Under the decisions of the highest court of California, an act
of legislature entitled "An Act to amend sections 204, 205, 206 and
208 of the Code of Civil Procedure" is not void as contrary to the
provisions of the Constitution of the state providing that every
act of the legislature shall embrace but one subject which shall be
expressed in its title.
One convicted after indictment by a grand jury impaneled under
the provisions of Code as so amended is not deprived of his liberty
without due process of law in violation of the Fourteenth
Amendment.
Appeal from an order denying a writ of habeas corpus. The
respondent is the warden of the state prison of the State of
California at San Quentin, and holds the petitioner in custody
under a judgment of the Superior Court of San Luis Obispo County,
State of California, in which court he had been indicted, tried,
and found guilty of the crime of murder, and sentenced to be
hanged.
The petition under review is the second presented to the circuit
court. The first was denied on the ground "that application for
relief on behalf of said Burt Ross should first be made to the
courts of the state." Thereupon a petition was presented to the
Supreme Court of the State of California, and denied. A writ of
error to this Court was also denied. The ground of the petition is
that the grand jury by which the indictment was found was not
selected in accordance with law, and that therefore his conviction,
sentence, and commitment do not constitute due process of law, and
that he is deprived of his liberty in violation of the Fourteenth
Amendment of the Constitution of the United States.
Page 191 U. S. 61
MR. JUSTICE McKENNA delivered the opinion of the Court.
By the Constitution of the State of California, no person can be
held for a crime unless on information, after examination and
commitment by a magistrate, or an indictment by a grand jury.
Section 8, Constitution of 1879. By sections 204 to 211, inclusive,
of the Code of Civil Procedure of the state (prior to the
amendments hereinafter stated), it was made the duty of each of the
superior courts of the state to fix, by order, the number of grand
jurors and trial jurors required for the transaction of business
and the trial of causes during the ensuing year, and it was made
the duty of the boards of supervisors of the counties, upon the
making of said order, to select from the last preceding assessment
roll a list of persons competent and suitable to serve as grand
jurors, and also a list of persons to serve as trial jurors, and
certify said lists, and place the same with the county clerk, who,
upon receiving them, was required to file them in his office,
"and write down the names contained thereon, on separate pieces
of paper, of the same size and appearance, and fold each piece so
as to conceal the name thereon,"
and
"deposit the pieces of paper having on them the names of the
persons selected to serve as grand jurors in a box to be called the
'grand jury box,' and those having on them the names of persons
selected to serve as trial jurors in a box to be called the 'trial
jury box.'"
Grand jurors and trial jurors were required to be drawn
respectively from these boxes, by lot, by the clerk, in the
presence and by order of the court. Sections 241 and 242, Code of
Civil Procedure.
On March 23, 1893, the legislature passed an act entitled "An
Act to Amend Sections 204, 205, 206, and 208 of the Code
Page 191 U. S. 62
of Civil Procedure." Stats.Cal. 1893, p. 297. By this act, it
was provided that the superior court, after making the order
stating the number of grand jurors which in its opinion would be
required for the business of the court, "shall select and list the
grand jurors required by said order to serve as grand jurors in
said superior court during the ensuing year." It was left the duty
of the board of supervisors to select a list of trial jurors. The
grand jury which indicted the petitioner was selected under this
act. Illegally selected, it is contended, because "it is the law of
the State of California that an act with only such a title" is void
under the constitution of the state, and that therefore the
sections of the Code of Civil Procedure, the substance of which we
have given above, remained the law of the state. For this
contention petitioner relies on
Lewis v. Dunne, 134 Cal.
291.
The title of the act passed upon in that case is as follows: "An
Act to Revise the Code of Civil Procedure of the California by
Amending Certain Sections, Repealing Others, and Adding Certain New
Sections." The act was held void under that section of the
constitution of the state which provides that
"every act shall embrace but one subject, which subject shall be
expressed in its title. . . . 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 as revised or
amended."
The decision was rendered upon a petition for mandamus to a
judge of the Superior Court of the City and County of San
Francisco, but what action to command does not appear. The
petitioner, however, contended that both the title and body of the
act showed that the act was intended to be, and was, a revision of
the Code, and therefore invalid, because the law revised was not
"reenacted and published at length as revised." The court said it
could see no sufficient answer to the contention. That contention
is not made in the case at bar. The act of 1893 reenacted and
published at length the sections amended, and is confined to their
amendment. But the act passed upon
Page 191 U. S. 63
in
Lewis v. Dunne was also held void because its title
did not express its subject -- nor, indeed, any subject. "It is
apparent," the court said, "that the language of the title of the
act in question, in and of itself, expresses no subject whatever."
The words "in and of itself" were used to distinguish an expression
of the subject by "reference," and the reference, it was said, was
really not to the title of any former act; it was merely to "the
Code of Civil Procedure of the State of California." It was
asked:
"Now what is the Code of Civil Procedure? It is merely a name
given to a large part of the general laws of the state. The part of
the great body of our laws which is to be found under that name is
not confined to any particular subject or subjects, but includes
substantive law, criminal law, and legislation that might be
properly classed under any category whatever, as well as 'civil
procedure.' The reference, therefore, was not to one subject, but
to many, and the revising act dealt, the court said, 'with a vast
variety of subjects,' many of which were 'totally distinct from
each other,' and many of them had 'no relation to civil procedure,
while others were partly procedure and partly substantive law --
declaration as to personal and property rights.'"
These observations are certainly not applicable to the act of
1893. That amends sections 204, 205, 206, and 208 by designating
them, and reenacts and publishes them at length. It has but one
purpose, and contains but one subject. It amends particular
sections; it does not revise a whole code.
In
People v. Parvin, 74 Cal. 549, an act was considered
with the following title: "An Act to Amend Section 3481 of the
Political Code." The case was not unqualifiedly approved in
Lewis v. Dunne. It was not, however, overruled, and it
seems to be an irresistible conclusion from the action of the
supreme court of the state in denying the application of petitioner
that the act of 1893 was not ruled by
Lewis v. Dunne, and
was not void under the constitution of the state. We accept the
conclusion. It has support, if it need any, in
Beach v. Von
Detten, 139 Cal.
Page 191 U. S. 64
162, decided by the Supreme Court of California, June 26, 1903,
where it was held (we quote from the syllabus) that "the title of
an amendatory act which gives the title of the original act in
full, and the number of the section in its amended form, is
sufficient."
People v. Parvin, supra, was cited, and it
was observed that that case was discussed in
Lewis v.
Dunne, "and distinguished, but not overruled." And it was also
observed that the
Parvin case had been approved in
Francais v. Somps, 92 Cal. 503.
Order affirmed. Mandate forthwith.