streets, lanes, etc., and to amend the act of March 6, 1883, being inconsistent with the constitution as it stood unamended, in attempting to provide a general system of making contracts before the collection of the money therefor, is void and unconstitutional in that regard. In bank. Appeal from superior court, county of Alameda. C. T. Johns, for appellant. John H. Boalt, Henry Vrooman, and C. T. H. Palmer, for respondent. THORNTON, J. This is an application by plaintiff, a corporation, to the superior court of the county of Alameda, for a writ of mandate to the defendant, commanding him, as city marshal of the city of Oakland, to enter into and execute a certain contract for grading, curbing, and macadamizing, to the official grade, a portion of a street in the city of Oakland, and to fix the times for the commencement and completion of the work to be done under the said contract, which the said defendant had refused to sign and execute. In obedience to an alternative writ, the defendant appeared and by his answer showed cause for refusing to execute the contract above referred to, as follows: "First. That all the proceedings of the city council of the city of Oakland, purporting to acquire jurisdiction for the ordering of said work, and to order the same and award to the Oakland Paving Company herein the contract therefor, all as alleged in the affidavit of M. H. Eastman herein, were taken in violation of the first sentence of section 19 of article 11 of the present constitution of this state, for the following reasons, to-wit: (1) Constitution amendment No. 1, proposed by the legislature at its regular session in 1883, and attempted to be ratified by the vote of the people at the general election in 1884, never became and is not now a part of the constitution, because said amendment was not entered at large in the journals of the two houses, as provided in section 1 of article 18 of the constitution of California. (2) Said proposed amendment was read only once in the assembly. (3) The act of the legislature of the state of California, entitied 'An act to provide for the submission of proposed amendments to the constitution of the state of California to the qualified electors for their approval,' approved March 7, 1883, was passed by the legislature and approved by the governor subsequent to the attempted passage of said constitutional amendment No. 1, and therefore said amendment is not included within the terms and meaning of said act of submission of March 7, 1883, and there never has been, and is not now, any statute under which said amendment can be properly submitted to the people." The court below by its judgment ordered the writ to issue as prayed for in the plaintiff's petition. This judgment is appealed from by defendant. Several questions arise on this appeal, which this court is called on to decide. The proceeding for the street work in this cause is taken under certain acts of the legislature, neither of which provide for levying, collecting, and paying into the treasury of the city an assessment previous to the making a contract for letting or doing the work, or previous to the commencement of such work. Street work or improvements within the limitations of the constitution may be devolved by the legislature on the corporations of cities and of consolidated cities and counties in this state. The constitution of 1879 provides that "no public work or improvement of any description whatsoever shall be done or made in any city in, upon, or about the streets thereof, or otherwise, the cost and expense of which is made chargable or may be assessed upon private property by special assessment, unless an estimate of such cost and expense shall be made, and an assessment in proportion to benefits, on the property to be affected or benefited, shall be levied, collected, and paid into the city treasury before such work or improvement shall be commenced, or any contract for letting or doing the same authorized or performed." Section 19, art. 11, Const. This provision of the constitution was before this court, Department 2, for its application and construction, in McDonald v. Patterson, 54 Cal, 245. The ease there presented was in regard to a contract under the provisions of the act of April 1, 1872, (St. 1871–72, p. 804,) relating to the improvement of streets in the city and county of San Francisco, and the application therein was for a writ of mandate commanding the defendant, who was superintendent of streets, etc., of the city and county above mentioned, to execute in his official character a contract for street work in advance of the levy and collection of the assessment referred to in the constitutional provision above quoted. It was held in that case that section 19 of article 11, above set forth, required no legislation to enforce it, and that the provisions of the act of April 1, 1872, relating to street improvements in San Francisco, which authorized the superintendent of streets to execute contracts for such improvements, in advance of the levy and collection of the assessment, are inconsistent with the section of