SECTION 37. It shall be the duty of the legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debts by such municipal corporations.

An ordinance of city of Oakland imposing a license tax of fifty dollars every ninety days upon business of retailing liquors, is not unconstitutional, and that it is more than is imposed upon other classes of business, does not render it objectionable. The power to fix licenses is a branch of the taxing power, which is itself discriminating. Ex parte Hurl, 49 Cal. 557.

So far as municipal corporations are intrusted with subordinate legislative powers for local purposes, they are mere instrumentalities of the state for the convenient administration of government, and their powers are under the entire control of the legislature, to be modified, expanded or taken away at the pleasure of the legislature. But when property becomes vested in such municipality, such property is invested with the security of other private rights, and the title to this property cannot be divested by subsequent legislative enactment. Grogan v. San Francisco, 18 Cal. 590. These principles are involved in the "city slip cases," several of which are cited in Herzo v. San Francisco, 33 Cal. 140. That as to the administration of municipal affairs, as municipalities are created in this state, the "mode" prescribed by their charters

or incorporating acts, is the "measure of power." See Zoltman v. San Francisco, 20

Cal. 96, and Herzo v. San Francisco, supra.

SECTION 38. In all elections by the legislature the members thereof shall vote viva voce, and the votes shall be entered on the journal.

SECTION 39. In order that no inconvenience may result to the public service from the taking effect of the amendments proposed to article IV by the legislature of eighteen hundred and sixty-one, no officer shall be suspended or superseded thereby until the election and qualification of the several officers provided for in said amendments. [New section ratified Sept. 3, 1862.]

ARTICLE V.

EXECUTIVE DEPARTMENT.

SECTION 1. The supreme executive power of the state shall be vested in a chief magistrate, who shall be styled the governor of the state of California.

SECTION 2. The governor shall be elected by the qualified electors, at the time and places of voting for members of the assembly, and shall hold his office for four years from and after the first Monday in December subsequent to his election: and until his successor is elected and qualified. [Amendment ratified Sept. 3, 1862.]

[ORIGINAL SECTION.]

SECTION 2. The governor shall be elected by the qualified electors, at the time and places of voting for members of assembly, and shall hold his office two years from the time of his installation, and until his successor shall be qualified.

SECTION 3. No person shall be eligible to the office of governor (except at the first election) who has not been a citizen of the United States and a

resident of this state two years next preceding the election, and attained the age of twenty-five years at the time of said election.

SECTION 4. The returns of every election for governor shall be sealed up and transmitted to the seat of government, directed to the speaker of the assembly, who shall, during the first week of the session, open and publish them in presence of both houses of the legislature. The person having the highest number of votes shall be governor; but in case any two or more have an equal and the highest number of votes, the legislature shall, by joint vote of both houses, choose one of said persons so having an equal and the highest number of votes, for governor.

SECTION 5. The governor shall be commanderin-chief of the militia, the army, and navy of this

state.

SECTION 6. He shall transact all executive business with the officers of government, civil and military, and may require information in writing from the officers of the executive department, upon any subject relating to the duties of their respective offices.

SECTION 7. He shall see that the laws are faithfully executed.

SECTION 8. When any office shall, from any cause, become vacant, and no mode is provided by the constitution and law for filling such vacancy, the governor shall have power to fill such vacancy by granting a commission, which shall expire at the end of the next session of the legislature, or at the next election by the people.

There is no vacancy to which the governor can appoint, so long as there is a person in possession of the office who is authorized by the statute or constitution to discharge its

duties until an election or appointment can be regularly had. People v. Tilton, 37 Cal. 614. For discussion of the section, see also People v. Parker, Id. 639. This section only applies to those cases of vacancies, for filling which no other provision has been made by the "constitution and laws," and has no application to cases provided for by the law of 1851. [Stats. 1851 p. 415.] Wetherbee v. Cazneau, 20 Cal. 504.

Power to fill an office and power to fill a vacancy are distinct and substantial. People v. Langdon, 8 Cal. 1. It was the intention of this section to limit the patronage of the governor. People v. Mizner, 7 Cal. 519, where previous decisions under this section are reviewed.

The word vacancy must be taken in the sense in which it is used by the framers of our constitution, and cannot receive a definition from the legislature different from its known signification. The legislature may say how a vacancy may be filled, but cannot determine what shall constitute one. Temporary absence of a judge from the state does not create a vacancy. People v. Wells, 2 Cal. 199, and see People v. Whitman, 10 Cal. 48.

The section has in view vacancies in office where the governor and senate or legislature have the power of appointment, or where they are elective by the people, and provides accordingly; but such power of the governor is limited by the period when the people or the legislature can elect or appoint, on the arrival

of which his power ceases, and the right of appointment returns to the proper appointing power. The right of the legislature to elect aud control the state printer cannot be defeated by any inference in favor of the appointing power of the governor. People v. Fitch, 1 Cal. 520.

SECTION 9. He may, on extraordinary occasions, convene the legislature by proclamation, and shall state to both houses, when assembled, the purpose for which they shall have been convened.

SECTION 10. He shall communicate by message to the legislature, at every session, the condition of the state, and recommend such matters as he shall deem expedient.

SECTION 11. In case of a disagreement between the two houses with respect to the time of adjournment, the governor shall have power to adjourn the legislature to such time as he may think proper; provided, it be not beyond the time fixed for the meeting of the next legislature.

SECTION 12. No person shall, while holding any office under the United States, or this state, exercise the office of governor, except as hereinafter expressly provided.

SECTION 13. The governor shall have the power to grant reprieves and pardons after conviction for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason, he shall have the power to suspend the execution of the sentence until the case shall be reported to the legislature at its next meeting, when the legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve.