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CONSTITUTION REVISION

HISTORY AND PERSPECTIVE

The California Constitution Revision Commission

1996

The California Constitution Revision Commission is no longer in existence. Further informationon the report of the commission can be found on the world wide web on the California HomePage at www.ca.gov. For future activity on the commission’s recommendations, contact theForum on Government Reform, P.O. Box 22550, Sacramento, CA 95822.

The cover includes a representation of the first California Constitution, adopted in 1849. Theback of the report are the signatures of some of those who signed the Constitution at the firstconstitution convention.

CALIFORNIA CONSTITUTION REVISIONCOMMISSION

CONSTITUTION REVISION

HISTORY AND PERSPECTIVE

The purpose of this report is to provide historical perspective to the work andrecommendations of the Commission. In most cases the issues studied by the Commission areidentified and historical analysis is provided. The primary contributors to this work were PatOoley, graduate student of Public History at the University of California at Santa Barbara andAmanda Meeker, graduate student at California State University, Sacramento. As archiveresearchers for the Secretary of State’s California State Archives, they made a substantialcontribution to the understanding of the history of the many issues faced by the Commission.Their work was greatly appreciated. Two additional papers have been included: one dealswith the fiscal system and the major changes that took place in 1933 and the other deals withthe troubled history of the place of cities in California government structure.

1996

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THE CALIFORNIA CONSTITUTIONREVISION COMMISSION

MEMBERSHIP *

William Hauck, Chairman

Donald Benninghoven, Vice Chairman

Larry Arnn

George Babikian

Anne Bakar

Andrew Baron

Craig Brown

Elizabeth Cabraser

Patricia Castillo

Betty Tom Chu

Lewis Coleman

Edward Erler

Joel Fox

Steve Frates

Russell Gould

Kamala Harris

Alan Heslop

Elizabeth Hill

Gary Hunt

Assemblyman Phil Isenberg

Senator Lucy Killea

Senator Bill Leonard

Jane Pisano

Richard Rider

Judge Ronald Robie

Dr. Chui Tsang

Judge Roger Warren

Leon Williams

COMMISSION STAFF

Fred SilvaExecutive Secretary

Executive AssistantsKelly ZavisDede Lind

Ellen MorattiDeputy Executive Secretary

Student AssistantKirk Clark

Office AssistantCindy Dominguiz

* The membership list includes all members who served on the Commission.

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Table of Contents

Page

State Governance

An Overview of the History of Constitutional Provisions Dealing withState Governance ............................................................................................................................... 3

Executive Branch ....................................................................................................................................... 11

Legislative Branch ..................................................................................................................................... 21

The Initiative Process ................................................................................................................................ 35

State Budget and Fiscal Provisions

An Overview of the Early Years of the Budget Process ..................................................................... 47

Reform During Crisis: The Transformation of California’s Fiscal SystemDuring the Great Depression .......................................................................................................... 57

K–12 Education

An Overview of the History of Constitutional Provisions Dealing withK–12 Education ................................................................................................................................ 79

Local Government

An Overview of the History of Constitutional Provisions Dealing withLocal Government ............................................................................................................................. 87

Creatures of State . . . Children of Trade: The Legal Origins ofCalifornia Cities ................................................................................................................................. 97

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STATE GOVERNANCE

An Overview of the History of ConstitutionalProvisions Dealing with State Governance

Executive Branch

Legislative Branch

The Initiative Process

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STATE GOVERNANCEby Pat Ooley

An Overview of the History of ConstitutionalProvisions Dealing with State Governance

Although California’s constitution hasundergone wholesale revision and amendmentsince its inception in 1849, the work of theoriginal framers remains imprinted in theorganic law of the state. Responding to theurgencies of their time, the elected delegateswho revised the constitution in 1879 expandedthe document, adding nine new articles andsome 8,000 words. Between 1966 and 1974,California voters authorized significantconstitutional revisions recommended by theConstitution Revision Commission andproposed by the legislature. Since theintroduction of the popular initiative in 1911,California voters have approved over 425amendments to the 1879 constitution. Aftersignificant revision and substantial amendment,and notwithstanding the inclusion of popularlegislation, the fundamental organization ofstate government provided for in1849—executive, legislative, and judicialdivision of powers—remains intact. Thepurpose of this essay is to trace thedevelopment of sections of the Executive,Legislative and Initiative articles of the stateconstitution to their historic beginnings inCalifornia, hopefully revealing in the processthe intent of both framers and revisionists.1

The forty-eight men who met in Monterey inSeptember of 1849 framed a constitution forCalifornia in just forty-three days. They were ina hurry. Congress, embroiled and divided overslave versus free soil, had repeatedly failed togrant California territorial status. Californians,unable to organize a constitutional governmentwithout such authorization, were living underthe laws existing in California at the time of theAmerican annexation—a frontier application ofMexican civil law. International law, and theUnited States Supreme Court, held that the

established laws of an acquired province mustremain in force until superseded by a formallyenacted state government. The time-testedsystems of locally governing alcaldes andout-of-court arbitration of disputes had beensuccessfully applied in Alta California since theSpanish administration. But what hadfunctioned as government for a sparselypopulated territory of Mexico’s far northernfrontier amounted to anarchy for the litigious,land-hungry Americans who were continuouslyarriving in gold-rush California. By the summerof 1849, the situation had become critical.2

President of the United States Zachary Taylorsuggested a solution for California: frame aconstitution and petition Congress directly forimmediate statehood when it next convened.That is what California did. In just nine months(June 1849 to March 1850), Californians electeddelegates to a constitutional convention; framed,distributed, and ratified a constitution; andelected a first legislature, which then electedtwo Senators to Congress. With constitutions inhand, Senators William M. Gwin and John C.Fremont, along with two popularly electedRepresentatives, petitioned Congress forstatehood.3

Although the Congressional debate overCalifornia’s entrance as a free state edged thecountry closer to civil war and securedstatehood only through sectionalist compromise(Compromise of September 9, 1850), Californiahad at last acquired a constitutionalgovernment. As provided in Section Six ofArticle XIII, the constitution would become theorganic law of the state when popularly ratified.By November 13, 1849, California voters hadratified the constitution and installed their firstelected Governor, Lieutenant Governor,

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State Governance — Page 3

Legislature, and members of the House ofRepresentatives.4

Aware of the urgency to get the ratifieddocument before Congress in time for its nextsession, but equally aware of the significance oftheir responsibility to their constituents and toposterity, the 1849 framers worked rapidly anddiligently. Their principal reference, besidestheir individual political and legal expertise,was a ‘‘book of constitutions’’ containing theconstitutions of the thirty United States and thefederal constitution. Drawing primarily from theconstitutions of Iowa and New York, andsecondarily from the constitutions of Louisiana,Wisconsin, Michigan, Texas, and Mississippi, thedelegates assembled a new treatise that reflectedboth contemporary political thought and theproven practices of other states with similarhistories and experiences. When necessary, thedelegates tailored laws to fit California’speculiar circumstances.5

In the thirty years that passed between 1849 andthe constitutional convention of 1878–79,California and the nation had endured profoundtransformation. By the early 1870s, the UnitedStates had only recently emerged from thetrauma of civil war and presidentialassassination. Freed from wartime occupations,yet spurred on by wartime industry particularlyin the north, the United States resumed itsprewar expansion at an unprecedented pace.The nation had plunged headlong into thetumult that has historically marked the finalthree decades of nineteenth-century, maturingAmerica: the opening and taking up of the‘‘public domain’’ in the west, the exploitation ofwhat seemed an inexhaustible supply of naturalresources, construction and expansion of amighty railroad network, the arrival of fivemillion foreign immigrants since 1850,industrialization and urbanization, and thefinancial crash and depression of 1873.6

The civil war had provided two importantcatalysts for change in America—the ascendancyof the Republican party, and a proven federalsupremacy over the states. Bolstered by federallaissez faire acquiescence and supported byfederal grants, GOP industrialists and

capitalists, such as the ‘‘Big Four’’ owners of theSouthern Pacific Railroad in California,determined economic policy. A new corporateorder had emerged for America, with significantsocial and political implications. Capitalist andindustrialist expansion produced a largelaboring class concurrently with a class ofopulent wealth. The depression of 1873–78reduced many laborers to poverty. 7

Holding to the doctrine that governments ruledby the consent of the governed, and that peopleinstituted governments for their own benefit,citizens looked to government for remedy. Butpeople increasingly perceived both federal andlocal government as corrupt and indecisive—thepawn of corporations and private interestswhose unchecked speculations had triggered thefinancial crash and depression. The perceptionwas not unfounded. Popular newspapers hadimplicated congressional and cabinet levelofficials in the Union Pacific-Credit Mobilierscandal (1872), and the Whiskey Ring briberyand tax evasion case (1874). State and municipalgovernments were even more seriously infectedwith the fraud and graft of party machinesoperating in such cities as New York (TammanyHall), Philadelphia, Chicago, and Washington,D.C. In the west, settlers and newspapersaccused federally appointed territorialgovernors and judges of acting in collusion withcorporations and developers in the squanderingof public lands. Territorial legislatures, such asDakota’s, were said to be controlled by therailroads.8

By the mid 1870s, reform movements werecoalescing across the nation. Organized labor,agrarian associations, and women’s suffragegroups were demanding, among other things,restrictions on the powers of state legislatures,and government regulation of corporations andmonopolies. Reformers turned to governmentregulation, restriction, and limitation as meansto an end. To the chagrin of more conservativeelements, the instruments through which theyenacted their reforms were their stateconstitutions. Beginning in 1872 andculminating during the Progressive era in 1913,constitutional conventions were revising and

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Page 4 — State Governance

amending the fundamental law in at leasttwenty-six states. California’s new stateconstitution of 1879 was one of many.9

In the published debates of the 1849constitutional convention, delegates repeatedlystated that the fundamental law of a stateshould be brief, with most verbiage dedicated todelineating and restricting state powers, and tothe distribution of power. Laws of a statutorynature, or laws of only contemporarysignificance, were best consigned to the statutebooks. The zealous revisionists of 1879,however, established a precedent for allowingstatutory material to find its way into theconstitution. The reform-driven necessity toinstruct and restrict the legislature,municipalities, local governments, andcorporations repealed the canon ofconstitutional brevity. Like other revised stateconstitutions, California’s constitution increasedin length—from approximately 7,300 to about15,000 words in 1879.10

In his 1930 study of the California 1878–79Constitutional Convention, political scientistCarl Brent Swisher concluded that most of thereforms so earnestly expounded by the 1879revisionists went largely ‘‘unrealized’’ after theadoption of the new constitution. At the 1879fall elections, liberal and Workingmen reformersdivided among themselves allowing aconservative Republican sweep of the legislatureand executive branch. The 1880 legislature ‘‘ ‘ofindefinite postponements’ ’’ effectively‘‘sabotaged legislation proposed for the purposeof carrying into effect provisions of theconstitution which were inimical to conservativeinterests.’’ The prized Railroad Commission‘‘proved as clay in the hands of the greatcorporations.’’ Astute attorneys delayedenactment for many years of the provisions fortaxing railroads by challenging them asunconstitutional in the courts. Corporations,including the Wells Fargo Express Company,brought suit challenging the Board ofEqualization’s power to equalize assessmentsand won. The provision which made lobbying afelony ‘‘was little more than a laughingstock.’’ 11

Proponents of reform had championed a newconstitution for California, but after 1879, ‘‘theconservative interests by one means or anothercontinued to play a dominant part in Californialaw and politics.’’ Even so, observed Swisher,‘‘agitation did not cease . . . for the interests ofgreat numbers of the people were too vitallyaffected for that.’’ 12

For the nation, industrialization, capitalistexpansion, and corporate growth persisted.Immigrants continued to arrive, expanding thelabor force and intensifying urbanization. In1893, a depression more devastating than 1873settled on the country. Unemployed workerswho marched to Washington for sympathy andredress met with government indifference andcity police. By 1900, however, capital growthand investment had pulled the nation fromdepression. Corporate mergers created hugebusiness entities, headed by men of fabulouswealth and power.13

Contrasted with the opulence, however, werethe urban ghettos of the working poor, thedrudgery and danger of factory work, and childlabor. Over time the reform impulse of the 1870sspread from labor and agrarians to urbanintellectuals and activists, social workers, and agrowing American middle-class. The new‘‘Progressive’’ proponents of reform foundexpression in art, literature, muckrakejournalism, and public forums. Beginning atmunicipal and state levels, the broad reforms ofthe Progressive movement gathered momentumas state after state enacted Progressivelegislation. As governor of New York,Republican Theodore Roosevelt had successfullysponsored Progressive reforms. As President(1901 to 1909), Roosevelt helped bringProgressivism to the national level.14

South Dakota was the first state to adopt theinitiative and referendum in 1898. By 1910,Utah, Oregon, Montana, Oklahoma, Missouri,Michigan, Arkansas, and Colorado hadduplicated South Dakota’s reform enactment. By1910, the Progressive movement had gainedenough authority in California to elect a ‘‘reformgovernor,’’ Republican Hiram Johnson, and aProgressive legislature. On February 9, 1911,

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Senate Constitutional Amendment 22, providingfor the initiative and referendum, passed theSenate by a vote of thirty-five to one. TheAssembly approved SCA 22 by a vote ofseventy-two to zero one week later. At a specialelection held on October 10, 1911, Californiavoters ratified the amendment to Section One ofArticle IV of the constitution by a vote of168,744 to 52,093.15

Although it was not the intent of theProgressives, their ‘‘direct legislation’’ reformsexacerbated the constitutional brevity problemin California. The initiative process made theconstitution much easier to amend. As aconsequence, each election year’s ballot addedmore statutory law to the constitution(excepting 1915, 1935, and 1939 whenamendments were proposed but none ratified).Issues passionately supported by one generationbecame irrelevant to the next. Once etched intothe organic law, however, enactments are noteasily removed. By 1948, California’sconstitution had increased to 95,000 words.16

Concurrent with the unbridled growth of theconstitution came ballot measures askingCalifornians if a convention to revise theconstitution should be called. In 1898, 1914,1920, and 1930 voters rejected the propositions.In December, 1930, the California ConstitutionalCommission established by Governor C. C.Young, reported that ‘‘constant amendment’’of the organic law had:

produced an instrument bad in form,inconstant in particulars, loaded withunnecessary detail, encumbered withprovisions of no permanent value, andreplete with matter which might moreproperly be contained in the statute lawof the state.

The Commission unanimously voted forrevision.17

In 1934, Californians approved the call for aconstitutional convention by a vote of 705,915 to668,080. Interestingly, revisionists in Californiaand in other states were asking for reformssimilar to those of the present commission.According to a 1934 Bureau of Public

Administration fact-finding report for theCalifornia legislature, proposals included: moresignatures required for initiative constitutionalamendment than for initiative statute; adoptionof a single-house legislature, new legislativesessions, and a closer relationship between thegovernor and the legislature (as promoted bythe National Municipal League); elimination ofany references to executive officers, exceptelected officials; ‘‘changes in the machinery’’ ofcounty consolidation; an elective State Board ofEducation; and ‘‘alterations’’ in constitutionalmandates regarding state allotments to schools.The legislature, failing to comply with theinitiative directive, never provided for theconvention.18

By the mid 1940s, many Californians, includingcitizen’s groups and members of the legislative,judicial, and executive branches of government,were again critically assessing the condition ofthe state’s fundamental law document. In 1947,the legislature established an InterimCommission for the Revision of the CaliforniaConstitution, composed of ten State Senatorsand ten members of the Assembly. GovernorEarl Warren appointed a 300-member Citizen’sAdvisory Committee, which he instructed toinvestigate and address constitutional revisionin statewide public hearings, and then report tothe Interim Commission.19

Alonzo L. Baker, political scientist and legalscholar who served on the Citizen’s AdvisoryCommittee, recalled that when the committeereported to the legislature in 1948, manymembers recommended ‘‘thorough andfar-reaching revision.’’ But, he added, ‘‘thetwenty members from the Legislature who heldthe residual power would brook no such thing.’’Regarding the Legislative Interim Commission,Baker concluded:

The only accomplishment of note doneby this Interim Commission was torecommend taking out the 14,500 wordsproviding for the San FranciscoPanama-Pacific Exposition of 1915.Inasmuch as we were acting one-third ofa century after that Exposition closed itwas thought it would do no violence to

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the Constitution to eliminate the section!To be sure, such a portion of theConstitution was non-constitutional tobegin with: it was a travesty onconstitution-making to put it there in thefirst place. But such is life in Californiawhen it comes to its basic Statedocument.20

The reform movement did not go away, and, bythe 1960s, various states were revising theirconstitutions. California, however, had first tohurdle the obstacle of legislative resistance to aconstitutional convention. Both the 1849 and1879 framers had provided for majorconstitutional revision only by calling aconstitutional convention (1849 Article X,Section Two, amended in 1853, and 1879 ArticleXVIII, Section Two). The California Legislatureobviated the necessity of a convention bysecuring voter approval to amend Article XVIII,Amending and Revising the Constitution. Theamendment authorized the legislature to act asa constitutional convention, allowing it tosubmit its own revisions to the electors forratification. In November of 1962, Californiavoters approved Proposition 7 (AssemblyConstitutional Amendment No. 14, Statutes,1961, Resolution Chapter 222) by a vote of2,901,537 to 1,428,034.21

Why had the legislature repeatedly resisted aconstitutional convention? Baker contended that‘‘the issue of apportionment of seats in the Stateand Federal Legislatures’’ was ‘‘the greatestsingle barrier to the much-needed revision ofState Constitutions.’’ Indeed, the 1934 Bureau ofPublic Administration report listed the‘‘problem of apportioning the legislature’’ as anissue for constitutional revision.22

In almost every state, legislatures reapportionedtheir own districts. Following the federaltwo-house model, many legislatures basedrepresentation in their lower houses onpopulation, and in their upper houses ongeography or counties. In addition, many stateshad not accounted for the great shift ofpopulations from rural to urban areas in theirapportionments, and had not reapportioned

since the turn of the century. As a result citydwellers had become severely underrepresentedat the state and federal levels. Why would astate legislature resist reapportionment? AsBaker succinctly described it in 1964:

politicians and office holders in manyState Legislatures and in theCongress . . . have been elected to officefrom grossly malapportioned districts.Many of whom know their jobs are atstake, for in Congressional redistrictingand in reapportionment of seats in theState Houses many incumbents will beon the outside looking in; their base ofpolitical operations ‘‘back home’’ will beconsiderably altered; perhaps sweptaway altogether.23

As citizens or local government officials whopetitioned for equal apportionment wererepeatedly rebuffed by their state legislatures,they appealed to the courts. Several landmarkSupreme Court decisions, culminating withReynolds v. Sims (377 U.S. 533) in 1964,mandated a ‘‘both houses’’ rule for all statelegislatures. Under the ‘‘equal protection’’ clauseof the Fourteenth Amendment, both houses of astate legislature had to be based on population.By 1964, the Supreme Court had ordered ‘‘bothhouse’’ reapportionment in the states ofTennessee, Georgia, Alabama, New York,Maryland, Delaware, and Virginia. Althoughprevious decisions handed down by the‘‘liberal’’ Warren Court had disgruntled someAmericans (school prayer, obscenity cases,school desegregation), a popular majorityconcurred with the ‘‘one person, one vote’’doctrine.24

California’s 1849 and 1879 constitutions hadeach provided for popular representation inboth houses of the legislature. The legislaturewas to determine districts, and to reapportionafter every federal decennial census. The 1879constitution allowed one county to contain morethan one district if the size of the populationdictated (and the legislature would have todetermine that fact), but no county could unitewith another county to form one district. As we

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have seen, by 1879 the process of urbanizationin California had begun, but it had not achievedthe massive proportions yet to come.25

By 1960, while California’s far northern countiesof Alpine, Inyo, and Mono contained acombined population of 14,240, Los AngelesCounty had achieved urban sprawl with apopulation of 6,011,140 people. Even so, thestate constitution still provided that no countycould have more than one senator, and nosenator could represent more than threecounties. Calling California’s Senate ‘‘the mostgrotesquely malapportioned in all the UnitedStates,’’ Baker predicted in 1964 that theSupreme Court would ‘‘not long endure thepresent rank discrimination against Californiavoters wherein one vote in the 28th SenatorialDistrict (Alpine, Inyo, and Mono Counties) isworth 400 times as much as a vote in the38th District (Los Angeles County).’’ 26

Following the Supreme Court rulings and basedon a federal district court ruling that California’sSenate was unconstitutionally apportioned(Silver v. Jordan, 241, F. Supp. 576, S.D. Cal.1964), the California Supreme Court ruled thatboth the Assembly and Senate had toreapportion by population (Silver v. Brown, 63Cal. 2nd 270). In October of 1965, the CaliforniaLegislature passed Assembly Bill No. 1 whichfashioned new Assembly and Senate districts.The California Supreme Court later ruled thatCalifornia’s congressional districts, as drawn in1961, were also unconstitutional and orderedreapportionment (Silver v. Reagan, 67 Cal. 2nd452). Following the guidelines proposed by theUnited States Supreme Court, the CaliforniaLegislature reapportioned its congressionaldistricts in 1967.27

By the 1966 elections, California had compliedwith the court ordered redistricting of Assemblyand Senate districts. As Larry N. Gerston andTerry Christensen have observed, the newreapportionment ‘‘shifted half of the senate’sseats from rural northern areas to southern andurban locations.’’ California’s 1966 legislature,with ‘‘twenty-two new senators and thirty-threefirst-term Assembly members,’’ was ‘‘younger,

better educated . . . more ideological,’’ and notquite as white.28

The California Legislature created theConstitution Revision Commission withAssembly Concurrent Resolutions No. 77 andNo. 7 in 1963 (Statutes, 1963, Resolution Chapter181, and First Extraordinary Session, ResolutionChapter 7). The Assembly established thecommission, administered by the JointCommittee on Legislative Organization, in orderto implement the provisions of Proposition 7(November, 1962). The resolutions provided fora commission consisting of the Joint Committeeon Legislative Organization, who would appointnot more than fifty citizen-members, threeSenators, appointed by the Senate RulesCommittee, and three Assembly Members,appointed by the Speaker.29

To facilitate its labor the Commissionsubdivided into article-committees whichexamined and revised the constitutionarticle-by-article. Each committee reported itsfindings to the Commission which, acting as aCommittee of the Whole, considered and finallyadopted individual committee reports. TheConstitution Revision Commission, which satfrom 1964 to 1974, submitted two major reportsof recommended revisions to the Legislature in1966 and 1968.30

Beginning with Proposition 1A in November of1966, over the next nine year, the Legislaturesubmitted fourteen constitutional amendmentsto the voters for their approval. Each ballotmeasure, encompassing the legislature-approved recommendations of the ConstitutionRevision Commission, proposed amendments toindividual articles or groups of articles of theconstitution. All but four of the propositionspassed at the polls. Its work completed, thelegislature dissolved the Constitution RevisionCommission in 1974(Joint Rules Committee Resolution 57,March 4, 1974).31

California and its constitution have weatheredmany changes in 146 years. Throughout,reformers and revisionists have seen fit to retainthe basic organization of state government

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provided for in the 1849 organic law. Reformand revision have, however, established twoprecedents for California that contradict theconstitutional tenets of the original framers.

Triggered by the 1879 revision and heightenedby the 1911 ‘‘direct legislation’’ reforms,statutory law disorders the document. In 1964,Alonzo Baker reported in 1964 that seventy-fiveper cent of the California Constitution containedextraneous, non-constitutional material. The1966–1974 Constitution Revision Commissionamendments tidied the clutter, but between 1974and 1993 voters approved ninety-seven of 151proposed constitutional amendments. A votertrend since 1990 has been to reject mostpropositions at the polls, but motivation seemsto stem from the question ‘‘How much will this

cost?’’ rather than ‘‘Does this really belong inthe constitution?’’ 32

The second contradictory precedent was born ofthe need to correct the first—wholesale revisionwithout convening a constitutional convention.Article X, Section Two of the 1849 Constitution,and Article XVIII, Section Two of the 1879Constitution provided for constitutional revisiononly by means of a constitutional convention.With voter approval in 1962, the CaliforniaLegislature amended the constitution to allowfor legislature-constructed, partial revision. Likeits 1963 predecessor, the California ConstitutionRevision Commission (established Statutes 1993,Chapter 1243, SB 16) is instructed to discoverthe defects of and recommend the neededreforms to certain provisions of the fundamentallaw of the state.

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The Executive Branch

Governor’s Powers and theLieutenant Governor

The original framers made provision for apopularly elected Lieutenant Governor inArticle V (Executive Department) of the 1849Constitution. Section sixteen provided for theelection, length of term, and qualifications forthe office (the same as the Governor), as well asfor succession to the office of Governor in caseof any disability of the Lieutenant Governor(President pro tempore of the Senate). Sectionseventeen stipulated the causes for the transferof the powers and duties of the executive to theLieutenant Governor such as resignation ordeath, and including absence from the state.

