanding and intention of the legislature is evidenced by the enactment that one part should take effect immediately, and the other two years thereafter. This proves that in the opinion of the. legislature one part might stand and be executed independently of the other. If it could be for two years we are unable to discover why it could not be for all time. “If when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of [69]*69being executed in accordance with the apparent legislative intent wholly independent of that which was rejected, it must be sustained.” (Principles of Const. Law, 152.)

We are therefore of the opinion that on the facts disclosed by the record, the appellant is entitled to the office from which it is sought by this action to oust him. This renders it unnecessary to consider the other point discussed by counsel.

Judgment reversed and cause remanded with directions to the court below to sustain the demurrer to the complaint, with leave to the plaintiff to amend within ten days after receiving notice thereof.

Thobntob*, J., and Mybick, J., concurred.

Hearing in Bank denied.

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Sharpstein, J.

By its terms, so much of the act of the legislature entitled “an act in relation to certain officers in Plumas County, and to fix the compensation thereof,” approved March 26, 1878, as provides for the election of a county recorder, took effect immediately and prior to the adoption of the present Constitution. Other parts of the act were by its terms not to take effect until the first Monday of March, 1880, and consequently were not in force at the adoption of said Constitution, which provides: “ That all laws in force at the adoption of this Constitution, not inconsistent therewith, shall remain in full force and effect until altered or repealed by the legislature. (Art. xxii. § 1.)

The portions of the act which could not take effect until after the adoption of the Constitution were obviously not in force at the adoption of it. But other portions of the same act were in force at that date. Such portions of this act as were not in force at the adoption of the Constitution never have and never will take effect. (Peachey v. Supervisors of Calaveras County, 59 Cal. 548; Speegle v. Joy, 60 Cal. 278; Whiting v. Haggard, 60 Cal. 513.)

The portions, which were in force at the adoption of the Constitution, are as distinct and separable from those which were not as it'is possible for different parts of the same act to be. That such was the understanding and intention of the legislature is evidenced by the enactment that one part should take effect immediately, and the other two years thereafter. This proves that in the opinion of the. legislature one part might stand and be executed independently of the other. If it could be for two years we are unable to discover why it could not be for all time. “If when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of [69]*69being executed in accordance with the apparent legislative intent wholly independent of that which was rejected, it must be sustained.” (Principles of Const. Law, 152.)

We are therefore of the opinion that on the facts disclosed by the record, the appellant is entitled to the office from which it is sought by this action to oust him. This renders it unnecessary to consider the other point discussed by counsel.

Judgment reversed and cause remanded with directions to the court below to sustain the demurrer to the complaint, with leave to the plaintiff to amend within ten days after receiving notice thereof.

Thobntob*, J., and Mybick, J., concurred.

Hearing in Bank denied.

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28 P. 445, 64 Cal. 67, 11 P.C.L.J. 657, 1883 Cal. LEXIS 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-orr-v-whiting-cal-1883.

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