VOL. VI.

AUGUST 28, 1880.

No. 1.

Current Topics.

WE herewith present our readers with a double number for the first one of the new volume, reserving until our next pertinent remarks, which are crowded out.

THE State of California presents the anomaly of a government being carried on under laws of dual relations of widely different and conflicting organic laws. Although this feature is not limited to this State, yet the failure to provide a stable basis for a superstructure upon which to build a practical scheme of government for the benefit of the governed is more conspicuous here, on account of the vital importance attached to the questions sought to be solved by the Constitution makers, and by the Legislature acting thereunder.

Had there been a careful examination into the principles or reasons that govern Courts, the tribunals which, after all, possess the final power of determining whether any law is or is not applicable to a certain condition of things, and upon whose fiat hangs the fate of all legislative action, it would have been perceived that not even organic law could force the State into a condition of chaos by a sweeping repeal of all rules of action adopted previous to its passage.

At first blush, it was considered that all laws inconsistent with the new Constitution passed out of existence upon its adoption, and after the first day of July last; hence the great desire to patch up some sort of a system suitable to the wants of the people and in compliance with the provisions of the Constitution. Within the limited time granted the Legislature it was impossible to establish a code of laws deprived of their special features, because the matter required calm and studied deliberation. Had there been less haste it would undoubtedly have occurred to the thoughtful mind that if the new Constitution had operated to repeal all existing laws it would have been necessary to create an entirely new code of original laws; because whatever special features existed in the old law could not be cured by revision or amendment, as re-enactment was requisite, and what was constitutional under the old Constitution would be void under the inhibitions of the new; and whether the new Con

stitution did or did not operate to repeal all inconsistent statutes, it nevertheless, by virtue of its sole prospective operation, must be held as a basis for future original legislation.

The point to which these ideas lead is whether the old law, which contains many special features, and is regarded as a whole a unit, as is the Political Code, can be revised, amended, or re-enacted. In the light of the language held by the Supreme Court in In re Earle vs. Board of Education, the conclusion seems to be inevitable that it cannot; and the reason seems clear. The Political Code either is or is not in force. But it is not in force under the new Constitution, but is void because of its special features; hence it cannot be revised, amended, or re-enacted quoad the new Constitution, and it is not in force at all, except by virtue of the consent expressed in the latter instrument, and only until something new and original under the new Constitution takes its place. The old law cannot be revised or amended and foisted upon the State as the law, but it must be re-enacted as if it was an original idea of the legislators, and had never existed as a law; and it must be a complete law in itself, without reference to, or necessary to be read with, the old.

The idea we seek to inculcate is apparent in Article XI, Section 4, which provides that the Legislature shall "establish a system of county governments which shall be uniform throughout the State," and in the Act of April 27, 1880. (Statutes, page 527.) Here that portion of the Political Code relating to county governments has been revised and amended, but the whole chapter has not been re-enacted, and new sections have been added to the Code without the re-enactment thereof. If, as the Court says in the Earle case, the Traylor Act could not be added to the Code because of its special features, how can these new sections in the County Government Bill be considered on any better footing? And if these new sections fall, what becomes of the bill as an entirety?

The bill omits specially consolidated cities and counties, and might not be considered general on that account. Even if general, and required to be read in connection with the Political Code, the sense of the Earle decision seems to be that it would not be a general law.

The subject is prolific in points of importance, and it is difficult to tell now under which king we are supposed to be living. The Supreme Court, however, has expressed a determination to maintain the new Constitution, and avoid even a squinting construction against it.

Supreme Court of California.

DEPARTMENT No. 2.

[Filed July 24, 1880.]

No. 6466.

A. HEMME, RESPONDENT, vs. P. W. HAYS, APPELLANT.

PLEADINGS INSUFFICIENT ANSWER. Where an answer presents nothing, either by way of denial or new matter, to bar or defeat an action, the plaintiff may apply for judgment upon the pleadings.

Appeal from the District Court of the Twenty-first Judicial District, Modoc County.

F. W. Ewing, E. Steele, and E. V. Spencer, for respondent. G. F. Harris and J. C. Bower, for appellant.

SHARPSTEIN, J., delivered the opinion of the Court:

This is an action upon a promissory note, made and delivered by the defendant to the plaintiff. The defendant in his answer denies the due execution of the note, or that it was executed for a valuable consideration for reasons thereinafter set forth. And he alleges that on and after the year 1870, and up to about the 1st of November, 1875, he was engaged in the business of buying and selling goods at the town of Lake City, in this State; and that during the last two years of that period he had in his employ as clerk and business manager one William Hemme, who during said time was also the agent of the plaintiff, and that he acted in all business transactions between the plaintiff and defendant; and that said William Hemme was so acting at the date of the execution of said note; and that said William Hemme, by fraudulently representing to the defendant that there was a balance due to plaintiff from defendant upon an account between them, induced the defendant to sign said note; and that defendant signed said note under protest, and without any consideration whatever. Defendant further alleges that while said plaintiff was in the employ of defendant, said plaintiff, acting as defendant's agent, received various sums of money from defendant to disburse for him, which said plaintiff failed to use as he was directed by defendant to do; said sums in the aggregate amounting to about $7,702.77.

Defendant also alleges that there has never been any final settlement of account between him and plaintiff, and "that

at the date of the execution of said notes, the books of account existing between plaintiff and defendant, as kept by said plaintiff, show a balance in favor of said defendant and against plaintiff of $119.31, which amount, taken together with the sum of $7,702.77, moneys not accounted for, as above set forth, make a balance in favor of this defendant and against this said plaintiff, of $7,822.08," for which amount he demanded judgment against the plaintiff.

The plaintiff moved for judgment for the sum prayed for in his complaint, which motion was granted, and judgment was entered accordingly. From that judgment the defendant has appealed.

The defendant denies the due execution of the note, and that it was executed for a valuable consideration, for certain reasons which he sets forth in his answer. Those reasons do not show that the note was not duly executed, and for a valuable consideration. Hence there is no denial of the due execution of the note, or that it was executed for a valuable consideration. The attempt to set up a counter claim, if in fact any such attempt is made, cannot be regarded as even a partial success.

A frivolous answer is defined to be one which denies no material averment in the complaint, and sets up no defense. (Nicholas vs. Jones, 6 How. 355; Hull vs. Smith, 8 How. 149; S. C., 1 Duer. 649; Brown vs. Jenison, 3 Sanf. 732; Levingston vs. Hammer, 7 Bos. 160.)

Where an "answer presents nothing, either by way of denial or new matter, to bar or defeat an action," the plaintiff may apply for judgment upon the pleadings. (Fitch vs. Beaudry, 40 Cal. 439; Corwin vs. Patch, 4 Cal. 304; Gay vs. Winter, 34 Cal. 153; Fitzgibbon vs. Calvert, 39 Cal. 261. Judgment affirmed.

I concur: Myrick, J.

CONCURRING OPINION.

I concur in the judgment, for the reason that the appeal is taken from the judgment, and there is no bill of exceptions bringing before us the ruling of the Court below on the motion for judgment on the pleadings. This motion and the ruling thereon is not made a part of the judgment roll by a bill of exceptions. Without such bill it constitutes no part of the judgment roll; and, in my opinion, the ruling on the motion cannot be considered on this appeal, which is stated in the notice of appeal to be taken from the judgment roll. THORNTON, J.