the constitution referred to, and that they ceased to be operative on the first day of January, 1880. The above decision was approved by this court in bank by its action in denying a rehearing. Subsequently the same question was presented to this court in bank in Donahue v. Graham, 61 Cal. 276, and was decided in the same way on the authority of McDonald v. Patterson, supra, thus a second time approving the ruling in that case. It should be mentioned here that SHARPSTEIN, J., who had concurred in McDonald v. Patterson, dissented in Donahue v. Graham, and that McKINSTRY, J., also dissented. Indeed, the last-named justice never concurred in the ruling of McDonald v. Patterson. We see no reason to change the ruling of this court in the cases just referred to. In our judgment the language of section 19, art. 11, above quoted, was not intended to apply only to contracts let under laws to be passed by the legislature after the constitution of 1879 went into effect. It was intended to strike with nullity all contracts made under any laws, in advance of the execution of which no assessment had been levied, collected, and paid into the treasury of the city. The constitutional provision was not retroactive, but prospective. It did not retroact on any contract entered into for street work in accordance with law before the constitution went into operation. It was prospective in affecting with nullity and rendering void any contract entered into after the date just mentioned; was also prospective in annulling any statute then in force or which might thereafter be passed inconsistent with its provisions. The constitutional provision is prohibitory in its language, and when that is the case no legislation is required to execute such provision. It is then self-executing-operating proprio vigore. The constitution in regard to contracts for street work presents in itself a complete rule in the particular mentioned. It requires no legislation to make it more complete. Every constitutional provision is self-executing to this extent, that everything done in violation of it is void. Brien v. Williamson, 7 How. (Miss.) 14. The fifteenth amendment to the federal constitution provides that "the right of citizens of the United States to vote shall not be abridged by the United States or by any state on account of race, color, or previous condition of servitude." This provision is self-executing to the extent that of its own force it abolishes all distinctions in suffrage based on the particulars mentioned, (Cooley, Const. Lim. 133,) whether these distinctions existed in a statute subsisting when the amendment went into operation or whether the statute was subsequently enacted. The same may be said of the provision of the same constitution that no state shall pass a law impairing the obligation of contracts (article 1, § 10, Const. U. S.) as of all the matters prohibited by section 10 of article 1, just cited. See Ewing v. Oroville Min. Co., 56 Cal. 649. Nor is this section 19 limited to prohibiting the legislature from passing laws authorizing contracts in the future in violation of its provisions. It does this, but it does more: it operates on all contracts for street work whether entered into under laws existing when the section went into effect or under statutes subsequently en 6 PACIFIC REPORTER. acted. Whenever a case arises presenting a contract of the character indi- In thus construing this provision in section 19, it is taken in connection with all other provisions of the constitution, especially with subdivision 22 of article 1, and section 1 of article 22. No other provision of the constitution dominates it or changes its interpretation. The language is plain and perspicuous, and we cannot attribute to it any other meaning than that given in the two cases above cited in which it is interpreted. In fact we do not see there is any necessity for the legislature to enact a statute to execute the proIt would be useless to do so, visions of the section of article 11 above cited. for the legislature is not called on to perform a duty so useless as to forbid that which is already forbidden. By the express declaration of the first section of article 22 of the constitution all laws inconsistent with the constitution ceased when that instrument began to operate. This was so held in McDonald v. Patterson, Ewing v. Oroville Min. Co., and Donahue v. Graham, supra. The act of April 1, 1864, entitled "An act to authorize the city council of the city of Oakland to improve the streets, lanes, alleys, courts, and places in said city," (St. 1863-64, 333,) which authorized a contract to be made in advance of an assessment (section 8 of act) to pay for that work, in that is inconsistent with section 19, art. 11, of the constitution, and so far it ceased When we say ceased, to have any existence when the constitution took effect. we mean it went out of existence, as if repealed by a valid act of the legislature. When it ceased to have existence it was recalled or revoked. This is the primary meaning of "repeal," as its etymology imports. That a statute may be recalled and