People v. Sassovich, 29 Cal. 480 (Cal.)

By the Court, Sanderson, J.

The following points are made upon this appeal:

The rules by which Constitutions are to be construed when the validity of an Act of the Legislature is brought in question were elaborately considered by us in Bourland v. Hildreth, 26 Cal. 180-225, and therefore need not be specially considered in this place. It is well settled that every Act deliberately passed by the Legislature must be regarded by the # Courts as valid unless it is clearly and manifestly repugnant to some provision of the Constitution. The people must not be deprived, by judicial construction, of their prerogative right to declare, through the Legislature, what shall be the. rule in a given case upon the mere conjecture or suspicion that they have already declared their will upon that subject in the Constitution. Nothing short of a constitutional prohibition, so explicit and clear as to leave no reasonable doubt

upon the mind, can justify the Courts in declaring an Act of the Legislature null and void. If, in the presence of opposing reasons the judicial mind, guided by legal rules of construction, hesitates, the question is already decided and a conclusion is already reached.

The language of the Constitution which the present case presents for construction, is as follows :

It is claimed on the part of the appellant that the number of the districts is permanently fixed and established by the foregoing provision of the Constitution, and that the Legislature therefore has no power either to increase or diminish it.

In support of this construction we must confess that counsel for the appellant has filed an able and ingenious argument, but in our judgment it lacks that conclusiveness which the rule of construction already suggested demands. The argument is drawn mainly from the rules of syntax, and chiefly turns upon the question as to what is the antecedent of the qualifying phrase, “ subject to such alteration,” etc. And it is claimed that the antecedent of that phrase finds full expression in the sjngle word “ districts.” That such is the case, w'hen considered in the light of the strictest rules of syntax, cannot be affirmed beyond all reasonable doubt, in our judgment.

A qualifying phrase does not always bear relation to a single word, noun or pronoun, as its antecedent; on the contrary it may, and frequently does, have another phrase or sentence as its object of relation. Treating the question, then, as a question in grammar only, may it not be claimed with equal certainty that the entire phrase “ fourteen judicial districts ” is the antecedent of the phrase “ subject to be altered.” If so the word “ fourteen ” is brought within the operation of

the words “to be altered” or “alteration,” to use the precise word employed in the Constitution, and is qualified thereby. Thus the exact antecedent of the phrase in question may be found in a full answer to the question, “ what is to be subject to alteration?” which answer is, “the fourteen judicial districts.” If the entire expression “the fourteen judicial districts ” may be taken as the grammatical antecedent of the qualifying phrase in question it follows that the Legislature may “ alter ” the number of the districts as well as their extent.

But it is claimed that to thus interpret the word “ alteration” is to strip the verb “to alter” of its own appropriate sense and to use it in the sense of “ to create.” The criticism, however, is without substance. “To alter” is “to change.” While it might be more exact, when speaking of a number with a view to its change, to employ the words “increase” or “ diminish ” it cannot be affirmed but their places may be efficiently filled by the words “to change” or “to alter.” On the contrary each of the "two latter are more comprehensive terms and embrace both of the former. It is not a violation of usage, which is the law of language, to speak of the increasing or diminishing of a given number as a change or alteration of the number, although perhaps less exact than the words “ increase ” and “ diminish.” Were one to speak of the change or alteration of the number of the districts or counties of the State, there could be no doubt as to his meaning, nor could his language be made the subject of just criticism.

But without dwelling further upon this line of argument it is sufficient to say that all questions depending for their solution mainly upon the rules of syntax must be solved more by mere intuition than by reasoning and deduction. In such cases the view is generally limited to a single sentence or a phrase. We read the disputed passage and the mind intuitively perceives that its meaning is obvious or doubtful, or that from a want of exactness in its terms, it is susceptible of two readings. The one or the other conclusion is reached immediately without the intervention of other ideas brought

into play by some process of reasoning upon the meaning and collocation of words.

So it is in the present case. We have carefully read the language in question and are not prepared to say, beyond a.ll reasonable doubt, that the legislative construction is not correct.

A further argument in support of our conclusion might be drawn from a comparison of the language of the old Constitution with that under consideration, and a reference to the construction of the former, as universally recognized and sanctioned by every department of the State government from its foundation until the recent change in its fundamental law; but we deem further discussion unnecessary and are content to leave the question at the point already reached.

That the second point cannot be sustained in this action does not admit of debate. The person who filled the office of Judge at the time this case was tried was appointed and commissioned by the Governor under and in pursuance of the provisions of the Act in question. He entered therefore under color of right and title to the office, and became Judge de facto if not de jure, and his title to the office cannot be questioned in this collateral mode. (The People v. White, 24 Wend. 539; McInstry v. Tanner, 9 John. 133; Hildreth's Heirs v. McIntire's Devisee, 1 J. J. Marshall 206.) His title can only be questioned in an action brought directly for that purpose as provided in the fifth chapter of the Practice Act. The acts of de facto officers must be held valid as respects the public and the rights of third persons. A contrary doctrine, for obvious reasons, would lead to most pernicious results.

The judgment is affirmed and the Court below is directed to appoint a day for the execution of its sentence.