The twenty-member Committee on theConstitution appears to have used the 1846constitution of New York as a model for the twosections because they are almost verbatimreproductions of sections six and seven ofArticle IV of that document. The Californiadelegation adopted sections sixteen andseventeen of Article IV as reported by thecommittee, without debate, during bothCommittee of the Whole and second readingconsideration of the executive article. At thefinal reading of Article V, ‘‘one or two verbalerrors corrected, and the article then passed’’ forenrollment in the constitution.33

At the 1878–79 revision, sections sixteen andseventeen, which had not been amended sincetheir construction, became sections fifteen andsixteen of Article IV (Executive Department) ofthe 1879 document. In its report of the executivearticle, the Committee on the ExecutiveDepartment had revised only the first of the twosections by adding a final clause stipulating thatthe Lieutenant Governor could not hold anotheroffice during his term. The second section,providing for the transfer of power and duties,remained unchanged from 1849.

During Committee of the Whole considerationof the executive article, delegate JamesO’Sullivan attempted to strike out the newclause that had been added to section fifteen bythe Committee on the Executive Department,but the house rejected his proposal. Theconvention adopted both sections fifteen andsixteen without further debate in Committee ofthe Whole, or during the first and secondconvention readings of the executive article.34

The 1879 framers had preserved the 1849provisions for a popularly elected LieutenantGovernor who assumed the powers and dutiesof the executive when the Governor was out ofthe state. In 1879 at least twenty-two other stateconstitutions provided for a popularly electedLieutenant Governor, and the same number ofstate constitutions stipulated the transfer ofpower when the Governor was out of the state.

At the November 8, 1898, election votersapproved Proposition Five (ACA 36), whichamended sections fifteen and sixteen of ArticleV of the constitution. That portion of sectionfifteen, which provided for succession to theexecutive office (Lieutenant Governor, Presidentpro tempore of the Senate), became part ofsection sixteen and was extended to include athird level of succession, Speaker of theAssembly. The 1879 revision of section fifteen,which prohibited the Lieutenant Governor fromholding another office during his term, wasdeleted. Section sixteen retained the provisionfor the transfer of powers and duties to theLieutenant Governor when the Governor left thestate. Voters again amended section sixteen in1946 (Prop. 14, ACA 4), 1948 (Prop. 9, ACA 14),and 1958 (Prop. 7, ACA 5). Each amendmentaffected provisions of the section regardingsuccession to the office of governor.

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The Constitution Revision Commission reportedtheir recommendations for the executive ArticleV to the legislature in 1966. As proposed by theArticle V Committee, the Commission deletedsome ‘‘unnecessary’’ words and shortenedsection fifteen (new section eight) to twosentences: ‘‘The Lieutenant Governor shall havethe same qualifications as the Governor. He isPresident of the Senate but has only a castingvote.’’ Provision for the election of theLieutenant Governor would be incorporatedwith section sixteen materials in new sectionnine.35

The section sixteen order of succession to theexecutive office had, by 1966, been amended to(1)Lieutenant Governor, (2) President protempore of the Senate, (3) Speaker of theAssembly, (4) Secretary of State, and (5)Attorney General. In the new section nine, theCommission deleted the line of succession,allowing the legislature to determine ‘‘an orderof precedence after the Lieutenant Governor.’’The Commission retained, without comment,the provision that the Lieutenant Governor‘‘shall act as Governor’’ during the ‘‘absencefrom the state’’ of the Governor.36

Although they retained the instruction that ‘‘TheLieutenant Governor shall become Governorwhen a vacancy occurs in the office ofGovernor,’’ the Commission noted that theconstitution contained no provision fordetermining disability of the Governor, or theexistence of a vacancy. ‘‘Concluding thatdecisions on these matters should be, as far aspossible, free from political pressures,’’ the finalclause of section nine stated: ‘‘The SupremeCourt has exclusive jurisdiction to determine allquestions arising under this section.’’ 37

The legislature presented to the voters inProposition 1A (ACA 13), the exactrecommendations of the Constitution RevisionCommission, except that they numbered thenew sections nine and ten and added a finalclause to section ten. After allowing for theSupreme Court’s exclusive jurisdiction todetermine all questions, the new sectionconcluded: ‘‘Standing to raise questions ofvacancy or temporary disability is vested

exclusively in a body provided by statute.’’ OnNovember 8, 1966, Californians ratifiedProposition 1A by a vote of 4,156,416 to1,499,675.38

On November 5, 1974, voters ratifiedProposition 11 (ACA 99) which amendedsections nine and ten of Article V. Theamendments deleted the gender specificpronouns ‘‘he’’ and ‘‘his,’’ substituting thegender neutral ‘‘The Lieutenant Governor,’’ andthe possessive ‘‘Governor’s’’ in their place.Sections nine and ten of Article V, Executive,have not been amended since 1974.39

Research indicates that the issues before thepresent Constitution Revision Commissionrelating to the LieutenantGovernor—Governor’s powers and dutiespassing to the Lieutenant Governor when theGovernor leaves the state, and the separateelections of the Governor and LieutenantGovernor—have not been historically debated.The provisions in question, which date back tothe 1849 Constitution, have not, until recently,been ‘‘issues.’’ Since the first statewide electionsin 1849, California voters have electedGovernors and Lieutenant Governors ofdifferent political parties concurrently onlyseven times. More importantly, five of thoseoccasions include the last five gubernatorialelections since 1978.40

1886 Governor Washington Bartlett DemocratLieutenant Governor Robert W. Waterman Republican

1894 Governor James H. Budd DemocratLieutenant Governor Spenser G. Millard Republican

1978 Governor Edmund G. Brown, Jr. DemocratLieutenant Governor Mike Curb Republican

1982 Governor George Deukmejian RepublicanLieutenant Governor Leo T. McCarthy Democrat

1986 Governor George Deukmejian RepublicanLieutenant Governor Leo T. McCarthy Democrat

1990 Governor Pete Wilson RepublicanLieutenant Governor Leo T. McCarthy Democrat

1994 Governor Pete Wilson RepublicanLieutenant Governor Gray Davis Democrat

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Perhaps, as Gerston and Christensen havesuggested, the opposing-party phenomena canbe assigned to the relative weakness of theDemocratic and Republican parties inCalifornia. Perhaps, as Gerston and Christensenhave suggested, the California electorateperceives and uses the separate-ballot election ofGovernor and Lieutenant Governor as a checkon the power of the Governor. Whatever thecause or combination of causes, the trend is anhistorically recent one.41

The Superintendent of PublicInstruction and the State Boardof Education.

The original framers provided for a popularlyelected Superintendent of Public Instruction insection one of Article IX, Education, of the 1849Constitution. Section one instructed thelegislature to prescribe the election, duties, andcompensation of a Superintendent of PublicInstruction, who would serve a three-year term.In 1851, the legislature established the office ofthe Superintendent, and delineated the powersand duties of the elected position (Statutes 1851,Chapter 126, p. 491). In 1852, the legislatureestablished a State Board of Educationconsisting of the Governor, Superintendent ofPublic Instruction, and Surveyor General(Statutes, 1852, Chapter 53, p. 117).

Section one of Article V, as reported by theCommittee on the Constitution at the 1849constitutional convention, was copied from the1844 Constitution of Iowa, Article X, SectionOne. During Committee of the Wholeconsideration of the Education Article, JohnMcDougal, delegate and future Governor ofCalifornia, proposed to amend section one ‘‘thatit be left to the Legislature to elect thesesuperintendents.’’ Delegate Morton McCarverresponded that he ‘‘was decidedly in favor ofplacing every thing in the hands of the people,and particularly the subject of SchoolCommissioners.’’ McDougal withdrew hisamendment and the house adopted the sectionas reported. During the convention second and

third readings of the education article the houseadopted section one, as originally reported,without debate.42

In 1862, California voters ratified a legislativeamendment to section one of Article IX. Theamendment increased the Superintendent’s termof office to four years, and provided that theSuperintendent be elected at the specialelections for judicial officers (Statutes, 1862,Chapter 317, pp. 434–35, 579, 586).

The 1879 framers maintained the provision foran elected Superintendent of Public Instructionin Article IX, Section Two of the newconstitution. The new section changed the timeof election to coincide with gubernatorialelections, and specified compensation to be thesame as for the Secretary of State. Although theState Board of Education had been in existencesince 1852, the 1879 framers did not specificallycite it in the final draft of the article. Sectionsthree and seven of Article IX provided for theelection of county superintendents and localboards of education.

During Committee of the Whole considerationof section two as reported by the Committee onEducation, lengthy debate ensued regarding thenecessity of having a Superintendent of PublicInstruction, and also over the salary he shouldbe paid. Delegates such as William F. White,who favored abolishing the office ofSuperintendent, argued ‘‘in the interest ofeconomy.’’ Thomas H. Laine, who calledsuperintendents ‘‘mere parasites,’’ wanted toreduce the salary below that of the Secretary ofState. The office had cost the state $16,000. overthe last two years. Volney Howard agreed thatthe education system in California had been‘‘costing too much.’’ John R. W. Hitchcock calledthe office ‘‘superfluous’’ and a ‘‘waste ofmoney.’’ Albert P. Overton complained that theschool system had cost the taxpayers threemillion dollars and was ‘‘the ruination of theState.’’ 43

Delegate Joseph W. Winans, who chaired theCommittee on Education, cited seventeen otherstate constitutions that specifically provided fora popularly elected Superintendent of Public

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Education. Defending the section he argued thatCalifornia’s school system, with about 150,000youths enrolled, needed ‘‘a single executivehead.’’ Alexander Campbell warned: ‘‘It will notdo to fritter away the powers of this officer, anddistribute them here and there at random.’’ Itwas ‘‘a false economy.’’ Wilbur F. Heustis,Charles W. Cross, Jacob R. Freud, Marion Biggs,Eli T. Blackmer, and John T. Wickes defendedthe office of Superintendent as a necessary,laborious position of dignity, meriting a salaryequal to the Secretary of State.44

James S. Reynolds, a member of the Committeeon Education, questioned the priorities of thedelegation:

Your committee [of the whole] has votedto prevent the counties, cities, andtownships from contracting debts tobuild any school houses at all, but givethem unlimited privileges of contractingdebts for Court Houses and jails. . . . Youhave voted to increase the expense of thejudiciary from one to two hundredthousand dollars per annum, and youare opposed to increasing the expensesof education. I will admit, sir, that this isconsistent, for if you are not going tohave any education you will need morejudiciary; you will need more CourtHouses, and you will need more jails.Why, sir, we had better go to work andsee how may more penitentiaries theState can afford to build. You will wantsome more penitentiaries.45

The Committee of the Whole finally rejectedLaine’s proposal to cut the salary of theSuperintendent below that of the Secretary ofState, and Hitchcock’s motion to strike thesection completely. Section two, as reported bythe Committee on Education, was adopted bythe convention. The house adopted the sectionwithout amendment or further debate duringthe convention first and second readings.

Section seven of Article IX as originally reportedby the Committee on Education provided forthe popular election of a State Board ofEducation consisting of two members elected

from each Congressional district. TheSuperintendent of Public Instruction would beex officio President. Section eight delineated theduties of the State Board of Education, includingadopting a series of textbooks, testing ofteachers, and granting of certificates. InCommittee of the Whole the convention deletedsection seven entirely, without debate. Theyamended section eight (which then moved intoposition as section seven) by eliminatingreference to the State Board of Education andsubstituting local Boards of Education, Boardsof Supervisors, and County Superintendents.The ‘‘school book question,’’ which had vexedthe legislature for some time (publishinglobbies), was better left to local school boardsand county supervisors.46

During the convention first reading, Blackmerattempted to amend section seven again bysubjecting local decisions to the approval of thelegislature. Arguing unsuccessfully that thesection provided no uniformity or statewidestandards for textbooks or teachersqualifications, Blackmer summarized: ‘‘ThisConvention has decided to do away with theState Board of Education. I voted againststriking that out . . . because, in my judgement,it is a need of our system.’’ The house rejectedBlackmer’s amendment and concurred withCommittee of the Whole actions.47

During the convention second reading,delegates again made failed attempts to allowlegislative authority Thomas B. McFarland wasin favor of striking out section seven ‘‘andleaving it to the Legislature to formulate asystem which this Convention has failed to do.’’Morris M. Estee argued for a ‘‘State system’’with uniform rules, laws, and regulations. ‘‘Theeducational interests of this State are the mostimportant interests in the state. We ought totreat it with all the dignity that belongs to it.’’Future Congressman Marion Biggs accusedEstee, who had argued against legislativecontrol of the Railroad Commission, of politicalinconsistency. ‘‘ ‘Stand by your guns,’ ’’ hequoted to Estee, ‘‘ ‘and keep your powderdry.’ ’’ 48

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In 1884, a constitutional amendment repealedsection seven of Article IX and substituted aprovision similar to the original report of the1879 Committee on Education. The State Boardof Education, consisting of the Governor,Superintendent of Public Instruction, and theprincipals of the state normal schools,administered the publication and distribution ofa uniform series of textbooks. The legislaturegained authority over county Boards ofEducation and county Superintendents. A 1912amendment to section seven extendedlegislative authority over the State Board ofEducation. The Legislature would provide forthe election or appointment of a State Board ofEducation.

In 1968 the Constitution Revision Commissionreported their proposed revisions for Article IXto the Legislature. They noted that theSuperintendent of Public Instruction ‘‘is electedstatewide under existing provisions.’’ TheCommission proposed that ‘‘the Legislature maychange the method of selection by two-thirdsvote of the members of each house.’’ Regardingthe State Board of Education, the Commissionreported: ‘‘The Legislature’s power to determinethe method of selection under existingprovisions is preserved under the proposal.Statutes presently provide for the appointmentby the Governor with Senate approval.’’ At theNovember, 1968 elections, Proposition 1(ACA 30), encompassing the Commission’srecommendations, failed at the polls.49

California voters ratified Proposition 6 (ACA 60)on June 2, 1970. The amendment, which favoredlocal choice of appropriate textbooks, reducedsection seven to ‘‘The Legislature shall providefor the appointment or election of the StateBoard of Education and a board of Education ineach county.’’ (Proposition 8, 1976 added thepresent provision for joint county boards).Proposition 6 of 1970 also added the presentsection 7.5 which provides that the State Boardof Education adopt textbooks for grades onethrough eight statewide, to be furnishedwithout cost. Proposition 11 of 1974 repealed thegender specific ‘‘he’’ and ‘‘his’’ from section two,and Proposition 140 (Political Reform Initiative

of 1990) limited to not more than two the termsof the Superintendent of Public Instruction.50

Insurance Commissioner

Neither the 1849 nor the 1879 framers providedfor an Insurance Commissioner, appointed orelected, in the California Constitution. TheLegislature had provided for the office ofInsurance Commissioner as early as 1868, butthe office did not become an elected one until1988 when voters ratified Proposition 103.Proposition 103, an initiative statute, addedSection 12900 to the Insurance Code whichprovided for the popular election of anInsurance Commissioner at gubernatorialelections.

The history of the office of the InsuranceCommissioner is statutory rather thanconstitutional. Chapter 300, which establishedthe office of Insurance Commissioner,transferred the powers and duties relating toinsurance companies in California from theState Controller to the new Commissioner(Statutes, 1867–1868, Chapter 300, p. 336).Insurance companies nominated the InsuranceCommissioner at statewide conventions. TheGovernor either approved the nomination orappointed another person to serve annually.Section 368 of the Political Code, established in1872, provided for an InsuranceCommissioner—an executive officer, appointedby the Governor, subject to the approval of theSenate. In 1915, the Legislature amendedPolitical Code Section 368 to provide that theInsurance Commissioner serve four-year terms.Provisions for the Insurance Commissioner weretransferred from the Political Code to theInsurance Code when it was established in 1935(Statutes, 1935, Chapter 145).

According to the text of the initiative statute, the‘‘voter revolt’’ that lead to the construction andpassage of Proposition 103 in 1988 resulted from‘‘enormous increases in the cost of insurance,’’making insurance ‘‘unaffordable andunavailable to millions of Californians.’’Insurance ‘‘reform’’ was necessary becauseexisting laws ‘‘inadequately’’ protected

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consumers from the ‘‘excessive, unjustified, andarbitrary rates’’ of insurance companies. Inaddition to reforms such as rate roll backs, theinitiative provided for an ‘‘accountable’’Insurance Commissioner who would bepopularly elected. Section Four of the initiativestatute that added Section 12900 to theInsurance Code, read: ‘‘12900 (a) Thecommissioner shall be elected by the People inthe same place and manner and for the sameterm as the Governor.’’ 51

The question of whether popular electionprovides accountability or does not requiresfurther inquiry, but an instructional story ofGovernor accountability is told in theunprocessed papers of the InsuranceCommissioner at the California State Archives.The Watts Riots in Los Angeles of August 11–17,1965 had resulted in the destruction of$140 million in property.52 Soon after, businessowners in or near the affected area begansending letters of complaint to the office of theInsurance Commissioner. Citing reasons ofhigh-risk, insurance companies were cancellingthe property insurance of the business owners.Similar riots had been set off in other cities inthe country. In those tense, volatile timesanother riot could easily be sparked. In theirletters to the Commissioner business ownersexplained that, without insurance, they riskedfinancial ruin.

The letters of reply from the Commissioner’soffice asserted that he was unable to help thebusiness owners because the Commissioner didnot have that type of regulatory authority overprivate insurance companies in California. Therebuffed and desperate consumers thenpetitioned the office of the person who, becausehe had appointed the Commissioner, wasultimately accountable. Correspondence beganto appear from Governor Pat Brown to theInsurance Commissioner inquiring about thesituation, and offering suggestions for remedy.Administrative records of the InsuranceCommissioner indicate that the office had soonestablished a review board and was consideringthe cases of the business owners with cancelledpolicies on an individual basis.

State Treasurer

Section Eighteen of Article V, ExecutiveDepartment, of the 1849 Constitution providedfor the popular election of a Secretary of State, aComptroller, a Treasurer, an Attorney General,and Surveyor General. The New YorkConstitution of 1846 (Article V, Section 1), whichprobably served as a model for the 1849framers, carried a similar provision for all of theabove officers except the Surveyor General.During Committee of the Whole andConvention second reading consideration of theExecutive article, debate focused on thenecessity of a popularly elected Comptroller.The House did not question or debate the officeof Treasurer.

An 1862 legislative amendment changed theword ‘‘Comptroller’’ to ‘‘Controller,’’ andprovided for the election of all the namedofficers at the same time, place, and manner asthe Governor and Lieutenant Governor. Theirterms of office would be the same as that of theGovernor (Statutes, 1862, Chapter 317, pp.434–35, 582). The 1879 framers retained the 1849section as amended in 1862, making only agrammatical correction and relocating it toSection Seventeen of the Executive Article V.The House adopted the section without debateduring Committee of the Whole consideration ofthe article, and during the Convention first andsecond readings.

Between 1879 and 1966, the only constitutionalamendments having any effect on the ofice ofthe Treasurer were those ratified in 1946, 1948,and 1958 (see above item one), which providedfor a line of succession to the executive in caseof the incapacity of the Governor or LieutenantGovernor. By 1946, the line of succession hadextended down to the State Treasurer. As wehave seen, as recommended by the ConstitutionRevision Commission, Proposition 1A of 1966repealed the existing line of succession andtransferred the authority to determinesuccession to the Legislature.

Besides the addition of the Lieutenant Governorto the list of popularly elected constitutional

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officers, the Constitution Revision Commissionmade no substantial changes to SectionSeventeen (new Section Ten). Their 1966 draftreport commented: ‘‘In order to obtain greaterconsistency in draftsmanship, the LieutenantGovernor was added to the list of officers inexisting Section 17. Other changes are inphraseology only.’’ 53

Proposition 1A, ratified by the voters onNovember 8, 1966, contained the revisionrecommended by the Constitution RevisionCommission (except that it had beenrenumbered Section Eleven): ‘‘The LieutenantGovernor, Attorney General, Controller,Secretary of State, and Treasurer shall be electedat the same time and places and for the sameterm as the Governor.’’ Proposition 140, thePolitical Reform Initiative of November 6, 1990,added the final sentence to the present SectionEleven limiting each officer to two terms.54

Board of Equalization

The 1849 framers did not provide for a Board ofEqualization, but they did mandate that taxes beequal and uniform throughout the state; thatproperty be taxed according to its value; andthat assessors be elected in the district or countyin which the property is situated (Article XI,Miscellaneous Provisions, Section Thirteen).The provision, which was not part of theoriginal draft report of the article, was firstintroduced by Henry W. Halleck of Monterey onbehalf ‘‘of the southern members,’’ duringCommittee of the Whole consideration of ArticleXI. The section, probably drafted by Pablo de laGuerra of Santa Barbara, was similar to aprovision in the Constitution of Alabama(Browne, Debates pp. 256, 364–65, 371).

Debate over the section was lengthy, and hadthe effect of splitting the delegationgeographically into north versus south. Becausethere was no ‘‘capitation tax,’’ state tax revenuewould necessarily come from property, or, moreprecisely, land. The larger land holders,therefore, would shoulder most of the taxburden. Shouldn’t those persons who were

earning money in the mines and who were thelarger population be taxed, even though theydid not necessarily own land?

Concentrated principally in the southern part ofthe state, the Californio, ranchers had only avague understanding of the Anglo-Americanvaluation of land for taxation. For theCalifornios the value of their lands had beenbased on the cattle the land produced, ratherthan its potential as sub-divided real estate.Spanish and Mexican law prohibited thesubdivision and sale of a land grant. It wasimportant for the Californios to have locallyelected assessors who understood theirvaluation. The Mexican delegates perhaps knewthat the only way they could realize theAnglo-based assessed value of their land was tosell it. After considerable debate, the Houseconcurred with the section, as adopted inCommittee of the Whole and amended duringthe convention second reading (As adopted,Section 13 copied in part Section 27 of Art. XI ofTexas’s 1845 Constitution, provision for locallyelected assessors added. Brown, Debates, pp.364–76).

To facilitate the mandate for equal and uniformtaxation the Legislature established the Board ofEqualization in 1870 (Statutes, 1869–1870,Chapter 489, p. 714). The Board consisted of theController and two Governor-appointedmembers, serving at his pleasure, for a term offour years. After codification in 1872, provisionfor the Board of Equalization, its members andtheir salaries, could be found in Political CodeSection 3696.

In an ironic interpretation of the intent of the1849 framers, the California Supreme Court in1874 found that Section 3696 of the PoliticalCode was unconstitutional (Houghton v. Austin,47 Cal. 646). . The court removed the Board ofEqualization’s power to change propertyvaluations of county assessors because SectionThirteen of Article XI of the constitution hadmandated that assessors had to be elected in thedistrict or county in which the property waslocated. An 1876 amendment to the PoliticalCode provided for a State Board of Equalizationwhich consisted of the Governor, Controller, and

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Attorney General. The Legislature repealed theold provision for salaries (Statutes, 1875–1876,Chapter 577, p. 11).

By making a constitutional provision for theBoard of Equalization, the 1879 framers assuredits continued existence and returned theauthority that the California Supreme Court hadstripped from it in 1874. The new Boardconsisted of the Controller and one memberelected from each congressional district of thestate, to serve four-year terms (Article XIII,Revenue and Taxation, Sections Nine and Ten).

The 1879 debate regarding the Board ofEqualization indicates that the convention didnot question the necessity of the existence of theBoard, or that the members should be elected.Debate focused on the number of Boardmembers, and the power of the Board to changeindividual assessments. The statements of manydelegates show a strong central motivation forinterest in the Board of Equalization. Unlike the1849 Californios struggling to maintain adoomed livelihood, the 1879 reformers seemeddetermined to revitalize and strengthen theBoard in preparation for coming battle.Powerful interests, such as the Southern PacificRailroad and Miller and Lux, had already usedthe courts to render the Board impotent. TheBoard of Equalization had become anotherweapon of reform.55

On November 4, 1884, voters ratified aconstitutional amendment authorizing theLegislature to redistrict the state into fourequalization districts, and to provide for theelections of Board of Equalization membersfrom those districts rather than congressionaldistricts. On November 8, 1910, voters ratifiedan amendment which deleted all but the firstsentence of Section Ten of Article XIII, whichmaintained the 1849 provision for localassessment of property. The amendment alsocreated a new Section Fourteen that greatlyexpanded the provisions taken from Section Tenregarding assessments of railroads. The newsection, consisting of almost 2,000 words,delineated in great detail tax assessment forpublic utilities, personal property, and insurancecompanies in California.

