Page images
PDF
EPUB

OF THE

STATE OF CALIFORNIA;

IN

FOUR CODES :

POLITICAL, CIVIL, CIVIL PROCEDURE, AND PENAL.

POLITICAL CODE.

SACRAMENTO:
T. A. SPRINGER, STATE PRINTER.

1872.

[ocr errors][merged small][merged small]

INTRODUCTORY NOTE.

This volume nearly completes the work of the Commission. It has yet to undergo that final revision which has been bestowed upon each Code. The Codes are numbered from one to four, inclusive, in the following order: Political, Civil, Civil Procedure, and Penal. They, however, bear no dependent relation toward each other; each work is complete in itself, and each constitutes a separate Act; they were, in fact, completed—as in our opinion they ought to be examined and adopted—in the inverse order of their numbering.

We have not attempted to do anything relative to the Fees and Salaries of County Officers, except to recapitulate the salaries of County Judges and District Attorneys as the law fixes them.

It would be impossible at this day to establish a uniform and permanent system of fees and salaries. Each legislative year will bring contests over this subject, and it was deemed advisable to let the matter rest in the statutes, rather than to carry the present fee bills, at great expense, into a Code intended to be permanent.

Roads and Highways presented another subject of difficulty. Not less than one hundred and twenty-five Acts concerning roads and highways have been placed upon the statute books. We have prepared a general law, and inserted it as a chapter under Title VI of Part III. It is doubtful whether the condition of the State admits to-day of a general Road Law; if it does, the policy of enacting one is not a debatable question. In order that a difference of opinion on this question may not jeopardize the adoption of this Code, we have prepared an alternate chapter continuing in force the existing laws.

The subject of Revenue presented serious difficulties. Each legislative year brings with it changes and amendments in the Revenue Laws, and it may well be doubted whether anything permanent can be adopted until we have changes in the State Constitution. In obedience to the law creating this Commission, we have inserted as Title IX of Part III a Revenue Law, and have also placed an alternate title in relation to Revenue which continues in force the present law, remitting the question to the wisdom of the Legislature.

Leaving out of consideration the subject of Fees and Salaries of County Officers, Roads and Highways, and Revenue, this Code is broader in its scope and leaves less to rest in yearly statutes than any Political Code ever presented for the consideration of a legislative body in a common law country.

Part V of this Code contains provisions which will apply to all the Codes. It relates to the definition and sources of law; the common law; the publication and effect of the Codes; and the express repeal of statutes.

It is there provided that with relation to the Acts passed at this session of the Legislature the Codes must be construed as though they had been passed on the first day of the session; or, in other words, all laws passed at the present session prevail over laws upon the same subject in the Codes.

With relation to each other, the Codes must be construed as though they had all been passed upon the same day and were parts of the same Acts.

This part also contains the rules by which conflicting sections (if any should be found) are to be harmonized. It provides for the publication of the Code, and expressly repeals all general laws the subject matter of which has been taken into the Codes.

The Commission are of the opinion that the Codes should take effect upon the first day of January, eighteen hundred and seventythree, thus giving one year in which to publish and circulate them, and one year for their operation before the next Legislature assembles. In the last year the imperfections and incongruities which necessarily attend a work of this character will be apparent, and can then be remedied.

A singular misapprehension exists in circles that ought to be better informed, both as to the duties of and as to what the Commission has done. The statute of March twenty-eighth, eighteen hundred and sixty-eight, created a Commission to effect a revision

COSTA RW

of the laws, and provided among other things that it should “supply such additional provisions as may be required for the public welfare." The Act of April fourth, eighteen hundred and seventy, under which the present Commission was created, provides that this Commission should continue the labors of the one formed under the first Act, and should also "recommend all such enactments as shall in the judgment of the Commission be necessary to supply the defects of and give completeness to the existing legislation of the State, and prepare and present bills therefor."

It will be seen that there was no limit set to the power of either Commission; the discretion of the Commissioners, and that alone, marked the extent of their powers.

Passing from the question of power to what we deemed "requisite for the public welfare," or as to what would give si completeness to existing legislation," it will be found that we contented ourselves in the main with an adherence to existing laws. The Penal Code, Code of Civil Procedure, and Political Code, embody existing laws, arranged in a convenient and logical form. Some slight additions have been made to give completeness to certain subjects; and the practice in civil actions, after judgment, has been simplified. We had but few laws that related to the civil rights of "persons and things"-such as the laws relating to the tenure, transfer, and mortgage of property; corporations, descents, and distributions; wills, notes, and bills of exchange, etc. All of these we have substantially retained, but they have been taken into what we present as the “ Civil Code."

That Code is chiefly the work of the New York Commission. We took the New York Civil Code, and in place of the corresponding chapters, inserted our own laws, modified the rest of it to harmonize with our system, and recommend its adoption as a whole. It embodies the elementary principles of the common law relating to the ordinary business transactions of life; and while it would, if adopted, lighten the labors of the Bench and Bar, it would also give to the business man, in an accessible form, plain and simple rules for the conduct of his affairs. If any valid objections are urged to it, we have our own laws, that make part of the bill for a "Civil Code” as we have presented it, so well in hand that they can be drawn from the bill in a few hours, and, if adopted, would make a Civil Code of about one hundred and fifty pages, and thus the whole work would be in fact a revision.

« PreviousContinue »