Page images
PDF
EPUB

Pacific Coast Law Journal.

VOL. 2.

OCTOBER 26, 1878.

No. 9.

Current Topics.

THE Commissioner of the General Land Office, in deciding the matter of the Hope Mining Company's application for a patent for the Potosi Lode, announces the following new and important ruling in regard to the width of all lode claims. Referring to Section 2320 of the Revised Statutes, which provides that no claims shall extend more than 300 feet on each side of the vein at the surface, he says: When the vein outcrops at the surface, there can be no question as to the point from which the lateral measurement must begin; but when a discovery shaft develops the vein at some distance below the surface, the locator does not determine by any further prospecting that the nearest actual surface point is elsewhere, and the fact does not otherwise appear, I am of the opinion that the point of vein so discovered must be assumed to be the middle of the vein, and the lateral measurement must be calculated therefrom. The law is mandatory, and contemplates that but 300 feet shall be taken on either side of the vein, and compliance with law necessitates the fixing of the point from which these measurements begin. I think the rule above indicated is the only one practicable. In this case, the width of the claim on one side being more than 300 feet from the discovery opening, the plot and field note are returned to the Surveyor-General for corrections. All other objections, and the protests against the Company's application, are, however, overruled.

THE Commissioner of the General Land Office, in the course of a decision refusing the application of certain parties

to be allowed to relocate the American Hill Quartz Mine, recently announced the following new and important rulings, which are intended to prevent the success of large classes of "jumpers:" 1. A mining claim is not subject to relocation subsequent to its entry. 2. A failure to perform labor or make improvements required by Section 2324 of Revised Statutes between the date of entry and delivery of the patent does not work a forfeiture of the rights acquired by entry, nor demand its cancellation when such failure is brought to the attention of the General Land Office by such relocation or otherwise. 3. The annual expenditures named in Section 2324 are required to support the possessory title only. 4. The objections from third parties, which, by the last clause of Section 2325, may be heard, relate only to the conditions of purchase, and not to those of possession.

SECRETARY SCHURZ affirmed Commissioner Williamson's decision regarding lands in San Francisco district entered by Patrick Closby, involving the legal question whether lands excepted from grants to the Pacific Railroad Company, because within claimed limits of a Mexican rancho at the date of withdrawal, are subject to entry at $1 25 per acre. The Secretary holds that $2 50 per acre must be paid, regardless of the language of the Act of March 3, 1853. This decision covers the cases of settlers on lands excluded from the rancho Sespe by the final survey.

MR. SCHELL, of Stanislaus, offered the following, which was referred to the Judiciary Committee: "When a judgment or decree is reversed or affirmed by the Supreme Court, every point upon the case shall be considered and decided, and the reasons therefor shall be concisely stated in writing, and preserved with the record of the case, and it shall be the duty of the court to prepare a syllabus of the points adjudicated in each case concurred in by three of the Judges thereof, which shall be prefixed to the published report of the case."

We must express our entire approval of this amendment, and have no doubt that the Committee will incorporate it in

their report. In a large number of the judgments that are affirmed by the court, where no opinion is written, it is impossible for even the attorneys who argued, and are interested in, the cases, to know the principle governing the court, or points considered by it, no reasons being assigned therefor. A concise statement of the facts will not disclose the points, and is often both misleading and injurious. This is demonstrated to us perhaps more conclusively than to others, as we are constantly examining the records in this class of cases, and must admit that even a correct statement of the facts will not, in nine cases out of ten, point the profession to a single path which will lead to the reasons for the judgment of the court.

THE Judiciary Committee of the Constitutional Convention have agreed to report the following changes to be made in the Constitution:

The judicial power shall be vested in a Supreme Court, Superior Courts, Justices' Courts, and such inferior courts as the Legislature may establish.

The Supreme Court shall consist of five Justices. They shall sit at the capital. Their salaries shall be $7,000 per annum for six years.

They have agreed that a commission of five may be appointed by a two-thirds vote of the Legislature to sit as an Appellate Court to assist the Supreme Court when necessary.