Records of the Constitution RevisionCommission indicate that as early as 1964, theJoint Committee on Legislative Organization,which administered the Commission, wasscrutinizing the lengthy and ponderous ArticleXIII on Revenue and Taxation.Recommendations of the Commission made nosubstantive changes in the provision for anelected State Board of Equalization, however. ByNovember 5, 1974, the Legislature had placedthe work of the Revision Commission on theballot. Proposition 8 (ACA 32) applied solely toArticle XIII, deleting 8,200 words, andtransferring many provisions to the statutesbooks. Sections Nine and Ten of the 1879 ArticleXIII essentially became new Sections Seventeen,Eighteen, and Nineteen of Article XIII of thepresent constitution. Proposition 140, ‘‘ThePolitical Reform Act of 1980,’’ limited to two theterms of any Board of Equalization member.

State Personnel Board

There were no provisions for a civil servicesystem in either the 1849 or 1879 constitutions.The system, which became constitutional in1934, had a statutory history prior to that time.

The Legislature established a civil servicesystem for California in 1913 (Statutes, 1913,Chapter 590, p. 1035). The State Civil ServiceCommission, a three-member body appointedby the Governor for four-year terms, wascreated to administer the system. The statuteprovided for the salaries of the commissioners,and included a proviso that a commissionercould be removed only by an Assembly andSenate concurrent resolution adopted by atwo-thirds vote of each house.

In 1921, the Legislature reorganized the StateCivil Service Commission (Statutes, 1921,Chapter 601, p. 1020). One member would bedesignated as the executive, ex officio president,and principal administrator. The statute outlinedthe duties of the two remaining members whowere designated as associates, and establishedsalaries. In 1925 the Legislature againreorganized the Civil Service Commission,

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reducing it to one member with a higher salary(Statutes, 1925, Chapter 236, p. 391). In 1927 theLegislature reorganized the State Civil ServiceCommission still another time, changing it backto its 1921 configuration of three members andauthorizing travelling expenses (Statutes, 1927,Chapter 43, p. 75).

In 1929 the Legislature established a newDivision of Personnel and Organization withinthe Department of Finance to administer thestate civil service system. The statute transferredthe former powers and duties of the State CivilService Commission to the new Division ofPersonnel and Organization. Members of theCivil Service Commission, with the approval ofthe Director of Finance, would appoint the Chiefof the new Division who was given the formerduties of the executive of the State Civil ServiceCommission. The Department of Financeretained the State Civil Service Commission as a‘‘quasi-legislative and quasi-judicial body.’’ 56

Proposition 7, the initiative constitutionalamendment that established Article XXIV(State Civil Service) in 1934, created the StatePersonnel Board as its administrative head andabolished the Division of Personnel andOrganization. The Board consisted of fivemembers appointed by the Governor, with theadvice and consent of the Senate, for ten-yearterms. The first Board would consist of theDirector of Finance, the Legislative Counsel, andthe Controller, as ex officio members, plus twoGovernor-appointed members. Members couldbe removed only by a two-thirds vote of eachhouse of the Legislature, and compensation formembers would be the same as for the previousDivision of Personnel and Organization. The

Board was ‘‘authorized to appoint an executiveofficer who should be a member of the statecivil service, but not a member of the board.’’ 57

Proponents of civil service reform Proposition 7explained in the ballot arguments why membersof the Personnel Board served ten-year terms:

The act provides a nonpartisan PersonnelBoard of five members to serve ten-yearterms so staggered that each newGovernor will have but one appointmenton a five-man board upon taking office.This four-to-one ration will be aneffective means of preventing politicalinterference with the efficientadministration of State business.58

In their consideration of Article XXIV forrevision in 1965, the Constitution RevisionCommission determined to ‘‘continue to providefor the Personnel Board,’’ serving ten-yearterms.59

Proposition 14 of 1970 (ACA 36), revised theCivil Service Article XXIV as recommended bythe Constitution Revision Commission. Thesections which had originally provided formembership and compensation and duties ofthe Personnel Board, Sections 2(a), (b), (c), and3(a), stayed substantially the same (except forthe addition of 3(b)). Proposition 14 of 1976(ACA 40), which repealed Article XXIV andcreated the present Article VIII, maintained the1970 organization of the Personnel Board—fiveappointed members serving ten-year termswith a directive to enforce the civil servicestatutes—in Sections 2(a), (b), (c), and 3(a)and (b).

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THE LEGISLATIVE BRANCH

Legislative Structure

The framers of both the 1849 and 1879Constitutions provided for a two-houseLegislature, consisting of a Senate and Assembly(Article IV, Legislative Department, SectionOne). Both conventions adopted the provisionswithout debate. The question of a unicamerallegislature was not entertained. The federalgovernment had instituted a bicamerallegislature, and it was the adopted practice ofthe states. It is not surprising, therefore, that theconvention proceedings do not contain historicaldebate on the subject.

As a champion of the newly constructed, and asyet unratified, Constitution of the United States,James Madison eloquently argued thatbicameralism would help bring ‘‘order andstability’’ to the new government (TheFederalist, No. 62). He advocated a ‘‘second,’’‘‘distinct’’ legislative branch as a check on thefirst branch. As unfortunately occurs inrepublican governments, Madison argued,elected representatives

may forget their obligations to theirconstituents and prove unfaithful to theirimportant trust. In this point of view asenate, as a second branch of thelegislative assembly distinct from anddividing power with the first, must be inall cases a salutary check on thegovernment. It doubles the security tothe people by requiring the concurrenceof two distinct bodies in schemes ofusurpation or perfidity, where theambition or corruption of one wouldotherwise be sufficient.60

The Articles of Confederation (1778) hadprovided for a single-house Congress of‘‘annually appointed’’ representatives from thevarious states who served no more ‘‘than threeyears in any term of six years.’’ Madison’streatise, as much an indictment of the Articles as

a defense of the new Constitution, offered theupper house of senators serving six-year termsas a check on the ‘‘important errors’’ ofshort-term, unmotivated legislatures.

[N]o small share of the presentembarrassments of America is to becharged on the blunders of ourgovernments. . . . What indeed are allthe repealing, explaining, and amendinglaws, which fill and disgrace ourvoluminous codes, but so manymonuments of deficient wisdom; somany impeachments exhibited by eachsucceeding against each precedingsession.61

Every state election changed one-half of thecongressional representatives. The ‘‘rapidsuccession of new members,’’ no matter howqualified they were, led to capricious ‘‘publiccouncils.’’ A Senate would provide ‘‘some stableinstitution in the government.’’ Inconstantnations, like inconstant people, fall victim totheir own ‘‘unsteadiness and folly.’’ America,Madison lamented, ‘‘is held in no respect by herfriends . . . is the derision of her enemies;and . . . is a prey to every nation which has aninterest in speculating on her fluctuatingcouncils and embarrassed affairs.’’ 62

‘‘Mutable policy’’ had proven even moredisastrous internally. The ‘‘sagacious, theenterprising, and the moneyed few’’ gainedunfair advantage ‘‘over the industrious anduniformed’’ masses by following and investingin fluctuating commerce and revenue laws.Inconstancy and instability ‘‘poisons theblessings of liberty itself.’’

It will be of little avail to the people thatthe laws are made by men of their ownchoice if the laws be so voluminous thatthey cannot be read, or so incoherent

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that they cannot be understood; if theybe repealed or revised before they arepromulgated, or undergo such incessantchanges that no man, who knows whatthe law is today, can guess what it willbe tomorrow. Law is defined to be a ruleof action; but how can that be a rule,which is little known, and less fixed? 63

‘‘No government,’’ Madison concluded, ‘‘anymore than an individual, will long be respectedwithout being truly respectable; nor be trulyrespectable without possessing a certain portionof order and stability.’’ The document thatAlexander Hamilton, James Madison, and JohnJay had so diligently defended provedsuccessful. An indisputable masterpiece oforganic law, the Constitution of the UnitedStates commanded the respect of many nations.It’s provisions for such institutions asbicameralism helped bring order and stability toAmerica.64

Warning the delegation against ‘‘legislativeenactments’’ in the organic law, and remindingthem that the people had charged them withpreparing ‘‘a system by which they can enactlaws for themselves,’’ delegate Charles T. Bottssaid at the 1849 convention: ‘‘No civilizedpeople pretend to pass laws without at leastmaking them run the gauntlet of two Houses,differently constituted.’’ By 1849, when theframers of California’s first constitution setabout their work, Madison’s doctrine ofbicameralism had become as inviolable as thefederal constitution itself.65

As we have seen, after the turn of the century,the issue of reapportionment had preventedconstitutional revision by convention inCalifornia. The reapportionment problem alsoopened the discussion for unicamerallegislatures. According to David W. Brady andBrian J. Gaines ‘there have been a dozen seriousefforts to bring unicameralism to California.’’Differing ‘‘in myriad respects,’’ each successiveproposal has ‘‘had less to do withunicameralism than some other proposedchange.’’ As early as 1913, regional tensionsbrought on by the reapportionment issue had‘‘manifested in various plans to re-organize the

legislature.’’ In 1913 and 1915, legislatorsproposed unicameral constitutionalamendments in both the Senate and Assembly. ,If they got as far as a vote, however, the billsfailedto get the necessary two-thirds majority(1913—SCA 73, ACA 91; 1915—SCA 16,ACA 38).66

The 1920 census clearly revealed the results ofurbanization—the majority of Americans livedin cities. In California, seventy percent of thepopulation lived in the San Francisco Bay areacounties and in the cities of Los Angeles Countyand adjacent southern counties. In 1910,thirty-four percent of California’s populationlived in the Bay Area counties, thirty-twopercent lived in the southern counties. By 1920,the shift that would define California’s futureurban concentration had begun. Los Angelesand the south, with a population of 1,346,600,had overtaken San Francisco and the north’spopulation of 1,069,541 (thirty-nine percent andthirty-one percent respectively of the total statepopulation of 3,426,861).67

After 1920, apportionment standoffs in theCalifornia legislature occurred at two levels:urban versus rural, and north versus south. Forthe next forty-four years, until the federal andstate supreme courts decided the issue for thelegislature, the apportionment battle andaccompanying plans for legislativereorganization continued. Unicameral legislativeconstitutional amendments, if they did reach avote and many did not, never won thenecessary two-thirds majority (SCA 18, 1921;SCA 34, 1923; SCA 12, 1925; SCA 6, ACA 69,1935; SCA 21, ACA 28, ACA 33, 1937; ACA 24,1939; ACA 17, 1941).68

In 1934, when California voters approved a callfor a constitutional convention (the one that thelegislature never enacted), several states wereappraising unicameralism. By 1936 unicameralbills had been considered in twelve states. Thefollowing year twenty-one states consideredover forty such proposals. Nebraska hadadopted a non-partisan, single-house legislaturein 1934, but was the only state to ever actuallyenact that reform.69

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Brady and Gaines have noted that after 1964,unicameralism continued to resurface as apopular reform into the early 1970s. Issues thathad always underscored the debate became thedefining issues after reapportionment settled.Before 1964,

Proponents looked to unicameralism toimprove: (1) efficiency; (2) economy, and(3) responsibility. Moreover, the claimwas often made that the legacy of HiramJohnson’s Progressive governorship wasan increase in ‘‘executive control andleadership’’ that left the two-houselegislature ‘‘unwieldy and cumbersome.’’

Economy became a ‘‘relatively minor issue’’after 1964. ‘‘The central issues, instead, wereefficiency and effectiveness, particularly inexecutive-legislative relations.’’ 70

In the March 1965 staff report of theConstitution Revision Commission to theExecutive Committee of that body,recommended revisions to Section One, ArticleIV included only simplification of language anddeletion of statutory material. Bicameralism wasnot addressed.

The language of existing Section 1 whichvests legislative power in the Legislatureand reserves initiative and referendumpowers to the people has beensimplified. The provision requiring everystatute to have an enacting clause asspecified has been deleted; it is to beplaced in the Government Code becauseit does not involve a basic constitutionalright.

Following a ‘‘more rational organization ofArticle IV,’’ the Commission recommendedremoval of the lengthy material added to sectionone in 1911 (Initiative and Referendum) to theend of the article.71

The revision ratified by the voters in 1966(Proposition 1A) is today’s simplified SectionOne:

The legislative power of this State isvested in the California Legislature

which consists of the Senate andAssembly, but the people reserve tothemselves the powers of initiative andreferendum.

The lengthy initiative and referendum materialswere removed to the end of Article IV, sectionstwenty-two through twenty-six.72

Shorten Legislative Sessions

The 1849 constitutional framers provided forannual sessions of the legislature, commencingon the first Monday of January, but did notstipulate how long each session should run(Article IV, Legislative Department, SectionTwo). The section as reported by the Committeeon the Constitution copied Iowa’s 1844constitution in wording and structure, exceptthat the space for ‘‘annual’’ or ‘‘biennial’’ wasleft blank to be determined by the convention.Iowa’s constitution of 1844 provided for bienniallegislative sessions (Article IV, Section Two).

During Committee of the Whole considerationof the section debate centered on the question ofannual or biennial sessions. Delegates WilliamM. Gwin, Oliver M. Wozencraft, Morton M.McCarver, Jacob R. Snyder, and Elam Brownargued for biennial sessions. Gwin andWozencraft asserted that annual sessions wouldbe expensive and lead to excessive legislation.Gwin noted that all the new states had biennialsessions—Texas, Louisiana, Mississippi,Arkansas, Tennessee, Illinois, Missouri, Iowa,Wisconsin, and Michigan. In Iowa a legislatorgot two dollars a day for a maximum of fiftydays, and one dollar a day after that. Theexpense would be much greater in inflationaryCalifornia. McCarver asked how the revenuewould be raised to defray the expense of anannual legislature? A land tax would be‘‘oppressive’’ to the limited land owners, and acapitation tax ‘‘revolting.’’ Brown fearedspeedily enacted and repealed laws. Laws needtime to be tested. Additionally, no matter howwealthy California was, the worst policy a newstate could adopt was ‘‘to establish an expensivesystem of government.’’ 73

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Delegates Robert Semple, Myron Norton, HenryW. Halleck, Charles T. Botts, Edward Gilbert,and Winfield S. Sherwood favored annualsessions. Semple argued that biennial sessionswould not allow enough time to enact an entirecode of laws for California. It would be‘‘impossible’’ to keep legislators at the capitalfor more than two or three months a year. ‘‘Therapid progress of affairs in this country, and thegreat value of time, would render a longersession impracticable.’’ Norton exclaimed ‘‘Wehave no laws here.’’ Regarding the expense,‘‘What of that?’’ California had proportionatemeans. ‘‘We have great wealth here.’’ 74

Halleck asserted that ‘‘If there is a country in theworld, at the present time, that requires theLegislature to meet at least once a year, it isCalifornia.’’ The Legislature had to enact newlaws to provide for the ‘‘peculiar circumstances’’of California. In addition, there was an‘‘immense emigration directing its course intoCalifornia.’’ If necessary limit the length of eachsession ‘‘to a certain number of days ormonths,’’ but keep the sessions annual.75

Botts feared that biennial sessions would leavetoo much power to the Governor in the interim.The people of California ‘‘will not be contentthat any one man power should govern them inretracting or improving the laws which theymay make.’’ Regarding the expense, everythingwas expensive in California. The people were,however, ‘‘the most wealthy in the world.’’Gilbert reminded Gwin that all of the biennialstates that he named had seven to thirty yearsexperience as territories, allowing time toestablish and work out their first laws.‘‘Nothing but annual sessions would answer thedemands of the community’’ for the repeal andreplacement of the ‘‘repugnant’’ system now inplace.76

The convention, in Committee of the Whole,adopted annual sessions. Gwin tried to amendthe section during the convention secondreading with ‘‘until otherwise provided by law.’’The proviso allowed the legislature or thepeople the opportunity to change to biennialsessions after a few years without having toamend the constitution. After the same debate

as occurred in Committee of the Whole thedelegation rejected Gwin’s amendment by avote of eight to twenty-five. By 1862 SectionTwo had been amended to change to biennialsessions commencing on the first Monday inDecember rather than January. The amendment(Chapter 317, Statutes, 1862) also limitedlegislative sessions to 120 days.77

The 1879 framers adopted biennial legislativemeetings, but changed the commencement backto the first Monday in January. With theexception of the session following ratification ofthe constitution which could run 100 days,regular sessions of the legislature could notexceed sixty days without a loss in pay. Thedelegation added a final clause to the newArticle IV, Section Two prohibiting theintroduction of any bill after fifty days from thecommencement of any regular session without atwo-thirds vote of the members. (The firstsession was allowed ninety days).

During the 1878–79 debates a general mood ofdistrust and loss of faith with the legislatureprevailed. The Workingmen delegates had runon the platform: ‘‘There shall be no speciallegislation by the state legislature, and no statelegislature should meet oftener than once inevery four years.’’ Workingmen delegatesWilliam F. White, and Charles C. O’Donnell, andNon-Partisans George A. Johnson, and EdwardMartin spoke in favor of ‘‘quadrennial’’ sessions.Calling the legislature a ‘‘most expensive body,’’White said that his constituents ‘‘have felt thegreatest anxiety to have them adjourn.’’Legislators were becoming professional, ‘‘goinginto politics as a business.’’ If the legislature metonly once in four years, the ‘‘office hunters’’would ‘‘be obliged to go at some honestemployment.’’ 78

Johnson and Martin spoke in the interests ofeconomy and popular sentiment. Althoughquadrennial sessions were a ‘‘novelty,’’ Johnsonbelieved ‘‘a better class of men’’ would beelected, ‘‘and the interests of the people of thisState will be looked after better than they are atpresent.’’ Martin said that his constituentsfavored the legislature meeting once in fouryears. ‘‘In fact,’’ he added, ‘‘they do not care if it

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never meets. They can get along without it.’’Noting that there wasn’t a ‘‘State in the Union,’’or ‘‘a civilized government in creation’’ wherethe legislature met only once in four years, theconvention rejected the quadrennial proposal.79

Section Two, as originally reported by theCommittee on the Legislative Department,prohibited any regular session from exceedingsixty days, except the first session called afterthe adoption of the constitution which couldmeet for eighty days. Non-Partisans George V.Smith, Walter Van Dyke, and Jonathan V.Webster, and Workingmen delegate HenryLarkin, preferred that the constitution limit thepay of legislators rather than the length ofsessions. Smith believed that limiting pay tosixty days would keep regular sessions short.More important than economy, short sessionswere desirable because ‘‘the longer theLegislature that is not doing good work is insession the more chance there is for evil.’’Additionally, ‘‘[t]he policy has been in most ofthe states to reduce the time of service.’’ 80

Van Dyke argued that if you limit the time ofthe session the legislature ‘‘would be driven inthe last few days to consider the most importantlegislation,’’ resulting in ‘‘hasty and illconsidered’’ laws. By limiting compensation‘‘you accomplish the whole purpose, and thenlet the terms be continued until the work iscompleted . . . properly and in order.’’ If thelegislature was facing a ‘‘matter of greatimportance,’’ Webster concluded, ‘‘they shouldnot be cut-off from enactment of good laws by aconstitutional provision.’’ But, if you cut theirpay after a specified time, the legislature was‘‘not likely to stay longer than is absolutelynecessary to enact the legislation which isbefore them.’’ 81

David S. Terry and Joseph A. Filcher,Non-Partisan members of the Committee on theLegislative Department, defended the sectionthey had drafted. Filcher stated that the popularreforms demanded were already in the sectionas reported. ‘‘The evil of special legislation isaimed at. The lobby influence is aimed at.’’ Nodelegate had proposed any improvement. Heasked the convention to quit ‘‘trifling’’ with the

section and ‘‘get on to other and more importantbusiness.’’ Workingmen delegate CharlesBeerstecher sarcastically proposed anamendment: ‘‘There shall be no Legislatureconvened from and after the adoption of thisConstitution, in this State, and any person whoshall be guilty of suggesting that a Legislaturebe held, shall be punished as a felon without thebenefit of clergy.’’ The section as amendedlimited the pay rather than the time of regularsessions to sixty days, and increased the (pay)limit of the first session from eighty to 100days.82

During the 1878–79 debate, the belief thatlimiting the legislature would shift excessivepower to the executive resurfaced. Echoing 1849delegate Charles T. Botts’ sentiment that anunassembled legislature leaves only thegovernor, Workingmen delegate Peter J. Joycemistrusted his party’s call for quadrennialsessions. Corrupt corporations advocateabolition of legislatures and ‘‘go in for puttingpower in the hands of the Governors.’’ Thelegislature had passed corrupt bills, but, hewanted to know, ‘‘how many of these corruptbills have ever been vetoed by the Governors ofthis State?’’ Larkin, who preferred annual overquadrennial sessions, said ‘‘[t]he policy of arepublican government’’ was to ‘‘bring therepresentatives a little nearer to the people.’’ Hebelieved in ‘‘bringing the Government as near tothe people as possible.’’ He did not believe in‘‘leaving it to the Governor.’’ 83

Filcher stated that his ‘‘most vital objection’’ tothe proposals of the convention regardinglegislative sessions was ‘‘the idea of so longabsenting the people from those who havepower over them.’’ The convention could notafford to endorse such a policy.

The idea that the administration and theLegislature could come in heresimultaneously and go out together isnot a good one. The administrationwould be absolutely left to itself duringits term. Assuming that the Governorshould become implicated in somenefarious practices, I ask you whatpower there is under such a system to

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reach him? You provide that theGovernor may be impeached, but assoon as the sixty days of the Legislatureare over he is left to himself. One of thebest features of our government is thatthe officers are frequently brought face toface with those whom the people elect toscrutinize their action. The oftener youcan send up persons directly from thepeople, and in this capacity legislatorscome, to look into and examine theaffairs of the State, and confront theofficers enlisted with power by thepeople, the better your government.84

At the special election of October 10, 1911 whichprovided for initiative and referendum, votersratified a constitutional amendment to SectionTwo which provided for bifurcated bienniallegislative sessions. Each session, beginning inJanuary as provided in 1879, commenced inodd-numbered years and continued for thirtycalendar days only. After a mandatory‘‘constitutional recess’’ of not less than thirtycalendar days, both houses of the legislaturereassembled for the second part of the session.The first part of the session was for theintroduction of bills, and only urgency measureswere passed. After the recess the legislatureconsidered the bills presented in January. Nonew bills could be introduced without atwo-thirds vote of both houses. Theconstitutional recess was instituted in order toprovide time for the public to read and analyzemeasures that had been introduced during thefirst thirty days.85

Between 1947 and 1966 the legislature met inannual general and budget sessions. ANovember 5, 1946 constitutional amendment toArticle IV, Section Two switched the legislatureback to annual sessions. General sessionscommenced in the odd-numbered years, andbudget sessions commenced in theeven-numbered years. General sessionsremained bifurcated with a thirty-day billintroduction period, a thirty-day recess,followed by an unspecified period to considerthe bills introduced in January. Budget sessions

convened on the first Monday in March in theeven-numbered years.86

A 1949 constitutional amendment limited thesecond half of the general session to 120calendar days, exclusive of the recess. Theamendment also restricted the budget session tothirty calendar days, consideration of thefollowing fiscal year’s Budget Bill and itsappropriate revenue acts, approval or rejectionof city and county charters and charteramendments, and acts necessary for sessionexpenses.87

A November 6, 1956 constitutional amendmentadded subdivision (c) to Section Two or ArticleIV which changed the meeting date of thebudget session to the first Monday in February.After the Budget Bill was introduced during abudget session, both houses could take athirty-day recess, and then reconvene for asession not to exceed thirty days. Between 1958and 1966, the legislature was able to pass theBudget Bill without reconvening inextraordinary sessions only once in 1960.88

On November 4, 1958 voters ratified Proposition9 (ACA 36), which abolished the constitutionalrecess and limited general sessions to 120calendar days, not including Saturdays andSundays (in effect allowing 166 total days).Proposition 9 also prohibited any bill, other thanthe Budget Bill, to be heard by committee oracted upon until thirty calendar days after itsintroduction, a three-fourths vote of the housenecessary to override the provision. Thethirty-day, bifurcated session initiated in 1911intended that the public have an opportunity toreview bills before they were acted upon. Sincethat time, however, the number of billsintroduced increased, leaving the state printerno time to publish them all for public use.Increasing the session to 120 days allowed theintroduction of bills to be spread out, and theprinter more time to publish.89

The March 1965 Staff Report of the ConstitutionRevision Commission to the ExecutiveCommittee indicates that the Committee wantedto institute two-year legislative sessions, butrecommended annual sessions instead.

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Although lengthy, that portion of the report isreproduced here because it illustrates intent andexplains why the Committee changed its course.

As a result of the State’s growth itsproblems have become so numerous andsubstantial that they should not awaitthe reconvening of the Legislature everytwo years in a session open to generallegislation, or the discretion of theGovernor. With each biennium thespecial or ‘‘extraordinary’’ session whichhas met concurrently with the budgetsession in the even numbered year, thelist of items which the Governorauthorizes the Legislature to considerhas lengthened. Special sessions withpurported ‘‘limited’’ agendas virtuallyhave become ‘‘general’’ sessions, and therevision recognizes that fact.

