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those named is left to be provided for in such courts and in such manner as the legislature shall prescribe. State harbor commissioner may be proceeded against for extortion and neglect in office upon complaint of private citizen, in District Court, under act of March 14, 1853 [Stats. p. 40.] In the matter of John Marks, 45 Cal. 199.
The section is referred to in Morton v. Broderick, 118 Cal. 483.
SECTION 20. No senator or member of assembly shall, during the term for which he shall have been elected, be appointed to any civil office of profit under this state which shall have been created or the emoluments of which shall have been increased during such term, except such offices as may be filled by election by the people.
The section does not prohibit a state senator from occupying the office of harbor commissioner, the salary of which office has not been increased during his senatorship.
SECTION 21. No person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this state; provided, that officers in the militia to which there is attached no annual salary, or local officers and postmasters whose compensation does not exceed five hundred dollars per annum, shall not be deemed lucrative.
A person who at the time of his election to the office of district judge was acting as inspector of customs of the United States at a salary of $3.75 per day, under and by virtue of appointment by the collector of the port at San Francisco, but which appointment was
never approved by the secretary of the treasury, was not ineligible to said judgeship. People v. Turner, 20 Cal. 143. Eligible means capable of being chosen; the subject of election or choice, and a person holding such office as is mentioned in this section at the time of being voted for is ineligible. The word compensation means the income of the office and not the net profits of it. Searcy v. Grow, 15 Cal. 118. [See also People v. Whitiman, 10 Id. 38; Sanders v. Haynes, 13 Id. 146.] And votes given for an ineligible candidate are not to be counted for the next highest candidate. Id. See also People v. Leonard, 73 Cal. 230.
The office of harbor commissioner of San Francisco, to which there is attached a salary of one thousand dollars per annum, is a lucrative office. A mere de facto incumbency of such office would not render the incumbent ineligible to a county office. He must be an incumbent de jure to render him ineligible. [People v. Turner, 20 Cal. 142.] Crawford v. Dunbar, 52 Cal. 36.
SECTION 22. No person who shall be convicted of the embezzlement or defalcation of the public funds of this state shall ever be eligible to any office of honor, trust or profit under this state; and the legislature shall, as soon as practicable, pass a law providing for the punishment of such embezzlement or defalcation as a felony.
SECTION 23. No money shall be drawn from the treasury but in consequence of appropriations made by law. An accurate statement of the receipts and expenditures of the public moneys shall be attached to and published with the laws at every regular session of the legislature.
When no appropriation has been made, mandamus will not lie to compel the controller to draw his warrant for payment of any demand, that is, unless the appropriation therefor has been made either by the constitution or an act of the legislature. McCauley v. Brooks, 16 Cal. 11; approved in Baggett v. Dunn, 69 Cal. 77. "Not otherwise appropriated," refers to the time of the act in which the phrase is used, or to the appropriation acts of the same legislature, and not to any subsequent legislature, nor to a fund to be afterwards paid into the treasury to be appropriated by a subsequent legislature for the purposes for which such fund is designed. Baggett v. Dunn, supra. McCauley v. Brooks is commented on in Stratton v. Green, 45 Cal. 151, and the rule upon the same subject laid down in Redding v. Bell, 4 Cal. 333, is adopted, wherein it is held that the act creating the office of state printer and directing the controller to draw his warrants on the treasurer for such sums as may be due the state printer, is not a specific appropriation. It must appear that there is money in the treasury not otherwise appropriated out of which the compensation is required to be paid. See also English v. Supervisors, 19 Cal. 184, and cases there cited.
SECTION 24. The members of the legislature shall receive for their services a compensation to be fixed by law, and paid out of the public treasury; but no increase of the compensation shall take effect during the term for which the members of either house shall have been elected.
SECTION 25. Every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title; and no law shall be revised or amended by reference to its title; but in such case the act revised or section amended shall be reenacted and published at length.
This clause is held to be directory only. S. F. v. S. V. W. W. Co., 54 Cal. 571, citing Washington v. Page, 4 Cal. 388; Pierpont v. Crouch, 10 Id. 315. The act will be valid if the subjects embraced in the same statute and not expressed by the title have congruity or proper connection. De Witt v. San Francisco, 2 Cal. 289.
A statute "to regulate fees in office" is not unconstitutional under this section, because it provides, in addition to the fees of the officer, that he shall pay part of the fees of the office into the treasury. Ream . Siskiyou Co., 36 Cal. 620.
Under this section, if a statute or section of a statute is re-enacted, it is totally inconsistent with the idea that the old statute or section remains in force, or has vitality for any purpose whatever. The re-enactment creates anew the rule of action, and even if there is not the slightest difference in the phraseology of the two, the latter alone can be referred to as the law. The running of statute of limitations would commence with the latest act, and the former act on same subject is absolutely repealed. Billings . Harvey, 6 Cal. 382; Billings v. Hall, 7 Id. 1; Nelson v. Nelson, 6 Id.
SECTION 26. No divorce shall be granted by the legislature.
SECTION 27. No lottery shall be allowed by this state, nor shall the sale of lottery tickets be allowed.
SECTION 28. The enumeration of the inhabitants of this state shall be taken, under the direction of the legislature, in the years one thousand eight hundred and fifty-two, and one thousand eight hundred and fifty-five, and at the end of every ten years thereafter; and these enumerations, together with the census that may be taken under the direction of the congress of the United States, in the year one thousand eight hundred and fifty, and every subsequent ten years, shall serve as the basis of representation in both houses of the legislature.
SECTION 29. The number of senators and members of assembly shall, at the first session of the legislature holden after the enumerations herein provided for are made, be fixed by the legislature and apportioned among the several counties and districts to be established by lay, according to the number of white inhabitants. The number of members of assembly shall not be less than twenty-four nor more than thirty-six, until the number of inhabitants within this state shall amount to one hundred thousand; and, after that period, in such ratio that the whole number of members of assembly shall never be less than thirty nor more than eighty.
When a congressional, senatorial or assembly district shall be composed of two or more counties, it shall not be separated by any county belonging to another district. No county shall be divided in forming a congressional, senatorial or assembly district, so as to attach one portion of a county to another county; but the legislature may divide each county into as many congressional, senatorial or assembly districts as such county may by apportionment be entitled to. [Amendment ratified Sept. 3, 1862.]