repealed by a constitution as well as by a statute "goes without saying." See Cass v. Dillon, 2 Ohio St. 608. The section 19 of article 11 repealed the statute so far as pointed out above by implication. Cass v. Dillon, supra; Ohio v. Evans, 1 Ohio St. 437. Section 1, art. 22, exWe can find nothing in the constitution which saves the pressly repealed it. above provision of the act of 1864 from the annulling effect of the sections of the constitution above cited. But it is argued that section 19 of article 11 has, by the operation of an amendment of the constitution, ceased to form a part of it; and that the statute approved March 18, 1885, entitled "An act to provide for work upon streets, lanes, alleys, courts, places, and sidewalks, and for the construction of sewers within municipalities." (St. 1885, p. 147,) passed subsequent to the ratifying of the amendment, which, like the statIf the constitution was ute of 1864, provides for a contract for doing street work in advance of an assessment levied, is constitutional. St. 1885, § 8. amended, as contended, prior to the enactment of the act of 1885, the objection to the act of 1885 in regard to the particular above indicated ceases to be of force. If it had not been so amended when the act was passed, the objection still remains in full force. The following facts were admitted by the parties hereto, as appears in the bill of exceptions in the record: "(1) That all the proceedings of the city council of the city of Oakland and the advertising thereof ending in the award to the said the Oakland Paving Company of the contract for the grading, curbing, and macadamizing Tenth street, between Madison and Alice streets, in said city, and recited in the affidavit of M. H. Eastman, an officer of said the Oakland Paving Company, for and in its behalf, herein applying for writ of mandate, were taken in regular form under the general street act, on page 147 of the published statutes of 1885, and also under the act specially providing for street work in the city of Oakland on page 333 of the published statutes of 1863-4, and the act to amend the same on page 443 of the published statutes of 1869-70, and, aside from the questions herein of the validity of the constitutional amendment, were sufficient, under any or all of said acts to entitle said the Oakland Paving Company to the city marshal's completion and execution of the contract tendered, and receiving the bond therewith, as said tenders are recited in said affidavit. (2) That the legislature of 1883 proposed to amend section 19 of article 11 of the constitution, by senate bill 10, as the body of the same appears on page 2 of the published statutes of 1883; and that, as appears by the senate journal thereof, on pages 16, 50, 59, 103, and by the assembly journal thereof, on pages 171, 176, and 255, said proposal was introduced in the senate by Senator McClure, on the eleventh day of January, 1883; was read therein for the first time and placed on file for second reading on the nineteenth day of January, 1883; was therein read the second time and ordered engrossed on the twentieth day of January, 1883; was therein read the third time, and finally proposed on the part of the senate by more than two-thirds of all the members elected, on the thirtieth day of January, 1883; was transmitted to the assembly on the last day aforesaid; that on the following day the committee on judiciary therein unanimously reported their opinion that it was not necessary that proposed amendments to the constitution be read more than once before being voted upon; that on the seventh day of February, 1883, therein the proposed amendment as aforesaid was read the first time, was treated as a resolution, and amendments offered by Assemblymen Storke and Leverson being lost, and the previous question ordered, was finally proposed on the part of the assembly, without further reading, by more than two-thirds of all the members thereto elected; that the names of 28 ayes and 5 noes in the senate, and of 68 ayes and 2 noes in the assembly, voting so thereon, were entered in the journals of the respective houses; and that the entries of said proposal in said respective journals were by identifying references to said senate bill 10, as proposing the said amendment of the constitution, but that the text of the amendment proposed was not copied at large in the respective journals. (3) That said proposed amendment to the constitution as it appears on page 2 of the public statutes of 1883 is the same throughout as the so-numbered 'Amendment No. 1,' to the constitution, voted upon by the people for approval and ratification at the next general election in November, 1884. (4) That one day after the final proposal of said amendment to the constitution on the part of the senate, the senator who had introduced said proposal also introduced the senate bill 228, which afterwards became 'An act to provide for the submission of proposed amendments to the constitution of the state of California to the electors for their approval,' approved March 7, 1883, as the same appears on page 53 of the