Based on the procedure in the U. S.Congress, the Alaska, Massachusetts andMichigan Legislatures, among others,there was some sentiment for annual,regular sessions of unlimited duration.Jockeying for favorable position and theever-present log jams of legislationtoward the end of each session would beavoided. However, legislator-members ofthe Commission favored a limitation onsession length. They pointed out thatbased on their experience unlimitedsessions would be politically unsaleablebecause they would require even greatercompensation for legislators than themembers of the public would approveand would require elimination of thelong-standing California tradition of the‘‘citizen-legislator.’’

The Legislature would be established asa continuous body for a two-year periodin the same manner as the United StatesCongress. This will permit legislation yetunconsidered at the end of the firstannual session to carry-over until thenext regular session. Similar procedure isfollowed in the U. S. Congress and in theMichigan Legislature, among others.

Printing costs and time would besaved. . . .

However, the existing provision wasretained following a conference with theGovernor and the members of theExecutive Committee. It is anticipatedthat annual sessions without restrictionas to subject matter of legislation willdiminish the need for specialextraordinary sessions except in genuineemergency situations.90

The final recommendation of the Staff Reportparallels the provision of the constitutionalamendment placed before the voters thefollowing year:

[The new section] replaces subdivisions(a) and (c) of existing Section 2 andprovides for the convening annually of asession of the Legislature limited to 120calendar days (exclusive of Saturdaysand Sundays). At present such a sessionmeets only once every two years in theodd-numbered year. The presentdistinction between regular (‘‘general’’)and regular (‘‘budget’’) sessions has beeneliminated because the latter whichoccurred once a biennium in the evennumbered year, has been abolished.There will be only one type of regularsession; it will be annual and generallegislation may be considered.91

Proposition 1A of November 8, 1966 (ACA 13)repealed Section Two of Article IV andsubstituted it with new Section Three. Althoughthe 1965 Revision Commission might haverecommended the two-year sessions that wehave today, in the end, Proposition 1A did notgo that far.

Sec. 3. (a) The Legislature shall meetannually in regular session at noon onthe Monday after January 1. A measureintroduced at any session may not bedeemed pending before the Legislatureat any other session.

The provision abolished the budget session, andeliminated the 120-day time limit. Convening on

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the first Monday after January 1, the sessionswere of unlimited duration in which any type ofbill could be introduced. After all bills had beendecided on, the legislature recessed for thirtydays, and then reconvened to consider vetoedbills.92

Proposition 4 (ACA 95) ‘‘reorganized’’ theLegislature into two-year sessions. Ratified bythe voters on November 7, 1972, it enacted thechanges originally wanted by the ConstitutionRevision Commission seven years earlier.Proposition 4 amended Section 3 (a) of ArticleIV to its present construction. In theirsupporting argument for the amendment,Assembly Speaker Bob Moretti, AssemblyRepublican Leader Bob Monagan, and SenateRepublican Leader Fred Marler advised votersthat the proposal would ‘‘streamline’’ legislativeoperations. ‘‘It will result in reforms inoperations, greater efficiency, moreresponsiveness to the public and some modestrecurring savings estimated at several hundredthousand dollars.’’ 93

Time Bills Must be in Print

The earliest constitutional reference to theprinting of bills can be found in Article IV,Section Fifteen of the 1879 Constitution. SectionFifteen, as originally reported by the Committeeon the Legislative Department, provided that allbills must be ‘‘read at length’’ on final passage,but the section did not provide for threereadings or printing of bills.

During Committee of the Whole considerationof the section, Workingmen delegates John D.Condon and James S. Reynolds proposedamendments to Section Fifteen which wouldmandate that bills be read ‘‘on three severaldays in each house,’’ and that they be printedwith amendments before passage. Afterencountering opposition from members of theCommittee who drafted the section, Reynoldsdefended the amendments. Every man’sexperience at the convention showed him thenecessity of printing bills. ‘‘It is impossible for amember to understand what he is voting for, or

what the provisions of a bill are, by hearingthem read at the desk.’’ The object ofconsidering a bill ‘‘on three several days, beforebeing put upon its final passage’’ was ‘‘toprevent hasty legislation.’’ The amendmentswere not intended to ‘‘hamper’’ legislation, ‘‘butto compel it to be done decently and in order,after the legislation has been considered.’’Reynolds later added further support to hisargument by showing that at least twenty-onestates had put similar provisions in theirconstitutions.94

In defense of the amendments CharlesBeerstecher noted that hasty legislation hadbeen ‘‘the curse of this State, and the curse ofseveral States in this Union.’’ He could notunderstand the objections to the provision. ‘‘Abill is introduced and kept in the hands of theClerk, and he reads it, and it is put upon itspassage, and no one sees the bill until it isenrolled.’’ Often, ‘‘an entirely different bill isenrolled than the one passed.’’ The section, asamended, was ‘‘a guard put on the Legislature.’’The delegation adopted Section Fifteen, asamended, in Committee of the Whole and in theconvention first and second readings.95

As we have seen, the thirty-day stipulation firstappeared in Section Two of Article IV with theadoption of the Progressive amendments at theOctober 10, 1911 special election. The‘‘constitutional recess’’ of the bifurcatedlegislative sessions was intended to ‘‘give thepublic time to read and analyze measuresintroduced during the first thirty days.’’ SectionFifteen had already provided that bills beprinted after introduction. People had thirtydays to procure a copy of the printed bill andcontact their legislator regarding itsprovisions.96

On November 4, 1958 voters ratified Proposition9 (ACA 36) which amended Article IV, SectionTwo. As discussed above, this amendmentabolished the split legislative session and the‘‘constitutional recess,’’ and extended generalsessions to 120 calendar days, not includingSaturdays and Sundays. Proposition 9 alsomandated that no bill, other than the BudgetBill, could be heard by any committee or acted

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on in either house for thirty calendar daysfollowing introduction.

Writing in favor of the proposition, Assemblymembers Allen Miller, and Charles Conrad, andSenator John F. McCarthy argued that, althoughthe 1911 amendment was well intentioned it hadceased to be functional.

[T]he tremendous increase in legislativeproblems resulting from the rapidgrowth and development of our Statehas caused such a flood of bills that theState Printer is unable to get them intoprint until the end of the recess and thepublic has little time to study them.Further, the split session has led to themass introduction of bills before therecess, which results in little chance towork out details of any proposal. Thismeans that many bills are in skeletal or‘‘spot bill’’ form and convey only thatthe author has in mind someunidentified change in the law on aparticular subject. Such bills mean littleto the public, and must be later amendedand reprinted—all of which istime-consuming and expensive.97

The amendment allowed ninety days for theintroduction of bills, giving legislators time toproperly prepare bills before printing. Saturdaysand Sundays could be used to confer withconstituents and answer public inquiries.Proponents promised voters that the LegislativeCounsel would maintain a ‘‘digest’’ of everymeasure introduced. With the extended billintroduction period, the Legislative Counselcould keep the index and digest current duringthe whole session. ‘‘This would allow you [thevoter] to examine the index and digest at anytime to determine whether legislation you areinterested in has been introduced.’’ Peoplewould have thirty days after introduction todetermine the effect of a bill.98

Although the Constitution RevisionCommission initially wanted to eliminate thethirty-day waiting period in theirrecommendation to the legislature, theysubsequently changed their opinion. The Article

IV ‘‘Staff Report’’ of 1965 described the processwhich led to their final recommendation.

[T]he 30-day waiting period for action onbills after their introduction at regularsessions of the Legislature has beenretained. . . . Initial drafts of Article IVeliminated this restriction because thewaiting period was regarded asineffective against the alleged evil itsought to prevent: lack of notice of thecontent of pending legislation. TheLegislature could waive the 30-day delayby a three-fourths vote, and it did notprevent the use of the ‘‘skeleton’’ bill or‘‘author’s amendments’’ which couldalter the entire bill without subjecting itto further delay. No other stateconstitution contains a similar restrictionon the progress of a bill.

However, the provision was restored onthe advice of legislator-members of theCommission. They pointed out that in1958 the 30-day bill waiting period wassubstituted for the former 30-day recesswhich occurred after the first month ofgeneral session in odd-numbered years.That recess was used for the printing ofthe bills introduced in the first fourweeks of the session; it also allowedvarious groups to review pendinglegislation. Eliminating the 30-day periodwould remove a protection that wasintended to be retained when thebifurcated session itself was abolished.Additionally a proposal to shorten the30-day period to 20 days insofar ascommittee action on legislation wasconcerned was rejected in 1962. TheLeague of California Cities and othersindicated they still needed the full 30days to review legislation and to notify awidely scattered membership of thependency of measures in which they areinterested.99

As recommended by the Constitution RevisionCommission, Proposition 1A (ACA 13) ofNovember 8, 1966 repealed Section Two ofArticle IV and transferred that portion of

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subdivision (a) (containing the thirty-daystipulation) to Section Eight, subdivision (a).The language went largely unchanged, exceptfor modernizing phraseology. The 1879 SectionFifteen providing for three separate readingsand printing of bills substantially became newSection Eight, subdivision (b). Subdivisions (a)and (b) of Section Eight have not been amendedsince that time.

Retirement System

The current constitutional provision whichrestricts legislative retirement entitlements(Article IV, Section 4.5) is less than five years old(November 6, 1990). Enactments governinglegislative retirement have been largelystatutory, and they have originated relativelyrecently (approximately 1947). Discussionconcerning the issue of legislative retirementhas developed only in the recent past. But, if theissue is approached from the question shouldlegislative service be considered a careeroccupation?, debate can be traced to the 1849constitution.

There are no specific references to legislativeretirement in the 1849 or 1879 constitutions. The1849 framers provided for per diem andtravelling expenses of legislators andconstitutional officers only temporarily, until thefirst legislature could establish salaries bystatute (Article XIII, Schedule, Section Fifteen).When the Committee on the Constitutionreported the section, they left the dollar figuresblank so that the convention could determinethe amounts in Committee of the Whole. Manydelegates supported a fairly high figure. Theduties of government officers were ‘‘onerous,’’and ‘‘high salaries would command therequisite talent.’’ The cost of living in theinflationary environment of gold rush Californiawas astronomical. The people would sanctionhigh salaries.100

Delegate William M. Gwin argued that if theydid not establish low salaries the expenses ofgovernment would be enormous and oppressiveto the tax payers. He said, ‘‘I have never known

an office of honor in the United States where theincumbent makes anything out of it, or evensustains himself upon the salary.’’ Charles T.Botts, who inferred that Gwin waselectioneering with a popular issue (lowsalaries), responded: ‘‘there are honorable placeswhich are kept for the rich of the land, and . . . apoor man cannot afford to accept them.’’ A lowsalary ‘‘requires a man of other means to acceptan office which will not of itself sustain him.’’The Governor of the state ‘‘could not sustainhimself on $6,000 a year,’’ but if he was ‘‘worthmillions’’ he could ‘‘hold the highest office ofstate in the gift of the people.’’ 101

In all new governments, Gwin retorted,expenditures usually surpass revenues. He didnot wish to reserve public office to rich men, butimmoderate salaries led to expensivegovernment and ‘‘burdensome taxes on thepeople.’’ The provisions were only temporary,and many ‘‘competent men’’ were ‘‘ready andable’’ to occupy the offices already. If thesalaries were too low the legislature couldincrease them later. ‘‘I do not desire to fix thesalaries below what is proper,’’ Gwin concluded,‘‘nor do I wish to make a political hobby inconnection with this matter.’’ 102

For legislators, the convention settled on thesame pay they had fixed forthemselves—sixteen dollars per diem, andsixteen dollars for every twenty miles travelled.Compared to Iowa’s two dollars per diem andtwo dollars per twenty miles, and New York’sthree dollars per diem and one dollar per tenmiles, California’s allowance seems extravagant.When fixing their own compensation, however,the delegates settled on a moderate sixteendollars, the average daily earnings of a‘‘mechanic’’ in the inflated Californiaeconomy.103

In 1849 public office was not considered to bean occupation. Serving as an elected official wasan honor. Political office brought status andinfluence to a man, but it also carried greatresponsibility, and frequently, a strain onpersonal resources. It was an honor and a dutyto serve, but the service was not a primarymeans of support. The sentiment of the age is

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probably best reflected in delegate RobertSemple’s observation regarding annuallegislative sessions. It would be ‘‘impossible tokeep members of the Legislature more than twoor three months at the seat of Government.’’Legislators would have their privateoccupations to tend to. ‘‘The rapid progress ofaffairs in this country, and the great value oftime would render a longer sessionimpracticable.’’ 104

The 1879 debate indicates that political officewas still not considered to be occupational. Perdiem and mileage was to be left to thelegislature to decide, but was not to exceedeight dollars per day, ten cents per mile, andtwenty-five dollars for contingent expenses persession (Article IV, Section Twenty-Three).Committee of the Whole debate focused onsetting the salary high enough to attract theproper talent, and to support a respectablelifestyle in Sacramento, away from home,family, and business. When settingcompensation limits, delegates were lessconcerned with per diem and mileage than withrecent abuses of contingent expense funds.

The debates indicate that a propensity towardscareer politics had begun to develop in thenation, but the delegates who spoke of itattached dishonor to the trend. DuringCommittee of the Whole debate on sessions ofthe legislature, Workingmen delegate William F.White explained why he supported quadrennialsessions:

I find in the old State of Pennsylvaniathey are tired of these political bodiesmeeting. The young men of the countryare turning into politicians as a business.If there was but one session in four yearsthese men would die out between thefour years and be obliged to go at somehonest employment. All the young menare looking to politics as a means oflivelihood. I would rather that one of mysons would carry a hod for a living thanto take the best office in the gift of thisState. Therefore, I would like to seesomething done to check this officehunting.105

Political office was an honor and a duty, a ‘‘gift’’of the people or of the state. It was not anoccupation.

Until the 1966 revision of Article IV, theconstitution had provided that the Legislatureset its own compensation by statute, but theconstitution had stipulated a ceiling. Any raisebeyond that ceiling required a popularlyapproved constitutional amendment. By 1924,Section Twenty-Three of Article IV limitedlegislative salaries to $100. a month(substantially lower than 1879’s eight dollar perdiem if they worked twenty days per month).In 1949 legislative salaries were raised to$300. a month. By 1954, subdivision (b) ofSection Two, Article IV set legislative salariesat $500. a month. That figure held until the 1966revision.106

Voters had approved a constitutionalamendment which directed the Legislature toprovide a retirement plan for state employees asearly as 1930 (Article IV, Section 22a addedNovember 4, 1930). The following year, theLegislature established by statute a StateEmployees Retirement System for California(Statutes, 1931, Chapter 700, p. 1442). In 1939 theLegislature extended the scope of the StateEmployees Retirement Law to include city,county, and school district employees whowished to participate (Statutes, 1939, Chapter954). Developing in the statutes and outside thestrictures of the constitution, by 1947 theLegislature had established a retirement systemfor its own members (Government Code Section9359 et. seq.).

On November 4, 1958, voters rejectedProposition Five, a Senate ConstitutionalAmendment which would have allowed theLegislature to fix legislator’s salaries at anamount not to exceed ‘‘the average salary ofcounty supervisors in the five most populouscounties’’ (approximately $10,080. in 1958).Supporting the amendment, State Senator JamesA. Cobey argued that public officer’s salaries,subject to constant review, did not belong in theconstitution. Every change requiredconstitutional amendment. A majority of states,the United States Congress, and the Model

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Constitution of the National Municipal League,provided for legislative salaries by statute ratherthan by constitutional provision. The JointLegislative Committee on Legislative Procedure,California Conference on State Government,Committee on American Legislatures of theAmerican Political Science Association, and the1957 California Citizens Legislative AdvisoryCommission supported the amendment.107

The arguments of State Senator John A. Murdy,Jr., who wrote against Proposition Five, reflectedthe seriousness of the reapportionment issue in1958. He also provided a contemporary opinionof legislative retirement benefits. Malappor-tioned districts caused pay inequities. A senatorrepresenting over five million people in LosAngeles County had a much larger work loadthan a senator representing a smaller county of100,000 people, but both senators made thesame salary. Conversely, it was more difficult foran Assembly Member to cover a sparselypopulated rural district than an urban area.Additionally, the Legislature determined thesalaries of supervisors, ‘‘directly or indirectly,’’in the five biggest counties, excepting SanFrancisco which was regulated by charter.108

Higher pay, asserted Murdy, Jr., would have a‘‘great liberalizing impact’’ on the ‘‘alreadygenerous legislative retirement system.’’

The present terms of the StateRetirement System permits a Legislatorto retire at 75% of his salary if he hashad fifteen years of service and hasreached sixty-three or over. This sameretirement formula would apply on anyincreased salary, not only to Legislatorsretiring in the future, but would beretroactive to those who have alreadyretired.

Extended to public officers, provisions of theState Retirement System appear to indicatecountenance of legislative careers. The defeat ofProposition Five may show, however, thatpopular disapproval of political occupationprevailed, keeping legislative office less thanlucrative. Or perhaps Senator Murdy, Jr.reflected popular sentiment when he

commented ‘‘Whether it is possible to buystatesmanship by offering salary inducement isstill an unsolved problem.’’ 109

In 1966, California voters passed Proposition 1A(ACA 13), which removed constitutionalprovisions for legislative compensation andmade them statutory in 1966. The 1965 report ofthe Constitution Revision Commission, whichrecommended this legislative course of action,provides an important analysis of thepost-reapportionment compensation/ retirementissue.

Since 1954 as each of numerous attemptsto increase salaries has failed, theCalifornia legislators have found othermeans of increasing both theirperquisites (by way of perdiem andmileage or state-leased automobiles anda generous pension plan geared to thecost of living index) and their efficiency(by way of staff assistance and similaraids) until it is now possible for:

(1) A legislator to retire after 30 years ofservice and receive more inretirement than the constitutionallystipulated salary he received as anincumbent; and

(2) The press to estimate—in howevermisleading a manner—that a singlelegislator may have the equivalent of$25,000 in state funds for hisindividual use in any odd-numberedyear (including salary, per diem,mileage . . . or leased automobileand credit card, district officeallotment, postage, secretarialassistance, and telephone). (Theimplication frequently conveyed isthat the legislators pocket this entireamount . . . . For the most part thelatter items reimburse the legislatorfor his out-of-pocket expenses; thecost of living in the capital during asession is high).

To the unthinking voter these figures areappalling—made no less appealing byattempts to misrepresent them. The

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present impasse on legislators’compensation has been characterized asfollows:

‘‘That the citizen of California should beso stubbornly resistive to adequate payfor a man who copes with the problemsof a three billion dollar budget and theintricacies of the technical legislationessential to the largest state in the nationis equally dismaying to the legislator . . .Thus fringe benefit begets salarystalemate and voter opposition tolegislative carte blanche begetsfringe.’’ 110

The Commission then proposed an ‘‘open,rational approach to legislators compensation:’’

(1) A substantial increase in salarycommensurate with the legislator’sstatus as a member of the third andcoequal branch of government withthe executive and judiciaryrecognizing that the job of legislatoris in fact virtually full-time; and

(2) A program of constitutional andstatutory restraints on legislativeself-indulgence as to perquisitesother than annual salary.

Only with the adoption of acompensation program outlined abovewill the California legislator be able tojustify to the public at election time thathe is worthy of his hire and thus open anew era of mutual respect between theCalifornia citizen and his Sacramentorepresentative that both deserves.111

By 1965, the commission asserted, twenty-eight

states had legislative compensation rates set bystatute, without constitutional limitation. TheUnited States Congress had always enjoyed thatprivilege. When was California to join the fold?Echoing the sentiments and fears of theconstitution’s framers, the commissionconcluded:

If the Legislature is to meet annually forapproximately six months, it will benecessary to compensate the Membersadequately to permit them to be awayfrom their usual occupations. While theCalifornia voter has been conditioned tothe concept of the ‘‘citizen-legislator’’over the years, membership in the Senateand Assembly, with each biennium, isbecoming more than a part-timevocation.112

Proposition 112 of June 5, 1990 (SCA 32)repealed the 1966 legislative compensation andretirement statute (Chapter 163) that ratificationof Proposition 1A had authorized (Ch. 163,Statutes, 1966, 1st Extraordinary Session, pp.721–29). Five months later, initiativeconstitutional amendment Proposition 140(Term Limits) limited legislative salaries andoperating expenses, and restricted legislativeretirement benefits by constitutional provision.In 1965 the Constitution Revision Commissionasserted that membership in the Legislature wasbecoming ‘‘more than a part-time vocation.’’Twenty-five years later, however, a popularinitiative amended the constitution to assert that‘‘service in the Legislature’’ was ‘‘not . . .intended as a career occupation.’’ Section 4.5 ofArticle IV today prohibits the Legislature fromaccruing more pension and retirement benefitsthan are already provided by statute.

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THE INITIATIVE PROCESSThe great legacy of the Progressive ReformMovement in California, Senate ConstitutionalAmendment No. 22, passed in the Senate onFebruary 9, 1911 by a vote of thirty-five to one,Senator Leroy A. Wright of San Diego castingthe only dissenting vote. On February 16, theAssembly passed the amendment withseventy-two votes in favor and no dissentingvotes. Placed before the voters at a specialelection called by Progressive Governor HiramJohnson on October 10, 1911, the people ratifiedthe Initiative, Referendum, and Recallconstitutional amendment by a vote of 168,744to 52,093 (see endnote 15).

Since the addition of the Initiative andReferendum to the Constitution in 1911 (ArticleIV, Section One, 1 (a), (b), (c), (d)), the provisionhas gone through two constitutional revisions.Following the recommendations of theConstitutional Revision Commission in 1965, thelegislature placed Proposition 1A (ACA 13) onthe November 8, 1966 ballot. The popularlyratified amendment which revised theLegislative Article IV, repealed the 1911 SectionOne and subdivisions (a), (b), (c), and (d), andrelocated them to the end of Article IV,commencing with Section Twenty-Two (a) andcontinuing through Section 26 (see endnote 72).

On June 8, 1976, voters ratified Proposition 14(ACA 40). The amendment reorganizedprovisions related to voting, the initiative,referendum, and recall, which were ‘‘scatteredthroughout the Constitution,’’ under a singlearticle. As a result, current Article II—titledVoting, Initiative and Referendum, andRecall—contains the original 1911 amendment,fairly intact, except for modernized phraseologyand simplified structure.113

Constitutional Amendments/Ballot

The language of current subdivision (c) ofSection Eight, Article II has not substantiallychanged.

1911, Article IV, Section One (paragraph two,sentence two, sixth clause):

the Secretary of State shall submit thesaid proposed law or amendment to theConstitution to the electors at the nextsucceeding general election occurringsubsequent to 130 days after thepresentation aforesaid of said petition, orat any special election called by theGovernor in his discretion prior to suchgeneral election.

1966, Article IV, Section Twenty-Two,subdivision (c):

The Secretary of State shall then submitthe measure at the next general electionheld at least 131 days after it qualifies orat any special statewide election heldprior to that general election. TheGovernor may call a special statewideelection for the measure.

Constitution Revision Commission Draft Report,1965 Comments:

a new procedural section replacingvarious similar provisions in existingSection 1 dealing specially with eachtype of initiative petition. The Secretaryof State must submit initiative statutes orconstitutional amendments at special orgeneral elections; the Governor may callspecial elections for this purpose.Existing language requires submission ofpending initiative measures at anyspecial election called for placingmeasures proposed by the Legislaturebefore the electorate. Legislative Counselindicated the provision was unnecessarybecause section requires that theSecretary of State present any pendingmeasures to the electorate at the nextsucceeding election whether it be specialor general, called by the Legislature orby the Governor. Legislative CounselOpinion No. 6865, Aug. 27, 1964.114

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1976, Article II, Section Eight, subdivision (c):

[unchanged from 1966]

The primary election, established in 1909, was ineffect at the time that the Progressives draftedthe amendment in 1911. They used only theterms ‘‘general’’ or ‘‘special’’ when referring toan election. General elections are those held inNovember.

Amending Statutory Initiatives

The language of current subdivision (c) ofSection Ten, Article II has changed principally tomodernize phraseology and simplify structure.1911, Article IV, Section One, (paragraph six,sentence two)

No act, law, or amendment to theConstitution, initiated or adopted by thepeople, shall be subject to the vetopower of the Governor, and no act, lawor amendment to the Constitution,adopted by the people at the polls underthe initiative provisions of this section,shall be amended or repealed except bya vote of the electors, unless otherwiseprovided in said initiative measure; butacts and laws adopted by the peopleunder the referendum provisions of thissection may be amended by theLegislature at any subsequent sessionthereof.

1946, Article IV, Section One, subdivision (b)

Laws may be enacted by the Legislatureto amend of repeal any act adopted byvote of the people under the initiative; tobecome effective only when submitted toand approved by the electors unless theinitiative act affected permits theamendment or the repeal without suchapproval. The Legislature shall by lawprescribe the method and manner ofsubmitting such a proposal to theelectors.