The Supreme Court shall have jurisdiction to be determined by the Legislature; and there shall be one in each county, except San Francisco, Alameda, Los Angeles, and Sacramento; these counties, except San Francisco, shall have two; San Francisco shall have as many as there are judges sitting within said county under the present system. The Legislature may increase the number by a two-thirds vote.

The Justices' Court shall have jurisdiction in forcible entry and detainer cases where the rent does not exceed $25 per month, and the amount in controversy does not exceed $200.

The desire of the committee seems to be to make a simple, though complete and effective, system, When the report shall have been accepted we will make a full publication.

Supreme Court of California.

JULY TERM.

[No. 10,361.]

[Filed October 1, 1878.]

EX PARTE FRASER, HABEAS CORPUS.

POWERS OF THE LEGISLATURE-CONSTITUTIONAL PROVISION, "CORPORATIONS SHALL NOT BE CREATED BY SPECIAL ACT," REVIEWed-ConstituTIONALITY OF THE "QUACKERY ACT."-It was not the intention of the Legislature to confer the power of appointment upon the particular corporations named in the Act of April 3, 1876, as amended in 1878. The words "existing corporations" may be treated as merely descriptio personarum. And as the State, in the exercise of the police power, may provide for boards authorized to examine persons seeking to be admitted to practice medicine to be appointed by any citizen named, the Legislature did not exceed its powers contained in the provision that corportions may be formed under the general laws, but shall not be created by special act.

IDEM.-Assuming that the portions of the act requiring the payment of fees are unconstitutional, they are not so connected with the rest as to render invalid any other portion. It is well settled that if a provision, which is not obnoxious to objection, is found even in the same section with another which is repugnant to the Constitution, the one in itself valid and complete must be sustained, unless the two are so united as that it must be presumed the Legislature would not have adopted the one without the other. (49 Cal. 482; 22 Cal. 379; 5 Gray, 485.)

Section 1 of the amended act referred to in the opinion requires that every person in this State practicing medicine or surgery shall possess the qualifications required by this act. That every such person shall present his diploma to one of the boards of examiners named in the act, and that if such diploma is genuine said board shall issue its certificate to that effect.

Section 2 of said act gives authority to the Medical Society of the State of California, the Eclectic Medical Society of the State of California, and the California State Homeopathic Medical Society, corporations organized and existing under the laws of the State as the only corporation, society, person, or persons, to appoint annually a board of examiners who shall examine all diplomas and issue certificates.

Section 4 entitles the secretary of said board to collect a fee of five dollars from each graduate or licentiate whose diploma is genuine, and twenty dollars from all applicants whose are fraudulent.

Section 8 makes it a misdemeanor for any person, except one appointed by a board of examiners, to sign or issue a certificate to any person authorizing them to practice medicine.

The petitioner, who is the president of a medical society, but not one of those named in the act, continued to issue certificates to physicians to practice medicine under the act as it existed before the amendment. He claims that the act as amended is void, because a violation of the constitutional provision "corporations may be formed under general laws, but shall not be created by special act."

PER CURIAM.

It is urged by counsel for petitioner, that the Act of April 3, 1876, "to regulate the practice of medicine," as amended in 1878 (Laws 1877-8, page 918), is void, because a violation of the constitutional provision: "Corporations may be formed under general laws, but shall not be created by special act."

The second section of the act confers the exclusive power to appoint boards of examiners upon three medical societies, and other sections provide for the payment of fees to each board, which are required to be paid into the treasury of the medical society, by whom the board receiving them shall have been appointed.

It is claimed by petitioner that the power to appoint and the right to receive fees are franchises, which the act attempts to confer upon the three named incorporations, and which are not enjoyed by other medical societies, incorporated under the general laws; that the act is, therefore, violative of the provision of the State Constitution above recited, as the same was construed in San Francisco vs. Spring Valley Water Works (48 Cal. 493).

« PreviousContinue »