published statutes of 1883; and that during the progress of said act for submission through both houses no debate was had, nor amendment made nor offered, nor questions raised-any of them-upon the point whether said constitutional amendment, already proposed, was or was not intended to be included under the provisions of said act. (5) That thereafter the governor issued his proclamation for a vote of the qualified electors upon three proposed amendments to the constitution at the next general election in November, 1884, and therein included the amendment aforesaid, designating it as 'Amendment No. 1,' and caused the same to be advertised in all respects as prescribed by said act for submission; and that it was voted upon, and the votes were canvassed in all respects as prescribed by said act. (6) That at said general election 149,285 votes were cast for 'Amendment No. 1,' and 7,363 votes were cast against Amendment No. 1.'" The constitution provides for its amendment and points out the mode specifically by which it shall be done. Inasmuch as the mode of amendment is so established by the paramount law, it is unnecessary to consider the question whether the people of a state may not amend its constitution, where no mode is fixed for that purpose in the organic law When a mode is thus established and ordained, it must be followed. The people of a state may impose a limit upon their own power, and when this is done by the constitution it must be regarded as much a portion of the paramount law, and as obligatory on the whole people, as any other portion of the constitution. If we do not so hold, we would sanction revolution and violence, and place lawlessness on a level with law. The majority of the people, according to law, having adopted the constitution with a mode of amendment in it, we must regard it as a solemn declaration to the minority in the state, as binding as a compact with such minority that the majority, however large or overwhelming, will never exercise its irresistible power, its vis major, to change the law of its organization as a government in any other way. We hold it to be sound law that a constitution, adopted as was the present constitution of the state of California, is not lawfully changed by the votes of every elector in the state, unless in the mode provided in it. Koehler v. Hill, 60 Iowa, 547; S. C. 14 N. W. Rep. 738, and 15 N. W. Rep. 609. The majority in favor of the change may be so irresistible in its physical power as to command the forced acquiescence or unwilling consent of an inconsiderable minority, but nevertheless a change of the constitution so brought about contrary to its provisions would be lawless, revolutionary, and unconstitutional, and it would be the duty of this court, in obedience to the oath which its members have taken, so to declare it, in favor of any litigant who should invoke its judgment in the course of regular procedure, though the sole litigant invoking its aid and power should constitute the non-consenting minority. If they did not so declare, the organic law would not afford that protection and refuge which it was intended to afford. The mode of amendment to be considered here is declared and ordained in article 18, and in the first section thereof, which is as follows: "Any amendment or amendments to this constitution may be proposed in the senate or assembly, and if two-thirds of all the members elected to each of the two houses shall vote in favor thereof such proposed amendment or amendments shall be entered in their journals, with the yeas and nays taken thereon, and it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time and after such publication as may be deemed expedient. Should more amendments than one be submitted at the same election, they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall approve and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon, such amendment or amendments shall become a part of this constitution." It will be observed that an amendment of the constitution may be proposed in either house of the legislature, and if, when so proposed, two-thirds of all the members elected to each of the two houses shall vote in favor of it, such proposed amendment shall be entered in their journals. The constitutional requirement is not limited to an entry of the proposed amendment in the journal of one house of the legislature, but in their journals; that is to say, in the journal of each house, in that of the senate and in that of the assembly also. This language is too clear to admit of doubt. It needs no interpretation. It is so clear that interpretation could not make it clearer. It would only confuse and mystify, instead of making it plainer and more perspicuous. Its meaning is so plain that there is no room or necessity for interpretation. Now, according to the admitted facts appearing above, the only entry of the proposed amendment upon the journal of each house was by a mode styled "identifying reference." This mode is explained as consisting only of a reference to it as "Senate Bill 10." Is this the entry ordained by the constitu |