1966, Article IV, Section Twenty-Four,subdivision (c)

The Legislature may amend or repealreferendum statutes. It may amend orrepeal an initiative statute by anotherstatute that becomes effective only whenapproved by the electors unless theinitiative statute permits amendment orrepeal without their approval.

Constitution Revision Commission Draft Report,1965 Comments:

consolidates portions of the sixthparagraph of existing Section 1 withexisting Section 1b. No substantivechange has been made; language hasbeen simplified and phraseologyimproved. The last sentence of existingsection 1b is unnecessary in view ofproposed subdivision and has beendeleted. Section 1b was added to theConstitution in 1946 to eliminate anyquestion as to the power of theLegislature to propose to the people anamendment to a statute adopted underthe initiative process.115

1976, Article II, Section Ten, subdivision (c)

[unchanged from 1966]

Legislative Review of Initiatives

There is no applicable current constitutionalreference to legislative review of initiativeconstitutional amendments or initiative statutes.(Legislative enactment of initiative statutes andconstitutional amendments seems contradictorysince initiatives are the popular equivalent ofstatutes and constitutional amendments whichoriginate in the legislature). The closestreference to legislative review of popularinitiatives can be found in the ‘‘indirectinitiative.’’

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The Progressives provided for two initiativeprocesses in the 1911 constitutional amendment:the direct initiative and the indirect initiative.The direct initiative is in use today, but, for lackof use, the Constitution Revision Commissionrecommended that the indirect initiative beabolished in 1965. Proposition 1A (ACA 13),ratified by the voters on November 8, 1966repealed the indirect initiative provision (ArticleIV, Section One, paragraph three).

Using the indirect initiative, voters couldpropose legislation to the legislature. Qualifyingpetitions had to contain signatures of registeredvoters equal to five percent of the votes cast forGovernor at the last general election. TheSecretary of State sent the petition to thelegislature, which had forty days to either enactor reject the unchanged initiative, or amend it. Ifthe Legislature approved the proposal withoutamendment, it became law. If the Legislaturedid not approve the proposal withoutamendment, or if the Legislature rejected it, theSecretary of State had to submit it to the votersat the next general election. The indirectinitiative also provided for competing legislativeenactments on the same subject.

The text of the indirect initiative as originallydrafted and ratified in 1911 follows (note theprovision for legislative competing enactmentsin the section):

Upon the presentation to the Secretary ofState, at any time not less than 10 daysbefore the commencement of any regularsession of the Legislature, of a petitioncertified as herein provided to have beensigned by qualified electors of the Stateequal in number to 5 per cent of all thevotes cast for all candidates for Governorat the last preceding general election, atwhich a Governor was elected,proposing a law set forth in full in saidpetition, the Secretary of State shalltransmit the same to the Legislature assoon as it convenes and organizes. Thelaw proposed by such petition shall beeither enacted or rejected without changeor amendment by the Legislature, within40 days from the time it is received by

the Legislature. If any law proposed bysuch petition shall be enacted by theLegislature it shall be subject toreferendum, as hereinafter provided. Ifany law so petitioned for be rejected, orif no action is taken upon it by theLegislature within said 40 days, theSecretary of State shall submit it to thepeople for approval or rejection at thenext ensuing general election.

The Legislature may reject any measureso proposed by initiative petition andpropose a different one on the samesubject by a yea and nay vote uponseparate roll call, and in such event bothmeasures shall be submitted by theSecretary of State to the electors forapproval or rejection at the next ensuinggeneral election or at a prior specialelection called by the Governor, in hisdiscretion, for such purpose. All saidinitiative petitions last above describedshall have printed in 12-point black-facetype the following: ‘‘Initiative measure tobe presented to the Legislature.’’

In its 1965 Draft Report, the ConstitutionRevision Commission succinctly explained whyit recommended repeal of the indirect initiative:

Because the percentage of signaturesrequired for proposing an initiativestatute has been reduced and becausethere have been but four instances wherean indirect initiative—that is, a petitionto the Legislature, not to the people—hasbeen utilized (and only oncesuccessfully), the Commissionrecommends repeal of the indirectinitiative procedure.116

It is perhaps applicable to this inquiry to notethat the Constitution Revision Commission hadconsidered insertion of some provision forjudicial review of initiatives and referendums inthe constitutional amendment of 1966, butdecided not to proceed. Commission commentfollows:

Inclusion of a provision for judicialreview of the initiative (or referendum)

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petition or ballot title and summary wasconsidered. It is not necessary to includesuch a provision because an electoralready has that right. LegislativeCounsel Opinion No. 6863, Sept. 14,1964. Also it is inadvisable to stipulatethe standard of accuracy or impartialityfor the petition or ballot title and

summary. The required standard shouldbe left to the courts in the event anelector petitions for review of eitheritem. Additionally, any requirement thatthe ballot title and summary be identicalwith that appearing on the petitionshould be added to the ElectionsCode.117

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ENDNOTES

State Governance1 J. Ross Browne, Report of the Debates in the Convention of California on the Formation of the State

Constitution in September and October, 1849, Reprint Edition (New York: Arno Press, 1973), Appendix,‘‘The Constitution of the State of California,’’ pp. iii–xiii 7,300 words]; Alonzo L. Baker, Problems in StateConstitution Revision, with Special Reference to California (Stockton: University of the Pacific, 1964), p. 1; E.Dotson Wilson, Chief Clerk of the Assembly, California’s Legislature, 1994 (Sacramento: California StateAssembly, 1994), pp. 11, footnote 21, 13.

2 Regarding the application of English common law in United States territories and possessions see WilliamQ. De Funiak and Michael J. Vaughn, Principles of Community Property, 2nd Ed. (Tucson: University ofArizona Press, 1971), p. 56; First-hand accounts of government in pre-statehood California are related inGovernor-General Bennet Riley’s ‘‘Proclamation Recommending the Formation of a State Constitution, or aPlan of a Territorial Government, June 3, 1849,’’ William M. Gwin, John C. Fremont, George W. Wright, andEdward Gilbert, California Representatives to Congress, ‘‘Memorial to the Honorable the Senate and Houseof Representatives of the United States of America in Congress Assembled, March 12, 1850,’’ and J. Halleck,Attorney at Law, and W. E. P. Hartnell, Government Translator, ‘‘Translation and Digest of such portions ofthe Mexican Laws of March 29th and May 23rd, 1837, as are supposed to be still in force and adapted to thepresent condition of California,’’ in Browne, Report of the Debates, 1849, pp. 3–5, xiv–xxiii, and xxiv–xl;Regarding the civil law system in Mexican California see David J. Langum, Law and Community on theMexican California Frontier: Anglo-American Expatriates and the Clash of Legal Traditions, 1821–1846(Norman: University of Oklahoma Press, 1987).

3 Kenneth M. Stamp, ‘‘Expansion and Sectional Crisis,’’ The National Experience: A History of the UnitedStates to 1877, Vol. 1, 3rd Ed. (New York: Harcourt Brace Jovanovich, Inc., 1973), pp. 276–80; Browne, Reportof the Debates, 1849, Appendix, ‘‘Constitution of the State of California,’’ Article XIII, Schedule, Sections 6,7, 8, p. xii.

4 Ibid.

5 Browne, Report of the Debates, 1849 , ‘‘book of constitutions,’’ pp. 36, 299; prominent delegate William M.Gwin said that he ‘‘had selected the Constitution of Iowa, because it was one of the latest and the shortest,’’p. 24; an explanation for the popularity of New York’s 1846 constitution may be that New York was thenative state of the largest number of delegates (eleven); California claimed the next highest number (seven),pp. 478–79; Regarding the influence of other state constitutions in individual articles of California’s 1849constitution see Cardinal Goodwin, The Establishment of State Government in California (New York: TheMacMillan Company, 1914), pp. 238–40.

6 C. Vann Woodward, ‘‘The Urban Society,’’ The National Experience Vol. 2, p. 444; Alan Kifer, ‘‘Depression,’’and John Mack Farager, ‘‘Immigration,’’ The Encyclopedic Dictionary of American History, 4th Ed., JohnMack Farager, ed. (Guilford, Connecticut: Dushkin Publishing Group, Inc., 1991), pp. 75, 136–37.

7 For a discussion of the ascendancy of the GOP, the ‘‘Republican blueprint’’ for a ‘‘national state,’’ and theestablishment of corporate America see David M. Emmons, ‘‘Constructed Province: History and the Makingof the Last American West,’’ Western Historical Quarterly 25-4 (Winter 1994): 437–59, esp. 443–46.

8 Willie Lee Rose, ‘‘The Aftermath of War,’’ The National Experience Vol. 2, pp. 373–74, 376, Implicated inCredit Mobilier, which cost the federal treasury $23 million, were Vice President Schuyler Colfax and futurePresident James A. Garfield; reporters exposed Secretary of War William W. Belknap, Secretary of theTreasury Benjamin Bristow, and three other members of President Grant’s cabinet as part of the WhiskeyRing; ‘‘Boss’’ William Marcy Tweed of Tammany Hall, who had controlled the governor and statelegislature with bribes, bilked New York City of $200 million. Regarding corruption in the territories seePatricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past of the American West (New York: W.W. Norton & Company, 1987), pp. 84–85.

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9 Charles Kettleborough, ed., The State Constitutions and the Federal Constitution and Organic Laws of theTerritories and Other Colonial Dependencies of the United States of America (Indianapolis: B. F. Bowen &Company, 1918), pp. 12–1554; For a contemporary discussion of late nineteenth-century state constitutionalrevision see Simeon E. Baldwin, Modern Political Institutions (Boston: Little, Brown, and Company, 1898),pp. 45–79.

10 Wilson, California’s Legislature, 1994, footnote 21, p. 11; Baker, Problems in State Constitution Revision, p. 1.

11 Carl Brent Swisher, Motivation and Political Technique in the California Constitutional Convention, 1878–79Reprint Edition (New York: Da Capo Press, 1969), pp. 112–14.

12 Ibid., 114.

13 C. Van Woodward, ‘‘Political Stalemate and Agrarian Revolt,’’ The National Experience Vol. 2, pp. 481–84;John M. Blum and Arthur M. Schlesinger, Jr., ‘‘Theodore Roosevelt and the Progressive Movement,’’The National Experience Vol. 2, p. 511.

14 Blum and Schlesinger, ‘‘Theodore Roosevelt and the Progressive Movement,’’ pp. 511–24.

15 March Fong Eu, Secretary of State, A History of the California Initiative Process (Sacramento: Secretary ofState, Elections Division, November 1992), p. 2; Larry N. Gerston and Terry Christensen, California Politicsand Government: A Practical Approach 3rd ed. (Belmont: Wadsworth Publishing Company, 1995), p. 12;California Legislature, Journal of the Senate, 1911, pp. 747–48; California Legislature, Journal of theAssembly, 1911, pp. 834–38.

16 Wilson, California’s Legislature, 1994, p. 13; Baker, Problems in State Constitution Revision, p. 1.

17 Dean E. McHenry, ‘‘Legislative Problems No. 13,’’ Bureau of Public Administration, University of California,Berkeley, Samuel C. May, Director, December 15, 1934, pp. 4, 8.

18 Ibid., 8–10; Baker, Problems in State Constitution Revision, p. 3.

19 Baker, Problems in State Constitution Revision, p. 3.

20 Ibid., 4.

21 Frank P. Grad, The Drafting of State Constitutions: Working Papers for a Manual (New York: NationalMunicipal League, 1967), p. ii, As stated in the ‘‘forward,’’ the National Municipal League decided topublish their working papers (co-authored by the Legislative Drafting Research Fund of ColumbiaUniversity, State Constitutional Studies Program in 1963) in their original form because of ‘‘the currentinterest in the subject.’’ The 1967 publication was particularly timely ‘‘because of the number of stateconstitutional conventions under way or about to get under way.’’

22 Baker, Problems in State Constitution Revision, p. 5; McHenry, ‘‘Legislative Problems No. 13,’’ p. 9.

23 Baker, Problems in State Constitution Revision, pp. 5–12.

24 Ibid.; Gerston and Christensen, California Politics and Government, p. 43.

25 Robert Desty, The Constitution of the State of California Adopted in 1879, with References to SimilarProvisions in the Constitutions of Other States . . . to Which is Prefixed . . . a Parallel Arrangement of theConstitutions of 1863 and 1879 (San Francisco: Sumner Whitney & Co., 1879), pp. 70–71; Constitution of1849, Article IV, Legislative Department, Sections 28, 29, Constitution of 1879, Article IV, LegislativeDepartment, Section Six.

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26 David Hornbeck, California Patterns: A Geographical and Historical Atlas (Mountainview: MayfieldPublishing Company, 1983), Appendix A ‘‘Population of California Counties, 1850–1980,’’ p. 95; Baker,Problems in State Constitution Revision, pp. 10, 12.

27 Wilson, California’s Legislature, 1994, pp. 72–73.

28 Gerston and Christensen, California Politics and Government, p. 43.

29 Constitution Revision Commission, Working Papers, California State Archives, Sacramento, California,Finding Aid, p. 1; Wilson, California’s Legislature, 1994, p. 14.

30 Constitution Revision Commission, Working Papers, Finding Aid, p. 7; Wilson, California’s Legislature, pp.14–16.

31 Constitution Revision Commission, Working Papers, Finding Aid, pp. 11–12; Wilson, California’sLegislature, 1994, p. 16.

32 Baker, Problems in State Constitution Revision, p. 4; Wilson, California’s Legislature, 1994, p. 13.

33 Browne, Report of the Debates, pp. 161, 342, 458.

34 E. B. Willis and P. K. Stockton, Debates and Proceedings of the Constitutional Convention of the State ofCalifornia, Convened at the City of Sacramento, Saturday, September 28, 1878, Vol. 1, 2, 3 (Sacramento: StatePrinting Office, 1880), pp. 271–72, 289, 1198–99, 1426–27.

35 Constitution Revision Commission, Working Papers, Article V Executive Powers Committee Report,1965–66, ‘‘Articles V, VII, and VIII, Summary of Recommendations,’’ draft, n.p.n.

36 Ibid.

37 Ibid.

38 Secretary of State, Elections, Ballot Arguments, November 8, 1966, Part II, p. 16, California State Archives,Sacramento, California; Wilson, California’s Legislature, 1994, p. 14.

39 Secretary of State, Elections, Ballot Arguments, November 5, 1974, pp. 41, 87.

40 Wilson, California’s Legislature, 1994, Appendix C, ‘‘Governors of California, 1849–1994,’’ ‘‘LieutenantGovernors of California, 1849–1994,’’ pp. 193–94.

41 Gerston and Christensen, California Politics and Government, pp. 11–30, 72.

42 Browne, Report of the Debates, pp. 202–03, 346, 458.

43 Willis and Stockton, Debates and Proceedings, pp. 1091–97.

44 Ibid.

45 Ibid.

46 Ibid., 1107–09.

47 Ibid., 1400–01.

48 Ibid., 1474–76.

49 Constitution Revision Commission, Working Papers, Article IX Committee Report, ‘‘Proposition 1, ArticleIX: Summary of Proposed Revision,’’ pp. V-1, V-2; California State Archives, Constitution RevisionCommission, Working Papers, Finding Aid, p. 11.

50 Secretary of State, Elections, Ballot Arguments, June 2, 1970 Primary Election, pp. 15–17, 26.

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51 Ibid., November 8, 1988 election, pp. 99, 140.

52 David Lavender, California: A Land of New Beginnings (Lincoln: University of Nebraska Press, 1972), p.424.

53 Constitution Revision Commission, Working Papers, Article V Executive Powers Committee Report,1965–66, n.p.n.

54 Secretary of State, Elections, Ballot Arguments, November 8, 1966 Election, Part 2, p. 16.

55 Willis and Stockton, Debates and Proceedings, pp. 924–40; See the account of the battle between the BOEand the railroad in Kern County told by George V. Smith of Bakersfield, pp. 926–27, or of another encounterwith Miller & Lux in Monterey County told by Nathaniel G. Wyatt, p. 921. The BOE lost both cases.

56 Elsey Hurt, California State Government: An Outline of Its Administrative Organization From 1850 to 1936Vol. 2 (Sacramento: Supervisor of Documents, 1936), p. 45.

57 Ibid., 46.

58 Secretary of State, Elections, Ballot Arguments, November 6, 1934, p. 12.

59 Constitution Revision Commission, Working Papers, Article XXIV Reports, January, 1965, ‘‘ProgressReport,’’ p. 1.

60 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York:New American Library, 1961), pp. 378–79.

61 Ibid., 379–80; California Legislature, Assembly, Constitution of the United States . . . Articles ofConfederation . . .Constitution of the State of California (Sacramento: Assembly, 1993), ‘‘Articles ofConfederation—1778,’’ Article V, p. 25.

62 Hamilton, Madison, and Jay, The Federalist Papers, pp. 380–81.

63 Ibid., 381.

64 Ibid., 382.

65 Browne, Report of the Debates, 1849, p. 33.

66 David W. Brady and Brian J. Gaines, ‘‘A House Discarded? Evaluating the Case for a Unicameral CaliforniaLegislature.’’ [prepared for California Constitution Revision Commission?], n.d.

67 Ibid., 4, footnote 6, 5; Following Brady and Gaines selection of urban counties, 1910 and 1920 populationtotals for the north include San Francisco, San Mateo, Santa Clara, Alameda, Contra Costa, and Marincounties; for the south, Imperial, San Diego, Riverside, Orange, San Bernadino, Los Angeles, Ventura, andSanta Barbara counties. County and state totals taken from Hornbeck, California Patterns, Appendix A,‘‘Population of California Counties, 1850–1980,’’ pp. 94–95.

68 Brady and Gaines, ‘‘A House Discarded?,’’ pp. 5–6.

69 Ibid., 7.

70 Ibid., 7–8.

71 Constitution Revision Commission, Working Papers, Article IV, Report, 1965, ‘‘Staff Draft No. 1,’’ p. 1.

72 Secretary of State, Election Division, Ballot Arguments, November 8, 1966 Election, Part 2, pp. 10–11, 13–14.

73 Browne, Report of the Debates, 1849, pp. 76–82.

74 Ibid.

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75 Ibid.

76 Ibid.

77 Ibid., 309–11.

78 Winfield J. Davis, History of Political Conventions in California, 1849–1892 (Sacramento: California StateLibrary, 1893), p. 386; Willis and Stockton, Debates and Proceedings, pp. 742–43.

79 Willis and Stockton, Debates and Proceedings, pp. 742–43.

80 Ibid., 742–45.

81 Ibid.

82 Ibid.

83 Ibid., 742–43.

84 Ibid., 744.

85 Wilson, California’s Legislature, 1994, pp. 61–62; Secretary of State, Elections Division, Ballot Arguments,November 4, 1958 Election, p. 13.

86 Wilson, California’s Legislature, 1994, pp. 62–63.

87 Ibid.

88 Ibid., 63.

89 Ibid., 62; Secretary of State, Elections Division, Ballot Arguments, November 4, 1958 Election, p. 13.

90 Constitution Revision Commission, Working Papers, Article IV Report, 1965, ‘‘Staff Draft No. 1,’’ pp. 3–4.

91 Ibid., 2.

92 Secretary of State, Elections Division, Ballot Arguments, November 8, 1966 Election, Part 2, pp. 4, 11;Wilson, California’s Legislature, 1994, p. 63.

93 Secretary of State, Elections Division, Ballot Arguments, November 7, 1972 Election, Pt. 1, p. 12, Pt. 2, p. 4.

94 Willis and Stockton, Debates and Proceedings, p. 777, 779.

95 Ibid., 779.

96 Wilson, California’s Legislature, 1994, pp. 61–62; Secretary of State, Elections Division, Ballot Arguments,November 4, 1958 Election, p. 13.

97 Secretary of State, Elections Division, Ballot Arguments, November 4, 1958 Election, p. 13.

98 Ibid.

99 Constitution Revision Commission, Working Papers, Article IV Report, ‘‘Staff Draft No. 1,’’ 1965, pp. 9–10.

100 Browne, Report of the Debates, 1849, see comments of delegates Stewart, Shannon, and McCarver, pp.400–01.

101 Ibid., 401–02.

102 Ibid., 402.

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103 Constitution of Iowa, 1846, Article IV, Section 25, Constitution of New York, 1846, Article III, Section 6 inCongress, Constitutions of the Several States, (1852), pp. 149, 510.

104 Browne, Report of the Debates, 1849, p. 76.

105 Willis and Stockton, Debates and Proceedings, p. 742.

106 Secretary of State, Elections Division, Ballot Arguments, November 4, 1958 Election, p. 7.

107 Ibid.

108 Ibid., 8.

109 Ibid.

110 Constitution Revision Commission, Working Papers, Article IV Report, ‘‘Staff Draft No. 1,’’ 1965, p 6.

111 Ibid., 7.112 Ibid., 5.

113 Secretary of State, Elections Division, Ballot Arguments, June 8, 1976 Election, p. 58.

114 Constitution Revision Commission, Working Papers, Article IV Report, 1965, ‘‘Staff Draft No. 1,’’ pp. 22–23.

115 Ibid., 25.

116 Ibid., ‘‘Letter of Transmittal,’’ 1.

117 Ibid., 26.

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STATE BUDGET AND

FISCAL PROVISIONS

An Overview of the Early Yearsof the Budget Process

Reform During Crisis: The Transformationof California’s Fiscal System During

the Great Depression

∆

STATE BUDGET AND FISCAL PROVISIONSby Amanda Meeker

An Overview of the Early Years of the Budget ProcessThe budget was not a major part of the 1849California constitution, nor did the issue muchengage the framers in debate. They made somebrief provisions for a fiscal system, most ofwhich they borrowed from other states’constitutions.

Without debate, they adopted a provision fromthe Iowa state constitution that money couldonly be drawn from the treasury throughappropriations made by law.1 They did notinclude specifics on the appropriations process.

The one major fiscal provision outside oftaxation was that the state could not contractany debt in excess of $300,000. There was somedebate on the amount to be specified in thissection, which was initially set at $100,000, asum borrowed from the Iowa constitution.2 Thecommittee actually declared that it was ‘‘notparticular’’ about the sum, but ‘‘thought itnecessary to specify some definite amount.’’ 3

Some members of the convention felt that the$100,000 limit was too low, especially since itwould be some time before a tax could becollected for the new government. Othersdisagreed for various reasons. One delegateopposed any public debt at all, arguing that ‘‘ifwe could not carry on our State Governmentwithout contracting a debt of that magnitude,we were certainly starting wrong.’’ 4 Two menoptimistically opined that in all likelihood nodebt at all would be created after thegovernment got on its feet, no matter whatamount the Constitution permitted.5 Theconvention finally settled on the sum of$300,000 as a compromise between the initiallyproposed $100,000 and a counterproposal of$500,000.

The constitution did allow for exceptions to thisprovision, however. In cases of war, invasion, orinsurrection the limit could be automatically

exceeded. These exceptions would have beenparticularly relevant to the framers since theterritory had very recently been wrested fromMexico, and since troubles with NativeAmericans persisted. It was in fact used tojustify the issuance of Indian War bonds in1852.6 In addition, the limit could be exceeded ifthe state passed a law ‘‘for some single object’’that included specifications of the ways andmeans to discharge the debt within twentyyears. Such a law could take effect only if amajority of voters ratified it.

The optimists who predicted that the new statewould remain free of debt were incorrect; byDecember 1850 the total state debt amounted to$485,460.28, and by the next December itexceeded $2 million.7 The exceeding of theconstitutional limit for the most part was notoccasioned by war or insurrection, nor had thevoters ratified it or even been asked to considerit. Yet it continued to climb. Finally, a farmerwho opposed the building of a new road tookthe matter to court, and in 1855 the CaliforniaSupreme Court declared all debt in excess of$300,000 unconstitutional.8 In order to maintainits good standing, the state had to pay off thedebts as quickly as possible.

When a new constitution was adopted in 1879,several of the old fiscal provisions were retainedwhile more specific provisions regarding thebudget were added. Despite the apparentinadequacy of the 1849 Constitution’s debtclause, the delegates to the 1879 ConstitutionalConvention retained the $300,000 state debtlimit. The prohibition against government debtreflected the delegates’ general distrust of thelegislature. In the same vein, the delegatesadded various specific prohibitions against statespending. For example, they prohibited anypublic money from being used to supportsectarian causes. Each general appropriation bill

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State Budget and Fiscal Provisions — Page 47

was to include only items to pay the salaries ofstate officers, the expenses of state government,and institutions under government control. Onedelegate drew upon his own experience in thelegislature to explain the problem they sought toavoid by this clause. He noted that peoplewanting state funds for their causes would ‘‘gettheir friends in the legislature to demand thatthese appropriations be included, or they willfail to appropriate anything for the sustenanceof the state government.’’ 9 Another agreed:‘‘The general appropriation bill must be actedupon and passed by itself. It should not becumbered up with extraneous matter thatwould delay its passage until the last momentsof the session.’’ 10

Another change was made at the 1879convention regarding the budget process. The1849 constitution had provided for annuallegislative sessions, accompanied by annualbudgets, primarily because the framers atMonterey felt that the new state would have agreat deal of business to attend to, at least forthe first few years. By 1862, however, the pacehad slowed, and the legislature switched tobiennial sessions and budgets.11 The 1879constitution retained the biennial schedule. Thismove went along with a general feeling thatminimal government was best. No one wantedcareer politicians representing them in thelegislature.

