# Thomason v. Ruggles

> California Supreme Court · May 1, 1886 · 69 Cal. 465

URL: https://www.frixlaw.com/law-library/cases/5442520

## Case

- **Full name:** E. R. THOMASON v. C. S. RUGGLES, Superintendent of Public Streets, etc.
- **Court:** California Supreme Court
- **Decided:** May 1, 1886
- **Citations:** 69 Cal. 465; 11 P. 20; 1886 Cal. LEXIS 671
- **Precedential status:** Published
- **Opinion:** Concurrence by McKee
- **Judges:** McKee, McKinstry, Myrick, Ross, Sharpstein, Thornton
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5442520

## Opinion text

McKee, J., concurring.
In my judgment, the street law of the city and county of San Francisco (Stats. 1872, p. 804) was struck dead on the first day of January, 1880, by the provisions of section 19, article 11, of the constitution of the state, and section 1, article 22, constitution, so far as inconsistent with those provisions. (McDonald v. Patterson, 54 Cal. 248 ; Donahue v. Graham, 61 Cal. 276 .) On that day the constitution went into effect, and by its own terms became the supreme law of the state. About three years thereafter the legislature carried out the constitutional provisions upon the subject of street improvements, in the municipalities of the state, by conferring jurisdiction upon municipalities to order such work to be done in conformity with those provisions. (Stats. 1883, p. 32.)
It is contended, however, that section 19, article 11, of the constitution, has since been amended by striking out the inhibitory clause upon the exercise of jurisdiction to order street work to be done before assessment and collection of the money necessary to pay for it, as was required by the constitution; and that now, under the constitution as amended, such work may be ordered and contracted for without the cost and expenses of the work being first ascertained and determined and collected and paid into the municipal treasury.
There is no doubt of the fact that such an amendment to the constitution was proposed at the legislative session of 1884, and that it was voted for by two thirds of the members elected to each of the two houses. But I find' the fact to be that the proposed amendment was not entered in the journals of the houses as required by section 1, article 18, of the constitution, which provides:
“ Section 1. Any amendment or amendments to this ■ *474 'constitution may be proposed in the senate or 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 their journals, with the yeas and nays taken thereon,” etc.
That was one of the methods which the constitution provided for its amendment; the other method provided was a constitutional convention, to be called in the manner prescribed by section 2 of the same article. The constitution is therefore constitutionally amended only by one or other of these methods; and where the first is resorted to for the purpose of amendment, the manner prescribed must be substantially complied with, else no amendment takes place, for the rule is well settled, that when power is given to do a thing in a particular way, there the affirmative words marking out the particular way prohibits all others by implication. So that the particular way is the only way in which the power can be legally exercised. (Smith v. Stevens, 10 Wall. 321 ; 1 Kent’s Com. 467, note d.)
In adopting the proposed amendment of 1884, the legislature did not exercise its power in the manner prescribed by the constitution. The proposed amendment was not “entered upon the journals of both houses,” as the constitution commanded. What was done in lieu of such entry was to make on the journal of the senate “identifying reference” to the proposed amendment, in the following form: “ Senate bill No. 15.—Amendment to the constitution. To amend section 9 of article 13 of the constitution of the state of California.” (Senate Journal of 1884, p. 114.)
Is that an entry upon the journals within the intent and meaning of the constitution ? I think not.
To quote the language of Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 188 : “ The framers of the constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and *475 to have understood what they meant”; and when they declared that a proposed amendment to the constitution must be “entered upon the journals of both houses,” they meant just what the ordinary and popular signification of those terms import, and nothing less. To enter a paper upon a public journal or record is to inscribe; to enroll; to record it. (Webster’s Dictionary, tit. Enter.) “Entry, as a matter of record, is the act of setting down or causing to be set down, in writing; recording or causing to be recorded, in due form.” (Abbott’s Law Dictionary, p. 430, tit. Entry.) Enrollment or recordation is therefore the meaning of the constitution, and that meaning is not satisfied by a mere “identifying reference.”
I therefore think that the proposed amendment of 1884 was not constitutionally adopted; that it wrought no change in the constitution; and that the Vrooman statute of 1885, passed to carry out the provisions of the alleged amendment, is unconstitutional and void. Hence the only law under which street work can be ordered in the municipalities of the state is the statute of 1883, passed to carry out the provisions of the constitution as it was at the date of the passage of that statute; and upon these grounds, I think the demurrer to the petition in the proceedings in the court below was properly sustained.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5442520. Public record. Not legal advice.