In the years since the 1879 convention, issuesconcerning the state debt have sporadicallyreemerged. In 1908 an amendment changed theperiod in which the debt would have to berepaid from twenty years to seventy-five. Thenin 1956 the period was revised downward againto fifty years, based on the reasoning that inseventy-five years the interest payments wouldexceed the principal payments.12 A 1962amendment put further strictures on thecreation of debt by requiring a two-thirds votein each house of the legislature, instead of asimple majority, before a bond measure could besubmitted to the voters.

The budget process was changed significantlyby a 1922 initiative amendment. Sponsored bythe Commonwealth Club of California, it

instituted an appropriations process much thesame as it exists today.13 The governor was tosubmit a budget bill to the legislature within thefirst thirty days of the session. In order toremedy the problems that had arisen when thelegislature had formerly appropriated moneywithout having to consider the funds availableto meet the appropriations, the governor’sbudget was to be accompanied by a statementof estimated revenues for the biennium.14 Abudget bill was then to be introduced into eachhouse. This bill was the only one that couldinclude more than one item of appropriation. Asa matter of expedience, the governor was giventhe power to reduce or eliminate any items ofexpenditure in the budget bill passed by thelegislature. Maryland’s budget process, whichhad been adopted in 1916, served as a model forCalifornia’s new executive budget. It wassuggested that the new process would ‘‘savemoney because all appropriations will behandled in a business way, duplicationsprevented, and extravagance avoided.’’ 15

A major overhaul of the state’s fiscal systemoccurred in the 1933 with the Riley-Stewartamendment. The state was, of course, in themidst of a severe depression, and many peoplewere finding it more and more difficult to paytheir property taxes. The amendment’s focuswas on changing the system of taxation, but italso affected the budget. It provided that fundsfor the public school system would be set asidebefore any other appropriations were made,thus making the budget process somewhat lessflexible by increasing the percentage of statespending that was constitutionally fixed.16 Thegoal of this provision was to shift some of theschool tax burden from the counties to thestate.17 Another provision divided state andlocal taxation by designating that tax revenuesfrom certain professions could be used only forstate purposes, while freeing those professionsfrom local taxation.18 Most important for thebudget process was the provision that generalfund appropriations for any biennium,excluding school appropriations, could notexceed by more than 5 percent the appro-priations for the previous biennium unlessapproved by a two-thirds vote of each house of

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Page 48 — State Budget and Fiscal Provisions

the legislature.19 Since budget growth after 1933almost always exceeded 5 percent, thisprovision made the budget bill essentiallyrequire a super-majority for passage.Riley-Stewart also provided that not more than25 percent of total appropriations could beraised through property taxes. Theconsequences of the Riley-Stewart amendment,though significant, were not necessarilyintended. Its backers primarily wanted relieffrom ‘‘confiscatory’’ property taxes, thoughincreasing the proportion of state aid for schoolsand slowing government spending were alsoimportant.20 In 1962 an amendment removedthe 5 percent formula, instead simply calling fora two-thirds vote on the budget bill. This movemerely recognized the existing effect of theRiley-Stewart provisions. As the ballot argumentin favor of the measure pointed out, ‘‘theremoval of the formula will not change thepractical effect of this constitutional provision.’’The amendment was included with severalother deletions to ‘‘remove obsolete,superfluous, or superseded provisions.’’ 21

Unprecedented growth during World War IImade an annual budget seem necessary to‘‘eliminate excessive spending and waste ingovernment.’’ The biennial budget forcedlegislators to guess up to two years in advancewhat expenditures would be necessary andwhat revenues would be available, a taskthat seemed increasingly difficult in the‘‘fast-moving world’’ of the 1940s. In thebiennium 1943–45, budget estimates had beenoff, resulting in excess revenues of over$200 million.22 As a result, an amendment wasadopted that provided for an annual budget, tobe introduced within the first thirty days of thegeneral session, held in odd-numbered years,and within the first three days of the budgetsession, held in even-numbered years.Amendment backers argued that an annualbudget would allow the people more controlover state finances and would allow thelegislature to meet unforeseen emergencies.23 In1949 the budget session was limited to thirtydays in order to make lawmakers ‘‘get down tothe brass tacks work of the session sooner.’’ 24

Through the work of the constitution revision

commission, in 1966 a general overhaul of thearticle on the legislature abolished the separatebudget session. Instead, the legislature was tomeet in annual general sessions, at which thebudget would be considered along with generallegislation.

The two-thirds vote requirement regarding thebudget drew considerable debate at themeetings of the constitutional revisioncommission in the 1960s and 1970s. In 1966 theminority position argued that ‘‘what theyintended in 1933 was that the annual financingplan could be passed by majority vote’’ whileonly excess appropriations would require atwo-thirds vote. They also pointed out that ‘‘inmost cases where extraordinary majority votesare required, the presumption is that we wouldbe better off having no action at all in the eventthat any substantial minority so desires,’’ whileit was imperative to pass a budget.25 Themajority of the commissioners, however,concluded that the two-thirds vote wasnecessary to protect the different interests ofurban versus rural and north versus south.26

The topic resurfaced in 1970, when severalcommission members expressed opinions thatthe provision was anachronistic, while otherssuggested that the requirement might be aviolation of the federal constitution. In anothercontext, the California Supreme Court hadrecently ruled that giving one-third of the votersthe power to veto a measure effectively gavethem double the voting power of the othervoters.27 As one commissioner put it, ‘‘ourcommission, whose function is to create amodern, revised constitution, cannot vote toinclude an unconstitutional provision.’’ 28

Additionally, they recognized that thetwo-thirds vote requirement ‘‘is going to subjectthe minority party, whichever party it is, to thetemptation to vote to some extent on purelypartisan considerations on the single mostimportant proposal that comes before thelegislature year by year.’’ 29 Another impetus forthe discussion on the issue in 1970 was the factthat the legislature had the year before, for thefirst time, failed to enact a budget by July 1, thestart of the fiscal year. Several commissioners

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advocated a majority vote for the budget basedon the fact that the super-majority vote had‘‘proved to be in effect a political weapon in thehands of the legislative minority.’’ 30 Others,however, argued that it was the only means theminority party had to stop unwantedappropriations, and that if the voterequirements were changed, ‘‘the next thing youare going to have is the simple majority on bondissues on the ballot and the taxpayers again willbe at the mercy of those people who don’t ownany property.’’ 31 The amendment as ultimatelyratified did not change the super-majorityrequirement.

Another amendment of 1970 allowed thelegislature to raise interest rates on unsoldbonds in order to increase their marketability.The goal was to make sure thatalready-approved bonds to finance various stateprojects would be sold. As the amendment’sproponents pointed out, the only alternative, anunpleasant one, was ‘‘pay-as-you-go financing’’and higher taxes.32

Yet another 1970 amendment required thegovernor to submit the budget within the firstten days of the legislative session, instead ofwithin thirty days, and required the legislatureto pass a budget by June 15, two weeks inadvance of the new fiscal year. This action wasbased on the failure of the legislature to enact abudget by the start of the fiscal year in 1969 and1970. The amendment’s supporters surmisedthat the extra three weeks in January wouldallow legislators more time to consider thebudget and that the early mandatory deadlinewould force the legislature to enact the budgetin plenty of time before the fiscal year began.33

As recent events have demonstrated, problemswith the budget have continued despite thesechanges.

A major part of the problem with the budgetprocess has been that although related to thebudget bill, the budget implementation bills aregoverned by what is known as the single-subjectrule and must be considered individually, ratherthan as a package. Since the 1849 Constitution,all bills except for the budget have beenrequired to pertain to a single subject, which

must be expressed in its title, a requirementborrowed from the Iowa constitution andadopted by the California delegates withoutdebate. The framers thereby sought to preventwily legislators from getting provisions enactedby hiding them in popular legislation. Mostdelegates to the 1879 convention, with theiranti-legislature sentiments, also believedstrongly in the necessity of such a provision. Asone explained, ‘‘in the careless way in whichlegislation is carried on, mischievous provisionsmay slip in, unless you have such a provision asthis in the Constitution.’’ 34 An opposingargument unsuccessfully countered that sincethey were providing that bills would be read onthree different days, ‘‘no member of theLegislature could be voting under a trick.’’ 35

The provision as it stood in the firstconstitution, however, had not been entirelysuccessful. One delegate to the 1879 conventiondescribed having seen a bill on a general subjectthat included, somewhere near the middle, aprovision to purchase a toll-bridge across theSacramento River.36 Another delegate pointedout that while in some instances there waslegitimate reason to join two subjects in one bill,as it stood in the old constitution the whole billwould be void if it contained more than onesubject. He cited a case in the previouslegislative session in which a bill was declaredvoid because it dealt with both the maintenanceof booms in the Elk River and the removal ofobstructions from that river.37 Based upon sucharguments, the convention concluded that ifsuch legislation were passed, the portion notexpressed in the title would be void, while therest of the law would remain valid.

The application of the single-subject rule to thebudget trailer bills has also resulted inconfusion. Although the budget bill itself maybe enacted, some important part of thelegislation necessary to make the budget workcan be omitted. To address this issue, aproposition was submitted to the voters in 1993that would have permitted the budget trailerbills to be consolidated into one bill. Proponentsargued that the amendment would promotetimely passage of the budget and would stop

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special interests from ‘‘exploiting thefragmented budget process.’’ The oppositioncountered that the amendment would make iteasier to raise taxes because it would make the

budget bill harder to understand, an argumentthat the voters evidently found sufficientlyconvincing to reject the proposition.38

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ENDNOTES

State Budget and Fiscal Provisions1 Cardinal Goodwin, The Establishment of State Government in California (New York: Macmillan,

1914), 239.

2 Delegate McCarver, in J. Ross Browne, Report of the Debates in the Convention of California, onthe Formation of the State Constitution (Washington, DC: John Towers, 1850), 165.

3 Delegate Norton, in Browne, Report, 165.

4 Delegate Gwin, in Browne, Report, 165.

5 Delegates Lansford Hastings and Winfield Sherwood, in Browne, Report, 166.

6 Gregory Bounds, State Debt Background Study (California Constitution Revision Commission,1969), 28.

7 William Fankhauser, A Financial History of California: Public Revenues, Debts, and Expenditures(Berkeley: University of California Press, 1913), 153, 155, 225.

8 People v. Johnson, 6 Cal 499, in Fankhauser, Financial History, 171–72.

9 Delegate W. J. Tinnin, in E.B. Willis and P.K. Stockton, Debates and Proceedings of theConstitutional Convention of the State of California (Sacramento: State Printing Office, 1881), 818.

10 Delegate John Hager, in Debates, 818.

11 California Constitution Revision Commission, Proposed Revision of the California Constitution(San Francisco: California Constitution Revision Commission, 1966), 128.

12 Ballot Argument, November 1956.

13 Report, in California State Archives, F3675:127.


15 Ibid.

16 Art. 13, Sec. 15, as amended 1933.

17 Crow v. Bd. of Supervisors, in Constitution of California, annotated by Paul Mason, (Sacramento:State Printing Office, 1946), 1232.

18 Art. 13, Sec. 14; Northwestern Mutual Life Insurance v. Johnson, in Mason, Constitution, 1209.

19 Art. 4, Sec. 34a, as amended 1933.

20 Ballot Argument, June 1933; James Hartley et al., ‘‘Reform During Crisis: The Transformation ofCalifornia’s Fiscal System During the Great Depression,’’ 1994, 2–3.



23 Ibid.

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24 Ballot Argument, November 1949.25 California Constitution Revision Commission, Proposed Revision of the Constitution (San

Francisco: California Constitution Revision Commission, 1966), 197–98.26 California Constitution Revision Commission, Report, California State Archives, F3675:127.27 Westerbrook v. Miahly (1970) discussed by Commissioners Selvin and Silverman, Constitution

Revision Commission meeting files, 1970, California State Archives. F3675:99.28 Commissioner Silverman, Constitution Revision Commission meeting files, 1970, California State

Archives, F3675:99.29 Commissioner Veig, Constitution Revision Commission meeting files, California State Archives,

F3675:99.30 Constitution Revision Commission meeting files, California State Archives, F3675:126.31 Commissioner Holmes, Meeting files, California State Archives, F3675:126.32 Ballot Argument, November 1970.33 Ibid.34 Delegate Clitus Barbour, in Debates, 797.35 Delegate George Schell, in Debates, 797.36 Delegate Abraham Freeman, in Debates, 797.37 Delegate Wilson, in Debates, 797.38 Ballot Arguments, November 1993.

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Reform During Crisis: The Transformation

of California’s Fiscal System

During the Great Depression*

JAMES E. HARTLEYDepartment of EconomicsMt. Holyoke College

STEVEN M. SHEFFRINDepartment of EconomicsUC Davis

J. DAVID VASCHEOffice of the Legislative AnalystState of California

————————————* This paper was published in the Journal of Economic History, September, 1996, and an earlier

version was presented to the All-UC Group in Economics History on April 10, 1994, held inBerkeley , California.

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Reform During Crisis: The Transformation of California’s

Fiscal System During the Great Depression

Abstract

In the midst of the Great Depression, Californiaengaged in a massive restructuring of its taxsystem, reducing the reliance on the propertytax and introducing sales and income taxes. Ouranalysis suggests that this restructuring, whichincluded a voter referendum, was primarilydriven by a desire to change the mix rather thanthe level of taxation. Nonetheless, byintroducing new taxes that had a higher revenueelasticity than the existing taxes, Californiacreated a revenue system that allowed the rapidgrowth of spending to continue.

Economic historians have been keenly interestedin the acceleration of governments’ growthduring the Great Depression. Robert Higgsargues that both the size and powers ofgovernment grow during perceived crises andthat the Great Depression provides a classicexample of this phenomenon.1 John Wallishighlights both the growth of federalgovernment at the expense of local governmentand the growth of state government during the1930s.2 He emphasizes the incentives providedby federal grants to change the nature of andsize of government programs, particularly in thearea of agricultural price supports and publicwelfare.

In this paper, we focus on an alternativeexplanation for the growth of state governmentin the 1930s: the modernization of the taxsystems that occurred during the very early partof the Great Depression. Voters, legislators, andgovernment officials transformed state and localfiscal systems throughout the United Statesduring the Great Depression. Retail sales taxeswere introduced at a rapid rate during thisperiod. Of the 46 states that now have retailsales taxes, 24 initiated them during the 1930s,the vast majority by 1933.3 Many states alsointroduced personal income taxes during thisperiod. No other decade in this century has

witnessed as dramatic a set of changes in statetax structures and fiscal systems generally.

Since the fiscal changes in the states occurredearly in the 1930s, they potentially couldconstitute a third independent factor leading tothe growth of government. The majority of thesechanges occurred before the bulk of the federalgrant programs were implemented. To theextent that the modernization of the state taxsystems permitted higher, sustained revenuegrowth by increasing the elasticity of the taxsystems, they can also account for the ‘‘ratchet’’effect emphasized by Higgs whereby the growthof government powers continues after the crisisappears to end.

What led to the modernization of state taxsystems in the 1930s? Robert Haig and CarlShoup discuss the variety of economic andpolitical factors that led to the adoption of thesales tax throughout the country during thisperiod.4 Along with a team of researchers, theyclosely analyzed the economic and politicaldevelopments in the states. Based on thisdetailed research they believed it was notpossible to explain the spread of the sales taxwith reference to a single source of revenue orexpenditure.5

Other research highlights the diversity of factorsthat led twenty states to adopt broad based salestaxes between 1931 and 1938. Based on aneconometric investigation, Kim Rueben suggeststhat states with more severe employmentdeclines and strict balanced budgetrequirements were more likely to adopt salestaxes.6 In general, however, she found onlyweak effects from economic variables. JensJensen, a contemporary observer, emphasizedthe role of property tax limitations.7 He pointedout that in 1934 all eight states that hadpreviously adopted property tax limitations hadenacted retail sales taxes as compared to onlynine of the other 40 states.8

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Reform During Crisis: The Transformation of California’s Fiscal System During the Great Depression — Page 57

Because of these conflicting perspectives, it isvaluable to examine in- depth the fiscal historyof an important state. The changes in theCalifornia fiscal system during the 1930s wereas dramatic as anywhere in the country. In 1933,voters approved an initiative measure (theRiley-Stewart constitutional amendment) thatquickly led to a major restructuring of the entirestate and local system, the immediateintroduction of a retail sales tax, and theintroduction of a personal income tax two yearslater. The fiscal system enacted in Californiaduring the 1930s has persisted in its basicstructure through today.9 These changes haveallowed real per-capita state expenditure togrow by a factor of approximately 10 from1929/30 to 1989/90.

A close examination of the California experiencereveals that this fiscal transformation wasneither preordained nor intended as a means toallow government to grow. Although therestructuring of the fiscal system did allowgovernment to grow rapidly over the nextseveral decades, raising additional revenue wasnot the intention behind most of the fiscalchanges undertaken during the GreatDepression. Voters were primarily interested inchanging the mix of taxes, indeed provisions forexpenditure limitations were part of theRiley-Stewart amendment

The actions that were taken during this periodwere dramatic, unpredictable, and potentiallyrisky. For example, the 1933 Riley-Stewartinitiative required the state to give up itsprincipal revenue source for financing theGeneral Fund at a time in which it was widelyacknowledged that there was a large GeneralFund deficit and without an explicit source toreplace the lost revenue. On the same ballot,voters also overwhelmingly rejected a measureto use proceeds from the state’s special fund(replete with revenue from taxes on gasoline) toredeem highway bonds and meet interestpayments.

Four factors emerge from a careful examinationof California’s fiscal history during the early

phases of the Great Depression that are crucialto understanding the fiscal transformation. First,there was an extremely rapid growth ofgovernment expenditures during the late 1920sand continuing into the 1930s. The growth ofthese expenditures was common knowledge butpolitical actors deemed some of this expendituregrowth ‘‘uncontrollable.’’ Second, the state’staxation of utilities was widely viewed asunsatisfactory and there were strong advocatesof change in the name of pure tax reform. Third,intergovernmental relations were central to thedebate. The role of the state in financingelementary and secondary education was a keyfocus of political controversy. Finally, andclosely related to the question ofintergovernmental relations, were issuesconcerning the structure of taxation. There wasgeneral support for property tax relief but deepdivisions over the sources of revenue to supportthis relief and over the mechanisms that neededto be enacted to ensure that the property taxreform was to be lasting.

This article explores the role of these fourfactors—expenditure growth, pure tax reform,intergovernmental relations, and, mostimportantly, a change in the desired mix oftaxation—in California’s fiscal transformation. Italso examines the consequences of themodernization of the tax system for closing thedeficits that emerged during the 1930s andsustaining revenue growth which allowed forlarge increases in government spending in lateryears.

The following sections analyze the fiscalstructure prior to the Great Depression, therapid growth of government spending, thevoting behavior for the Riley-Stewart initiative,and possible fiscal alternatives to majorstructural changes in taxation. The articleconcludes by contrasting traditional politicalhistories of California during the GreatDepression with its innovative and tumultuousfiscal history. We also reflect on the implicationsof the change in elasticity of the state’s taxsystem for its future economic growth.

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Page 58 — Reform During Crisis: The Transformation of California’s Fiscal System During the Great Depression

An Overview of California Fiscal HistoryDuring the Depression

In the period 1929/30, total state revenuewas approximately $114.6 million of which$65.3 million was in the general fund and$49.3 million was in special funds that werepnimarily for motor vehicle relatedexpenditures. Tax revenues for the general fundcame principally from four sources: grossreceipts taxes on public utilities (52.5 percent),inheritance and gift taxes (17.8 percent), thebank and corporation franchise tax (10.5percent), and the insurance gross premiums tax(10.2 percent). Special fund revenues werelargely derived from taxes on motor fuels andmotor vehicles.10 Local governments wereprimarily financed from the property tax. Cities,counties, and special districts would each leveltheir own property taxes.

The most unusual part of the this tax structurewas the heavy reliance on a gross receipts tax onutilities to provide general revenues. This taxoriginated in 1910 from a prior tax reform effortThere were difficulties with the tax from itsbeginning. The primary problem was that therelationship of net income to gross receiptsvaried across classes of utilities, varied acrossdifferent sizes of utilities within the same class,and also varied over time. In 1929, a taxcommission documented these differencesthoroughly and recommended abolishing thegross receipts tax. The commission advocatedthat utility property be returned to localgovernment tax rolls but be assessed by thestate to insure equal treatment across localjurisdictions. These recommendations wererejected by a 1931 joint legislative committee;nonetheless there were well- documenteddifficulties with the gross receipts tax.11

By the early 1930s, demands for property taxrelief became pronounced. The primary demandwas for increased state aid for elementary andsecondary schools, a policy that had beenrecommended by the 1931 tax commission.Groups supporting property tax relief andincreased state aid placed an initiative on the8 November 1932 general election ballot This

initiative not only provided property tax reliefbut permitted the introduction of personalincome taxes and a sales tax. It was defeated bya nearly 2-1 vote.

Early in the next year, Governor Rolph faced thefirst state fiscal crisis of the depression. At theend of fiscal year 1930/31, the state had ageneral fund surplus of approximately$31.5 million. By January of 1933, this surplushad disappeared and a $10 million deficitbalance was projected for June 1933. Thegovernor’s budget message in January alsopredicted an additional deficit of $66 million forthe 1933-35 biennium if no actions were taken.12

The governor’s own proposals were ignored andthe legislature worked through the spring infashioning a budget and the language for theRiley-Stewart initiative.

The Riley-Stewart initiative, which the votersapproved in a special election on 27 June 1933,had four main components: public utilityproperty was to be returned to local propertytax rolls and the gross receipts tax abolished in1935; the state would provide additionalsupport for elementary and secondary schools;limits were to be placed on expenditureincreases both at the state and local levels; andthe Legislature was to be authorized to raiseadditional revenue to meet the cost for schoolaid. The source of this revenue was notdescribed in the initiative but it was generallyacknowledged that a sales tax would benecessary.

After the Riley-Stewart amendment passed bynearly a two to one margin, the Legislaturefaced an enlarged state deficit from theadditional school aid. It quickly adopted a retailsales tax based on New York’s model and alsogassed a personal income tax. The personalincome tax was vetoed by the governor. Therewere other revenue increases as well, but thesewere insufficient to cover expenditures duringthe biennium and the state fiscal situationcontinued to deteriorate.

In the beginning of 1935, Governor FrankMerriam estimated that the carryover generalfund deficit balance would be $29 million and

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that an additional $95 million was needed tobalance his proposed budget The deficit wasexacerbated by the loss of the gross receipts tax.He proposed an increase in taxes of $107 millionthat included instituting a personal income taxand raising the sales tax rate from two percentto three percent These changes constitutedroughly half of the total tax increase with theremainder coming from increases in rates ofother taxes. The Legislature adopted his policyand Merriam was able to return in two yearswithout asking for a tax increase.13 During thelate 1930s, the state again incurred large deficitsbut they were quickly erased during thebuild-up and early phases of World War II. Noother taxes were introduced during the 1930s.The state did have to borrow extensively duringthe 1930s and began issuing registered warrantsin November of 1933 at an initial interest rate of5 percent, a rate comparable that paid on AAAcorporate bonds. (Short-term US securities paidless than 1 percent) Initially there was no publicmarket for the warrants but most banks didaccept them. The outstanding stock of registeredwarrants reached a peak of over $98 million inJuly of 1940; shortly thereafter a rapidlyimproving economy created fiscal surpluses thatallowed the warrants to be retired.14

The Growth of Government Expenditure

The budget crises of the early 1930s wereprecipitated by the rapid growth of spendingrelative to revenue. During this period, therewas also a vigorous debate over whethergovernment expenditures were controllable.

General Fund revenues and expenditures—themost common measure of the fiscal health of thestate—are available on a consistent basis onlyfor the 1930s. During the 1920s the onlyconsistent series for government spending isbased on the ‘‘cost of government.’’ 15 Theprimary difference between cost of governmentand what is termed state expenditures is thetreatment of funds which are merely shiftedfrom one state account to another state accountSuch transfers are counted as state expendituresbut not as costs of government Thus, cost ofgovernment is an accurate measure of funds

leaving state coffers. Tables 1 and 2 report dataon General Fund revenues andexpenditures—the focus of budget crises—whileTable 3 reports data on expenditures from1926–36 based on the cost of government series.

Table 1 summarizes nominal and real growth inGeneral Fund expenditures and revenues whichoccurred from the 1929/30 through the end ofthe 1930s. The top panel contains the nominalfigures. There were three distinct fiscal periods:rapid growth of revenues and expenditures inthe 1920s, sharply reduced growth of revenuesin the early 1930s, and a later resumption ofgrowth of revenues and expenditures throughthe remainder of the decade.

This basic pattern also applies to realmagnitudes. From 1925/26 through 1929/30,real total spending (as measured by the cost ofgovernment) rose by an average of 11 percentper year. From 1930/31 through 1932/33, realGeneral Fund expenditures grew by 14 percentwhile revenues fell by 8 percent The increaseswere greater and the declines were less inconstant dollars than in current dollars becauseof the price deflation that occurred in the early1930s. For 1932/33 through 1940/41, realGeneral Fund spending grew by 10 and realrevenues grew by 18 percent.

Another common way of measuring budgettrends is in expenditure or revenues per $100 ofpersonal income. Table 2 presents these trendsfrom 1929/30 through the 1930s. From 1929/30to 1933/34, General Fund expenditures per $100of state personal income rose each year. Theincrease in General Fund expenditures was fromabout $1.29 to $3.23. Total state expenditures(not included in this table) followed a similarpattern.

From 1929/30 to 1933/34, total state revenuesper $100 of personal income also steadily driftedup and then continued to rise to over $5.20 by1937/38. Similarly, General Fund revenues wereconsiderably higher per $100 of personal incomein 1933/34 ($2.51) than in 1929/30 ($1.29), andreached $3.60 by 1937/38.

In summary, expenditures and revenuesincreased at rapid rates prior to the depression.

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During the early years of the 1930s, revenuesdid decline, but expenditures continued to rise,especially in constant-dollar terms. Expendituresand revenues as a share of the state’s economicbase also rose during the first half of the 1930s,and revenues per $100 of personal incomecontinued to rise throughout most of thedecade. These findings indicate that, over thecourse of the decade, neither reducing stateexpenditures nor reducing assistance to localgovernments were the primary tools used todeal with the fiscal crises spawned by thedepression. Debt and the introduction of newtaxes were the policy tools chosen.

The rapid growth of spending in the late 1920sand early 1930s triggered a debate as to whethergovernment spending was actually controllable.As noted above, this was a period of rapidgrowth for the California state budget. In thefour years after 1925, total state spendingrose by 45 percent. By 1931, it had risen by70 percent.

As the Great Depression set in, state spendingdid not slow appreciably; it continued to growat an average of 8 percent per year in 1930–1932.While in nominal terms it appears that the statedid rein in spending to some degree, realspending increased sharply because the pricelevel fell in the early years of the depression.Thus, the onset of the Great Depression did littleto slow the growth of state spending. However,it did have a very large impact on the overallbudget situation because state revenuesdeteriorated sharply in the early 1930s.

In the late 1920s, tax revenues were rising by anaverage of 11 percent per year. Since the overallbudget was in surplus during this time, therewas more than enough additional tax revenue topay for the increased spending. However, in theearly 1930s, total tax revenues fell by an averageof 1 percent per year resulting in large deficits.

It was not any particular part of the budget thatwas growing. Spending was increasing acrossthe board. Table 3 reports the growth rates ofnominal spending (using cost of governmentseries) by programmatic category as well astotal and average growth rates for selected

periods. In the late 1920s, construction andcorrections were growing the fastest In the early1930s, protection, regulation, and benevolencegrew at a particularly rapid rate.

Government officials frequently claimed that thebudget crisis was out of their control. In hisbudget message in 1933, Governor Rolphlamented that ‘‘existing laws call forexpenditures which make it impossible for theChief Executive alone to solve the problem ofpresenting a balanced budget without increasingtaxes. . . . The Governor of the State ofCalifornia has control over only approximately27 percent of the total budget The remaining73 percent of expenditures is fixed by law, inother words, by the Legislature and the people.Even though the Governor should desire toreduce materially this 73 percent of theexpenditures he is without power to do so.’’ 16

However, the definition of ‘‘fixed’’ charges inthe above statements is rather elastic. Itconflates two different types of expenditure.Certain charges were fixed by the CaliforniaConstitution, for example, interest paymentsand education expenditures. It is legitimate toconsider these expenditures beyond the controlof the Legislature. However, the definition offixed charges used above also encompassedwhat today is commonly called continuingappropriations. These expenditures wereestablished by the Legislature in previous yearsand thus could be changed or eliminated by theLegislature. Examples of these types ofexpenditures included aid to the blind, aid tothe aged, aid for vocational education, aid foradult education, salaries of Superior Courtjudges, and subsidies to hospitals fortuberculosis.17

What portion of the budget was constitutionallyfixed and thus truly beyond the control of theLegislature? Using the Reports of the StateController, we calculated the fixed chargesduring this period.18 Until 1934, only about30 percent of all state spending wasconstitutionally fixed. However, a bettermeasure of the role of fixed spending focuses onthe General Fund since the budget crisis was acrisis of the General Fund. Until 1934, close to

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half of the total expenditures from the GeneralFund were constitutionally fixed. TheRiley-Stewart Amendment increased thispercentage for subsequent years. Out of thesefixed expenditures, nearly 80 percent went toeducation and another 16 percent were paid outas interest The budget problems cannot beblamed on rapid growth in fixed spending; fromTable 3 we can see that spending on educationgrew at a slower rate than the overall budgetFixed charges were only part of the problem.There was clearly a deep-seated reluctance tochange the ‘‘continuing appropriations.’’California residents and public officials hadbecome accustomed to growing publicexpenditures.

Understanding the Riley-StewartAmendment

The single most critical event in California’sfiscal history during the depression was thepassage of the Riley-Stewart constitutionalamendment. As noted above, Californiaimmediately adopted a retail sales tax after theamendment’s passage and a personal incometax two years later. These changes put in place arevenue system that would permit rapid growthin government for decades. However,developing an elastic revenue system was notthe motivating factor for the passage ofRiley-Stewart it emerged as a response togrowing voter discontent over the property taxduring the Great Depression.

As personal income fell during the depression,property tax delinquencies rose in California asthey did throughout the country. Californiaexperienced less severe problems than did manyother jurisdictions. In Los Angeles County, forexample, the percentage of uncollected leviesrose from 4.3 percent in 1931–32 to 10.1 percentin 1932-33. This was a far cry from theexperience in the midwest with a 37.6 percentrate in Milwaukee in 1931-32 and a 40.6 percentrate and widespread tax resistance in Chicago in1931–32.19 Nonetheless, there were persistentdemands for property tax relief emerging inCalifornia.

As Haig and Shoup and Stockwell discuss, realestate interests began to promote limitations onad valorem taxation, county officials soughtstate relief from mandated school expenditureswhich they believed should be assumed by thestate and financed with a sales tax, and farminterests favored personal income taxation.20

These groups finally coalesced aroundProposition 9 which was placed on the generalelection ballot of November 8, 1932.

This initiative would have provided relief tocounties for elementary and secondary schoolwhich would have enabled the counties toreduce property taxes. However, it alsointroduced both a personal income tax and aselective sales tax, as well as mandated thatteachers’ salaries be a fixed percentage of totaleducational expenditures.

Critics attacked the proposal along severaldimensions, in particular arguing that thisamendment increased mandated expendituresin bad economic times.21 Furthermore, the issuewas poorly ‘‘framed’’ for the voters.22 Themeasure as it appeared on the ballotemphasized new taxes, new spending, andear-marked expenditures for teacher salaries.No mention was given to the potential forsubstantial property tax relief that would occuras counties were relieved of required supportpayments for schools. Proposition 9 wasdefeated by a vote of 1,1144,449 to 552,738.

In early 1933, Governor Rolph faced thedaunting task of developing a budget plan forthe 1933-35 biennium. As noted above, on acurrent-law basis there was a $66 million dollardeficit plus a $10 million deficit carryover fromthe prior biennium. His proposed budget aimedto close these gaps without tax increases. Hisrecommendations included $24 million inreductions in operating budgets andstreamlining, $23 million transferred from thespecial highway fund to the General Fund, aconstitutional amendment to reduce state fundsto schools ($12 million) and another amendmentto allow funds from a state educationpermanent fund to be used for operatingpurposes ($11 million).23

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The Director of Finance, Rolland Vandegrift,provided the justification for these policies.First, some of the funds transferred from thehighway fund were to be used to pay principaland interest on highway bonds and thus wereappropriate uses for funds raised by user fees.The remainder of the money transferred fromthe highway fund was premised on the notionthat the highway fund could achieve equaleconomies to that which the Governor wouldobtain from the general fund operating budgetThis transfer was appropriate, he argued,because we ‘‘should be more concerned with thewelfare and happiness of the individual citizenthan we are concerned with the building ofinanimate roads.’’ 24

The most controversial part of the budget wasthe proposed twenty percent reduction in statefunds for schools from $30 to $24 per pupil.Vandegrift offered two arguments in support ofthis reduction. First, there had been over a thirtypercent fall in the general price level since 1924when the $30 amount was placed into the stateconstitution. Second, he saw no reason why theschools could not make twenty percent savingsas the governor proposed for the rest of thegovernment

Almost every component of the governor’s planwas highly unpopular with either legislators orthe public. For example, in the June 1933election, voters overwhelming rejected thenotion that highway funds should be used forGeneral Fund purposes when they voted downthe seemingly innocuous measures to payprincipal and interest on highway bonds fromspecial funds. The San Francisco Chronicleregularly editorialized against what it perceivedto be this raid on highway funds during theperiod preceding the election.25 Its position wasperhaps not too surprising given that both theBay Bridge and Golden Gate Bridge were underconstruction. To voters and legislators,reductions in state support of the schools wouldinevitably mean higher property taxes. Teachersalso opposed the plan. Since salaries were ahigh proportion of school costs, maintainingproperty tax rates would have required largenominal wage reductions.

The governor’s plan was ignored by theLegislature. The State Controller, Ray L Riley,and a member of the Board of Equalization,Fred E. Stewart, assumed leadership in thecrisis.26 They offered an initial plan which wassubstantially changed by the Legislature butnonetheless bore their names. The resultingconstitutional amendment, which we havepreviously described, was offered to the votersin a special election on 27 June 1933.

Unlike Proposition 9, this measure was ideallyframed and, indeed, seemed to promisesomething for all parties. It emphasizedproperty tax relief through the reduction inschool expenditures by counties and an increasein the property tax base. Local expenditurelimits were designed to force counties to lowerrates and not increase spending with the highertax base. The utility industry would be free ofthe gross receipts tax and assessed by the stateat a rate comparable to that for local property.And despite the fact that new taxes were clearlyon the horizon, the nature of the taxes wassufficiently ambiguous so that debates about therelative desirability of income versus sales taxescould be postponed.

Although the ultimate effect of the passage ofthe Riley-Stewart amendment was to develop anelastic tax system that would permit the growthof government, at the time the support for theinitiative was based on very differentconsiderations. While the proponents ofProposition 9 (real estate interests, farminterests, and county officials) also supportedRiley-Stewart, there were new proponents aswell. Utility interests favored Riley-Stewartbecause it abolished the gross receipts tax. Inaddition, some parties supported Riley-Stewartin order to restrain government growth.Taxpayer organizations emphasized the stateand local expenditure limitations and saw thisas a method to restrain government Proponentsof the measure, such as the State Chamber ofCommerce, stressed expenditure limitationsalong with taxpayer property tax relief.27

On the other hand, some parties viewed this asa change in the mix or composition of taxes,away from the property tax to a sales tax. It was

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commonly recognized that the passage ofRiley-Stewart would bring forth additional statetaxes. The strongest opposition in San Franciscowas from the Retail Dry Goods Associationwhich opposed a retail sales tax; otheropposition was not well organized.28

One way to address the question of whether thevoters were primarily seeking changes in the taxmix or reductions in the size of government is toanalyze the voting behavior across counties.29

There are two parts to our analysis.

We first establish that the vote across countieswas consistent with the direct economicinterests of the voters. The counties differed inthe extent to which they would benefit from thestate assumption of school expenditures and thereturn of public utility property to the tax rolls.Variables measuring these differences cancapture the relative gain from changes in themix of taxation. The regressions assumeimplicitly that consumers, who ultimatelywould bear the burden of a retail sales tax, takeits effects into account as voters.30 We alsoinclude other background variables in ourbaseline regression to capture differences invoter sentiment across the counties.

We then examine the effects of variablesdesigned to explore whether the voters alsowanted smaller government To capture this, weuse the fact that the counties differed on theabsolute level of local property taxation and therate of growth of property tax rates. If votersdesired a lower level of government, awehypothesize that those counties with either thehighest tax rates or, alternatively, the most rapidgrowing tax rates would be the ones most likelyto vote for the measure. These regressionsimplicitly assume that tastes are the same acrossthe counties; if tastes for public servicesdiffered, higher tax rates could be associatedwith a greater demand for public services.

We now turn to the specification of the baselineregression which establishes that voters werecognizant of their economic interests. Thedependent variable in this regression is thepercentage of votes in each of the 58 counties infavor of the Riley-Stewart measure. The first

two independent variables we include aredesigned to capture the differences inideological positions across counties. These canbe viewed as proxies for ‘‘fixed effects’’ in theattitudes of voters across counties. The twovariables we chose were the percentage of ‘‘yes’’votes for Proposition 9 and the percentage ofregistered Republicans. The support for theprior proposition captures the degree of generalsentiment for radical reform of the property taxsystem. The Republican variable captures thesignificant but unobserved differences evidentin voting behavior in prior elections betweenmembers of the two parties.

The next two variables in the baseline regressioncapture the tax-mix variables. The first is theratio of average daily attendance in elementaryschools to the total population. This measurecaptures the benefits from the state assumptionof county school costs. The second variable isthe estimated percentage decrease in propertytax rates from the return of utility property tothe rolls. These estimates are derived from datafrom the Board of Equalization that waspublished in Tax Digest in July of 1935.31 Theother series used in the regressions are also fromTax Digest. Before discussing the results of thisregression and subsequent tests, there are twoeconometric issues that should be addressed.First, the counties differ sharply in size, LosAngeles County having over 2 million peopleand Alpine County only 241. Although thevariables are scaled relative to population, thereis the potential for heteroskedasticity. Tests forheteroskedasticity were not significant;nonetheless, the results reported below arerobust to alternative corrections forheteroskedasticity.32 Second, the dependentvariable is constrained to lie between zero andone. Regressions using the transformation inwhere x is the percentage ‘‘yes’’ vote, whichallow the dependent variable to beunconstrained, yielded similar results.

The first column of Table 4 reports the baselineregression. It has an adjusted R-squared of32 percent and significant coefficients for theprior Proposition 9 vote, the percentage ofRepublican registrants in the county, and the

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two tax mix variables. One way to measure theelectoral significance of the variables is tocalculate the effect of a one standard deviationchange in each of the variables on the votecount A one standard deviation increase in theProposition 9 vote would increase theRiley-Stewart vote by 2.9 percentage pointswhile a one standard deviation increase in thepercentage of Republicans would have a2.5 percentage point effect. Similar calculationsfor the two tax mix variables—average dailyattendance and utility property—lead to a 4 and2.6 percentage point effect—respectively.

The model does significantly over predict thepercentage ‘‘yes’’ vote for San Francisco. But itwould be hard to find a simple model thatwould fit San Francisco since its percentage‘‘yes’’ vote was 36 compared to the statewidepercentage of 62. San Francisco did have a verylow ratio of school children to overallpopulation—7.3 percent compared to thestatewide average of 12.8 percent with astandard deviation of 2.1 percent. It also had arelatively low percentage of utility property thatwould be returned to the rolls. Although wecould find no mention of the school age effect,editorials in San Francisco (as well as LosAngeles) remarked that the elimination of thegross receipts tax would hurt urban areas.

The remaining columns of Table 4 test for thehypothesis that the voters wanted lowergovernment by including alternative measuresof the size or growth rate of the local taxburden. None of these variables are statisticallysignificant at conventional confidence levels.Tests were run for the total property tax burden(including counties, cities, schools and specialdistricts) in 1934–35; the county tax rate in1932–33 (adjusted for assessment ratios incounties); and the growth of the county tax ratebetween 1929–30 and 1932–33. The growth ratevariable was the closest to being statisticallysignificant (its p- value was 0.20) but itscoefficient was small and negative. The meanchange in this variable in the sample was .60which translates into a decrease in theRiley-Stewart vote of .47 percentage points.

Since San Francisco was and is both a city and acounty, its tax rate exceeded the other countymeasures. To insure that this one observationdid not distort the regression, we effectivelyremoved the observation by adding a dummyvariable for San Francisco and then testing the1932–33 county tax rate. The tax rate was stillnot significant Alternative measures of fiscaldistress (based on failures to meet debtobligations) were also not significant

There were several other measures on the ballotincluding one allowing special funds from thegasoline tax to be used to pay principal andinterest on highway bonds. This latter measurewas more prominent in the newspapers than theRiley-Stewart amendment and the total numberof voters on this measure exceeded total voteson Riley-Stewart by 4.3 percent However, thepercentage vote by county on this measure hadno explanatory power for the Riley-Stewart votein the baseline regression. This continued to betrue even when all the other variables wereexcluded from the regression. We also tested therobustness of our results by excluding theProposition 9 variable and adding a dummyvariable for the urban counties of Los Angelesand San Francisco. These alternativespecifications did not change the basic results.

The regressions suggest that the vote wasconsistent with the direct economic interests ofthe counties and that there is no evidence insupport of the view that voters were trying toreduce the size of government. These resultssuggest that the local expenditure limitations inRiley-Stewart were a means of insuring propertytax relief, not a device to cut the existingprovision of government services. However,local expenditure limitations providedimportant psychological support because of onetechnical feature of the initiative. TheRiley-Stewart amendment called for assessmentat ‘‘full cash value’’ because when utilityproperty was returned to the property tax rollsit needed to be assessed at similar values acrosscounties. Since assessments averaged forty-fourpercent of market value statewide, there was

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fear, manifest in newspaper editorials, thatexisting rates would be maintained andproperty tax bills would soar. Expenditurelimitations would prevent this from occurring.As it turned out, the Board of Equalizationchose a 50 percent assessment ratio as ‘‘full cashvalue.’’

Two cautionary notes about the results. First,our test for whether voters wanted to changethe mix of taxation or reduce the size or growthof government is contingent upon our proxiesfor variables measuring government’s size orgrowth. We do not have direct observations onvoters’ preferences for the size of governmentSecond, the regression results do not address theissue of whether the Riley-Stewart amendmentwas engineered by politicians seeking to create amore elastic tax structure to allow governmentspending to continue at rapid rates. While thisis an intriguing possibility (in that spendinggrew rapidly in the 1930s), there is no directevidence in favor of this hypothesis. Indeed, thepoliticians would have had to have fooled thetaxpayer groups who were adamant about theexpenditure limitations in the amendment.There were suggestions, however, that the Boardof Equalization supported Riley-Stewart becauseit gave it a new tax to administer (the retail salestax) and because the creation of the FranchiseTax Board in 1929 had sharply reduced thepowers of the Board.34

Alternative Budget Strategies

Were the budget problems of the 1930savoidable? We previously showed thatCalifornia state expenditures grew appreciablyin the early 1930s while tax revenues declined.Could a more modest expenditure pattern haveavoided the budget crisis altogether or was thedrop in tax revenues so severe that budgetproblems were inevitable?

Entering the decade of the 1930s, there was asurplus balance in the General Fund of about$33 million. By 1933, annual current yeardeficits had depleted this surplus. Thisdepletion of the General Fund surplus balancecould have been avoided if the Legislature had

restrained spending in the 1930s. Suppose theLegislature had frozen real spending at its 1930level, thereby maintaining the expenditureincreases of the 1920s. In that case, the GeneralFund would have made it through the GreatDepression without a crisis. (See Table 5,columns on consent real expenditure). Therewould have been a small deficit in 1933, but itssmall size coupled with surpluses in earlieryears would have resulted in a General Fundsurplus balance in 1933 that was larger than thatin 1930.

Since population was growing in the early1930s, freezing the aggregate level of realspending may not be the appropriateexperiment Suppose instead that the Legislaturefroze spending at the 1930 level of real percapita expenditures. This allows for a higherlevel of spending in every year than in theprevious experiment In this case, the 1933 deficitwould have been larger than if real spendingwas frozen and the surpluses in the other yearswould have been smaller. However, theyear-end General Fund surplus would still haverisen between 1930 and 1933. Thus, theLegislature could have avoided the rapiddepletion of the General Fund surplus balancein the early years of the depression withmoderate restraint on spending increases.

While the General Fund was experiencingpersistent, large deficits, the Riley-Stewartamendment overhauled the tax system. Weknow that the changes brought about byRiley-Stewart did not immediately eliminate theGeneral Fund deficits. Did the Riley-Stewartchanges aggravate or alleviate the imbalance inthe General Fund?

Riley-Stewart affected both expenditures and taxrevenues. On the tax side, the gross receipts taxwas phased out and replaced by sales andincome taxes. On the expenditure side,additional spending on education wasmandated.

To determine what would have happened in theGeneral Fund if Riley-Stewart had not beenenacted, we need to make several estimates.First, we need to project what education

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spending would have been in the absence of theadditional mandates of Riley-Stewart We dothis by assuming that education spendingbetween 1934 and 1940 would have grown atthe same rate as it did in the years 1925 to1933—specifically, 5.67 percent per year.

On the tax side, we need to project the revenuesfrom the gross receipts tax in the years 1936 to1940. To make these projections, we estimate therelationship between gross receipts tax revenueand income for the years 1919 to 1935 and use itto project gross receipts revenues for the nextfive years.35 We obtained the best fit byregressing the log of gross receipts revenue onboth the level and change in the log of income.The resulting regression was:

Log(Tax) = –4.12 + .89[Log (Income)] 1.32[Log(∆Income)](2.53) (0.31) (0.48)

Adjusted R-squared = 0.52 [standard errors in parentheses]

Both the income and change in income variablesare significant at the five percent level.

These forecasts from the regression are onlymeant to be a rough estimate of the projectedgross receipts tax. None of the qualitative resultsthat follow depend on the precise numbersgenerated by the forecast For example, addingtwo standard errors of the regression to theforecast does not alter the qualitative results. Inevery year in which we project a deficit usingthe regression we also obtain a deficit using thetax series plus twice the standard error. Theactual revenue raised from the income and salestaxes were much larger than any plausibleforecast of the gross receipts tax.

To obtain the projected tax revenues in theabsence of Riley-Stewart, we subtract actualsales and income tax revenues from totalrevenues and add our gross receipts taxprojection. General Fund balances withoutRiley-Stewart and under alternativeassumptions are reported in Table 5.

From 1930 to 1940, the General Fund ran anactual cumulative deficit of $116 million. By ourprojections, in the absence of Riley-Stewart, thecumulative deficit over this period would have

been significantly higher, $356 million.Moreover, while the actual budget showedsurpluses in 1937 and 1938, in the absence ofRiley-Stewart there still would have beensignificant deficits. Thus, while Riley-Stewartdid not eliminate the budget crisis, it didsignificantly alleviate the crisis.

The final counterfactual question we want toask is whether restrained spending throughoutthe 1930s would have made Riley-Stewartunnecessary. We can do this by comparing ourprojected tax revenues in the absence of Riley-Stewart to the nominal spending levels thatwould have existed if spending had been heldto the 1930 level in real or real per capita terms.

The last two columns in Table 5 report thecumulative deficit in both of these cases. Withspending frozen at the 1930 real per capita level,the General Fund would have run small deficitsfrom 1933 to 1935, but not nearly large enoughto deplete the $33 million surplus which existedin 1930. Moreover, by the end of the decade,the year-end surplus would have grown by$137 million. Freezing spending at the aggregate1930 real level would have resulted in an evenlarger surplus.

The state budget crisis of the 1930s could havebeen avoided by spending restraint Thedepression would have caused small deficits inthe early 1930s, but the surplus that existed in1930 was large enough to weather the crisis.Such spending restraint would have preventedthe need for registered warrants.

Given that the Legislature did increasespending, it is clear that the Riley-Stewartamendment reduced the General Fund deficits.The revenues from sales and income taxes werelarger than the loss of revenue from the grossreceipts tax and the increased spending oneducation combined.

These estimates, of course, assume thatspending was largely unaffected by the passageof Riley-Stewart It is possible that the additionalrevenues from Riley-Stewart allowed spendingto grow faster than it would have otherwisegrown. This is a question of the causal relationsof taxing and spending which is quite difficult

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to address. However, to the extent that spendingwas increased, the deficit-reducing impacts ofRiley-Stewart would naturally have beenreduced.

Conclusion

There are several ironies in California fiscalhistory in the 1930s. First, traditional politicalhistories fail to recognize the radical changesthat occurred. Second, we see another instanceof the law of unintended consequences: actionstaken by voters to change the mix of taxationallowed the government to grow rapidly infuture decades.

The conventional political history of Californiatakes a dim view of the achievements of theRepublican governors in the early 1930s. Forexample, one historian remarked that JamesRolph Jr. was originally a Progressive but ″hisnineteen years had remade him into a typicalbusiness-oriented Republican, and theceremonial functions of his office had convertedhim into a glad-handling official greeter whoexuded irrepressible confidence andoptimism.’’ 36 During his campaign for governorin 1930, he told voters to ‘‘smile with SunnyJim.’’ Although this historian looked morefavorably upon the next governor FrankMerriam, he noted that Merriam is ‘‘usuallywritten off as a ‘reactionary’ by most historians(mainly because he used the National Guardagainst striking longshoreman in San Franciscoin 1934 and state highway patrolman againstSalinas lettuce strikers in 19 36) or as ado-nothing conservative who caused Californiato ‘‘mark time’’ in its struggle against the GreatDepression while the rest of the nation wasmarching forward under the glorious banner ofthe New Deal.’’ 37

Instead, the typical heroes of California politicalhistory in the 1930s were Upton Sinclair, leadingthe EPIC (End Poverty in California) movementin a failed attempt at the governorship, and

Culbert L. Olsen, the Democratic governor atthe end of the 1930s. Olsen had supportedSinclair and looked on his time as governor asan opportunity to redirect politics in California.His administration ended in failure partlybecause he was ‘‘oblivious to the fact that thenational New Deal was over when he tookoffice in January 1939’’ and that Democrats(many of whom were quite conservative) onlycontrolled one house of the State Legislature.38

From the vantage point of fiscal history, theadministrations of Rolph and Merriam were farfrom conservative; indeed, they were radical.This period witnessed a dramatic change inintergovernmental relations, a sharply reducedreliance on the property tax, and theintroduction of two potent new taxes, the salestax and the income tax. To be sure, Rolph andMerriam did not act alone. They were assistedby other state officers and members of theLegislature. But they clearly supported majorand innovative efforts to restructure the fiscalsystem.

Undoubtedly the most significant fiscal legacyof this period was that it reduced reliance on theproperty tax and led to the adoption of incomeand sales taxation. Similar transformations weretaking place in other states. Although it appearsthat voters in California did not recognize thisat the time, their desire to reduce the propertytax burden put into place an extremely elastictax system, thereby permitting a rapidexpansion of government in California since the1930s. A change in the mix of taxes led to anincrease in overall revenues. From 1929 to 1945,assessed valuations increased in the state by21 percent while personal income increased by148 percent The base for the sales and incometax expanded much more rapidly than the basefor the property tax. This provides an exampleof what Higgs terms the ‘‘ratchet’’ effects fromfiscal crises. In this case, the ratchet arose fromfundamental changes in the tax base.

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ENDNOTESThe Journal of Economic History, Vol. No. (September, 1996) The Economic History Association. Allrights reserved. ISSN 0022-0507.

James E. Hartley is Assistant Professor of Economics at Mt. Holyoke College, South Hadley, Mass.01075. Steven M. Sheffrin is Professor of Economics and Director, Center for State and Local Taxation,University of California, Davis, Davis, Ca. 95616. J. David Vasche is Director of Economics and FiscalForecasting in the Office of the Legislative Analyst of California, Sacramento, Ca. 95814.

A version of this paper was presented at the conference ‘‘Fiscal Crises in Historical Perspective,’’hosted by the All-UC Group in Economic History. The authors would like to thank participants atthat conference for their comments. We also would like to thank Paul Rhode for assisting us infinding data sources for California.1 Higgs, Crisis and Leviathan.2 Wallis, ‘‘Birth of Old Federalism.’’3 Ebel and Zimmerman ‘‘Sales Tax Trends,’’ p. 8.4 Haig and Shoup, Sales Tax.5 Ibid., p. 16.6 Rueben, ‘‘Political Economy.’’7 Jensen, ‘‘Property Tax Limitations.’’8 Ibid., p. 6.9 The most significant modification occurred with the passage of Proposition 13 in 1978 which

limited property taxation and increased the role of state expenditures.10 See Tables 1-5, Assembly Interim Committee, 1947, pp. 122–27.11 Stockwell, Studies in California, p. 38.12 Authors’ calculations based on the Assembly Journal, January 17, 1933, pp. 468-69. The ending

year surplus for 1930-31 of $31.5 million was the contemporaneous estimate.13 See his budget addresses in the Assembly Journal, January 22, 1935, pp. 261- 274 and January 14,

1937, pp. 223-31.14 Report of the State Controller, 1941/42, p. xii.15 This data is available from the Reports of the State Controller.16 Assembly Journal, 1933, p. 467. The State Controller made similar claims much earlier.17 Assembly Journal, 1933, pp. 470-74.18 The State Controller’s Reports included tables showing the cost of government which were

divided into ‘‘Fixed Charges’’ and ‘‘Under Legislative and Administrative Control.’’ The ratios inthe text are fixed charges divided by total spending.

19 For data on delinquencies, see Tax Digest, 1935, p. 29. Bieto, Taxpayers in Revolt, provides anin-depth discussion of the organized tax resistance movement in the midwest.

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20 Haig and Shoup, Sales Tax, p. 291 and Stockwell, Studies in California, p. 164.21 See Morosco, ‘‘Proposed School Tax,’’ pp. 307–13, for a discussion of other difficulties with the

proposition.22 For a recent discussion of these issues, see Sheffrin, ‘‘Perceptions of Fairness.’’23 Assembly Journal, 17 January 1933, pp. 466–76.24 Vandegrift, ‘‘Taxes Must Be Reduced,’’ p. 120.25 San Francisco Chronicle 5 June 1933 p. 8 and 20 June 1933 p. 12.26 In analyzing fiscal developments in California, we concur with Brownlee, ‘‘Tax Regimes,’’ in

finding an independent role for political actors in determining actual outcomes.27 Haig and Shoup, Sales Tax, pp. 290–94 and Stockwell, Studies in California’’, pp. 163–75.28 Haig and Shoup, Sales Tax, p. 293.29 This approach is in the spirit of Attiyeh and Engle ‘‘Testing Some Propositions,’’ pp. 131–46 in their

work on the passage of Proposition 13.30 We do not, however, have any variables that differentiate the burden across consumers in the

different counties.31 The 1934–35 county tax rate (which did not contain the utility property) was first adjusted to make

the assessed value equal to 50 percent of market value, which was the level at which all propertywas eventually equalized. This was compared to the estimate of rates after the introduction ofutility property.

32 In other regressions, the data was weighted by the square root of the population. This places largeweight on the observations from Los Angeles and San Francisco. The same variables weresignificant in the weighted as unweighted regressions and no other variables were significant.

33 See Los Angeles Times, 25 June 1933 p. 8 and San Francisco Chronicle 17 June 1933 p. 10.34 Haig and Shoup, Sales Tax, pp. 291–92.35 The income series used for this estimate is realized income from the National Industrial

Conference Board, Economic Record which is available from 1919 to 1938. For 1939 and 1940, weregressed this series on the income series from the U.S. Department of Commerce which isavailable beginning in 1929 and used the regression to make estimates for the last two years. Noneof our qualitative results change if we just use the Commerce series but the sample period for theregression will be very short The Conference Board series allows us to have an additional 11 yearsof data.

36 Putnam, Modern California Politics, p. 15. The prior governor, C. C. Young, was a ProgressiveRepublican but his support for prohibition prevented him from winning re-election.

37 Ibid., p. 22.38 Ibid., p. 25.

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REFERENCES

Assembly Interim Committee On State and Local Taxation, Report, January, 1947, California StatePrinting Office, Sacramento. Assembly Interim Committee on Revenue and Taxation, A Resume ofCalifornia’s Tax Structure 1850-1955 15 March 1956, Assembly of the State of California, Sacramento.

Assembly Journal various issues 1931–37, Assembly of the State of California, Sacramento.

Attiyeh, Richard and Robert F. Engle, ‘‘Testing Some Propositions About Proposition 13,’’ NationalTax Journal, XXXII, (June 1979): 131–146.

Baskerville, Harry H., ‘‘Control of Local Expenditures,’’ Tax Digest’’, v.14, n.4, (1936): 124–27.

Bieto, David T., Taxpayers in Revolt, Chapel Hill and London: The University of North CarolinaPress, 1989.

Brownlee, Elliot, ‘‘Tax Regimes and National Crisis in the United States: An Institutional Overview,’’Paper presented at All U.C. Conference on Fiscal Crises in Historical Perspective, 1994, mimeo, UCSanta Barbara. California Taxpayers’ Association, ‘‘Action is Needed—Not Tears,’’ Tax Digest, v.15,n.12, (1937): 399–400.

Ebel, Robert D. and Christopher Zimmerman, ‘‘Sales Tax Trends and Issues.’’ In Sales Taxation, editedby William F. Fox, Westport, Connecticut and London: Praeger, : 3-25, 1992

Haig, Robert Murray and Carl Shoup, The Sales Tax in the American States, New York: ColumbiaUniversity Press, 1934.

Higgs, Robert, Crisis and Leviathan, New York and Oxford: Oxford University Press, 1987.

Jensen, Jens P., ‘‘Property Tax Limitations,’’ Tax Policy 2 (February 1935) .2–9.

Kidner, Frank L., California Business Cycles, Berkeley and Los Angeles: University of California Press,1946.

Los Angeles Times, 25 June 1933.

Morosco, A. H. ‘‘Proposed School Tax Amendment,’’ Tax Digest, v.10, n.9 (1932): 307–13.

National Industrial Conference Board, Economic Record, 8 September 1939.

Putnam, Jackson K., Modern California Politics, San Francisco: Boyd & Fraser Publishing Compariy,1980

Reports of the State Controller, various issues, Sacramento, Ca.

Reuben, Kim S., ‘‘The Political Economy of State Sales Tax Adoptions: 1930–1938,’’ Paper presented atAll U.C. Conference on Fiscal Crises in Historical Perspective 1994, mimeo, M.I.T.

San Francisco Chronicle, various dates.

Sheffrin, Steven M., ‘‘Perceptions of Fairness in the Crucible of Tax Policy.’’ In Progressivity andIncome Inequaliy, edited by Joel Slemrod, 309–40, New York: Cambridge University Press, 1994.

Stockwell, Marvel M., Studies in California State Taxation 1910–1935, Berkeley, California: Universityof California Press, 1939.

Tax Digest, various issues, 1931–1938, Los Angeles, California

Vandegrift, Rolland A., ‘‘Taxes Must Be Reduced,’’ Tax Digest, v.11, n.4 (1933) : 118–121.

Wallis, John Joseph, ‘‘The Birth of the Old Federalism: Financing the New Deal: 1932-1940,’’ thisJOURNAL, 44, no. 1 (1984): 139–159.

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TABLE 1

CALIFORNIA STATE EXPENDITURES AND REVENUES

DURING THE 1930s

Current Dollars

FiscalYear

Expenditures Revenues

General Fund General Fund

$ Millions Percent Change $ Millions Percent Change

1929/30 65.3 — 65.3 —1930/31 69.1 6.0 69.5 6.41931/32 76.6 10.7 59.8 –13.91932/33 76.5 –0.1 50.1 –16.31933/34 107.3 40.3 83.2 66.11934/35 112.5 4.8 110.0 32.21935/36 142.9 27.0 127.0 15.41936/37 145.0 1.4 159.7 25.81937/38 163.1 12.5 177.0 10.81938/39 207.8 27.4 170.8 –3.51939/40 200.4 –3.6 178.1 4.21940/41 184.8 –7.8 200.0 12.4

Constant 1982 Dollars

FiscalYear


General Fund General Fund

$ Millions Percent Change $ Millions Percent Change

1929/30 427.2 — 427.8 —1930/31 485.7 13.7 488.3 14.11931/32 591.6 21.8 462.3 –5.31932/33 629.8 6.5 412.6 –10.81933/34 886.2 40.7 687.0 66.51934/35 909.8 2.7 889.3 29.51935/36 1143.1 25.6 1015.5 14.21936/37 1126.7 –1.4 1241.5 22.31937/38 1245.6 10.5 1351.3 8.81938/39 1604.0 28.8 1318.5 –2.41939/40 1548.8 –3.4 1376.2 4.41940/41 1390.9 –10.2 1506.3 9.5

Source: Report of Assembly Interim Committee, 1947.

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TABLE 2

EXPENDITURES AND REVENUES PER $100

OF PERSONAL INCOME

FiscalYear

Dollar Amounts Per $100 Of Personal Income


General Fund Total General Fund Total

1929/30 1.29 2.26 1.29 2.271930/31 1.52 2.68 1.54 2.731931/32 2.09 3.51 1.63 3.051932/33 2.43 3.93 1.59 3.161933/34 3.23 4.80 2.51 4.091934/35 3.03 4.49 2.96 4.441935/36 3.31 4.69 2.94 4.521936/37 2.97 4.48 3.27 4.751937/38 3.32 4.96 3.60 5.211938/39 4.23 5.83 3.48 5.121939/40 3.76 5.31 3.34 5.011940/41 2.92 4.33 3.16 4.69

Source: Report of Assembly Interim Committee, 1947.

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TABLE 3

GROWTH RATES IN COST OF GOVERNMENT FOR MAJOR

DIVISIONS OF GOVERNMENT

(all values expressed as a percent)

YearRegula-

tiveConstruc-

tiveEdu-

cationalDevelop-

mental Protective Benevolent Curative Corrective PenalTotalCost

1925/26 9.91 24.66 6.98 –4.34 –3.37 –18.07 8.26 0.28 9.08 9.641926/27 17.61 0.35 5.58 –24.38 –0.41 36.55 –5.76 7.26 20.87 5.071927/28 3.87 7.64 7.55 0.54 6.70 –8.87 19.74 12.10 7.24 6.721928/29 13.52 76.39 6.55 –25.46 63.15 –5.57 –3.94 44.08 6.53 17.651929/30 10.66 12.92 10.41 –13.70 175.67 49.03 10.81 –8.47 17.61 12.471930/31 91.85 5.23 –0.94 9.09 22.75 60.72 –1.53 4.05 10.75 4.111931/32 2.82q 13.02 6.68 4.71 –12.04 –2.10 19.39 –10.43 6.48 6.071932/33 –3.19 –22.02 2.60 –7.25 –41.07 14.31 –22.76 –18.27 –19.89 –7.591933/34 –9.50 9.64 82.87 –10.86 –42.30 –2.19 4.31 –20.58 2.59 31.081934/35 14.05 –0.52 0.86 23.73 25.63 25.90 –8.00 2.32 6.40 4.291935/36 7.92 3.47 –0.75 7.45 7.31 769.56 46.82 5.75 –4.61 18.86

Average:1925/26–1928/29 11.23 27.26 6.66 –13.41 16.52 1.01 4.57 15.93 10.93 9.77

Average:1929/30–1931/32 35.11 10.39 5.38 0.03 62.13 35.89 9.56 –4.95 11.61 7.55

Average:1925/26–1921/32 21.46 20.03 6.12 –7.65 36.06 15.96 6.71 6.98 11.22 8.82

Budget Category Share in 1929/30 Description/Example

Regulative 3.08 Regulatory Boards and Commissions; Dept. of Health; Dept. of Industrial RelationsConstructive 24.47 Public Works; Division of Highways; San Francisco Harbor CommissionEducational 34.01 Schools, Elementary through University

Developmental 1.76 Department of Agriculture; Mining BureauProtective 3.91 Department of Natural Resources; Flood Control

Benevolent 1.16 Aid to Veterans, Orphans and BlindCurative 4.98 Mental Health

Corrective 0.89 Correctional SchoolsPenal 1.78 Prisons; police

Source: Reports of the State Controller.

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TABLE 4

RILEY-STEWART REGRESSIONS

Dependent Variable: Percent Yes Vote

VariableBaselineModel Regressions With Added Variables

Constant .55(.19)

.62(.19)

.63(.18)

.60(.19)

.55(.17)

Percent Vote forProposition 9

.32(.14)

.23(.15)

.30(.15)

.34(.15)

.32(.15)

Average DailyAttendanceProportion

1.99(.68)

1.48(.67)

1.98(.63)

1.88(.67)

1.96(.63)

Reduction in Taxfrom UtilityProperty

.13(.06)

.09(.07)

.11(.06)

.14(.07)

.13(.06)

Total LocalProperty Rate(All Districts)

–.000013(.000013)

County Tax Rate1932–33

.00027(.00053)

–.00029(.00058)

Percentage Changein County Rate1929–30 to 32–33

0.10(.07)

San FranciscoDummy

–.27(.12)

Adjusted R2 .32 .36 .32 .31 .31

Notes: Estimated by OLS over 58 counties. Heteroskedasticity corrected standard errors inparentheses.

Source: see text for detailed descriptions of variables.

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TABLE 5

GENERAL FUND BALANCE PER YEAR UNDER DIFFERENTASSUMPTIONS

FiscalYear

With Riley-Stewart Tax Changes Without Riley-Stewart Tax Changes

Actualexpenditures

Constant realexpenditures

Constant realper capita

expenditures

No Riley-Stewart

expendituresConstant realexpenditures

Constantreal percapita

expenditures

1929/30 96 96 96 96 96 961930/31 371 8954 7007 371 8954 70071931/32 –16733 4817 1739 –16733 4817 17391932/33 –26383 –1495 –3979 –26383 –1495 –39791933/34 –24128 31603 28083 –24096 –1635 –51551934/35 –2533 57116 53359 –27636 644 –31131935/36 –15951 73651 68879 –40240 21317 165451936/37 14763 104705 96673 –20475 42774 347421937/38 13846 121083 110605 –36938 42902 324241938/39 –36986 115373 104306 –86335 38328 272611939/40 –22338 123045 110871 –77776 41350 29176

Cumulative:1929/40 –115976 638947 577639 –356145 198051 136743

Notes: All numbers are in thousands of dollars.Source: Authors’ calculations (see text) and Report of the Assembly Committee on State and Local

Taxation, 1947.

∆


K–12 EDUCATION

∆

K–12 EDUCATIONby Amanda Meeker

Overview of the History of Constitutional ProvisionsDealing with K–12 Education

Education has been a vital interest of the stategovernment in California since the state draftedits first constitution. Through the years, as theculture has changed and politics have shifted,ideas about the state’s role in education alsohave evolved. Over time, there has been anincreasing belief in the importance of education.As the culture has become more sophisticated,the state has been called upon to provide anever-widening array of educationalopportunities for California’s students. Whereonly an elementary education was oncenecessary, now Californians see a need for astrong state-provided university education.Another gradual trend, with a few minorsetbacks, has been toward increasing localcontrol over education. Where the Legislatureonce controlled everything from theorganization of schools to choosing textbooks,now local districts have much greater authority.1

The 1849 Constitution provided that theLegislature should ‘‘encourage by all suitablemeans the promotion of intellectual, scientific,moral, and agricultural improvements,’’ andshould maintain a system of free commonschools to be kept open at least three monthsout of every year. It also specified varioussources of money, such as revenues from landsgranted by Congress, that were to be set asideas a permanent school fund. The article oneducation was similar to that of the IowaConstitution.

Though the education article was not lengthy,the subject was important to the framers atMonterey. They agreed that education wascrucial to the future of the state, and that a freeeducation (for the lower grades) was necessary.Not surprisingly, California’s school system waspoor in 1849, and those families that did have

children with them often had to send theirchildren to the States, Chile, or Peru to beproperly educated.2 By 1850 the new state’seducational system had been founded: onepublic school in Sonoma, with thirty-sevenstudents, and another in Santa Barbara, withtwelve.3

It was initially suggested that the Legislatureshould be allowed to appropriate monies out ofportions of the school fund for other purposesas it saw fit. Some worried that the school lands,out of whose rents money was to come for theschools, might be located in the mining districts,in which case the ‘‘funds derived from themmight rise to such an enormous amount that itmight be doing the other parts of the State aninjustice to appropriate all this revenue toschool purposes.’’ 4 The proviso was voteddown, however, by a 31 to 5 margin by thosewho believed it was important that the moneybe inviolably set aside for education. Theypointed out that ‘‘nothing will have a greatertendency to secure prosperity for our state . . .than by providing for the education of ourposterity’’ and that no amount of money couldever ‘‘secure too great a spread of knowledge.’’ 5

There were practical arguments too. The framersgenerally agreed that California would benefitfrom further immigration. For the state toprosper, it needed people to come who wouldstay, not just dig gold and then return home totheir families.6 A liberal school fund, one manpointed out, would be ‘‘an inducement to amost valuable class of the population to comehere—families having children.’’ 7 Anotherencouraged the bachelors present to vote infavor of a liberal school fund as a means ofattracting families with potentially marriageabledaughters to California.8

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K–12 Education — Page 79

The article on education stood the test of timebetter than some of the other articles, but stillthe revised Constitution of 1879 did make somechanges to it. Like the framers of the originalConstitution, the 1879 delegates thoughteducation was a cornerstone of their state, andtheir changes were aimed at securingeducation’s prominent place.9 One delegatesummed up the general attitude of theconvention: ‘‘it is a right that every childpossesses, to be educated freely by thegovernment.’’ 10 The new constitution increasedthe number of months the schools were toremain in session from three months to six andadded a preliminary sentence, taken from theconstitution of Missouri, to the article,emphasizing the importance of education.11

There was some argument on including thephrase, as some felt that a statement of principlehad no place in a constitution. Among thosewho disagreed, one argued that it wouldprovide the answer if anyone should questionwhy the state furnished free education.12

Despite their commitment to education, many ofthe delegates felt strongly that an elementaryschool education was all that was necessary.This attitude was evident in the section on thestate school fund, which was retained from the1849 constitution. Although the newconstitution provided that the public schoolsystem could include high schools, technicalschools, and teacher training schools, it alsospecified that all revenue from the school fundwas to go exclusively to the grammar andprimary schools.13 While some argued thatdistricts ought to be allowed to set up any kindof school they desired, the majority believedthat funds should be guaranteed to educatechildren only in the lower grades.14 As onedelegate explained, ‘‘if it is desired to educatebeyond that point, I hold that it is the privilegeof every parent to educate their children up ashigh as they choose . . . but I deny that theState owes that kind of education to thechildren.’’ 15 The prevailing sentiment was:‘‘every child in the State shall receive thebenefits of a common school education—nomore and no less.’’ 16

The general attitude at the 1879 convention wasone of distrust of the state government.Throughout the convention, the delegatessought to put strictures on the Legislature,making certain to specify various acts thatshould be forbidden. In that vein, the delegatesagreed without debate that no religious doctrinecould be taught in any public school.17

Considerable discussion of prohibiting theteaching of foreign languages in the publicschools was a feature of the debates, but nosuch provision was ultimately included. Thedelegates also gave local governmentsconsiderably more control over the schools intheir districts than they had enjoyedpreviously.18 The prevailing opinion wasexpressed by the delegate who proclaimed hishope that all ‘‘amendments tending to centralizepower will be voted down.’’ 19 In keeping withthat perspective, the new constitution gave thelocal boards of education, or boards ofsupervisors where there were no boards ofeducation, the responsibility to choose textbooksfor their district schools and to examine teachersand grant teachers’ certificates, privilegesformerly of the Legislature.20 By these actions,the delegates hoped to avoid the ‘‘corruptinginfluence attached to the private competitionand speculation of the present system.’’ 21

Some were concerned that the relaxation ofcentralized authority would lead to standardsbeing lowered in counties that lacked enoughteachers.22 However, worries about the lack ofuniformity that their restructuring might entailwere generally put aside. One delegate voicedquite the reverse sentiment, asking, ‘‘How canyou allow every one to develop their naturalfaculties if the study has to be equal anduniform for all?’’ 23

Giving local authorities the power to choose thetextbooks evidently did not work very well.During the late nineteenth century, there weremany more school districts than there are today,with many of them being one-room schools.Teachers were not well trained and, as adissenter at the 1879 convention had pointedout, many of the county supervisors, ‘‘selectedwith reference to their competency to deal withcounty roads and such subjects, are not the best

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Page 80 — K–12 Education

men to deal with the schools.’’ 24 As a result, an1884 constitutional amendment put the decisionback at the state level, this time with a newState Board of Education, a body that severaldelegates had advocated in 1879.25 The boardwas to consist of the governor, thesuperintendent of schools, and the principals ofthe state normal schools. The State PrintingOffice would produce the textbooks and sellthem at cost to the students, a measure that alsohad been suggested at the 1879 convention onthe grounds that it would ‘‘forever put an endto the disgraceful squabble between rival bookhouses and the corrupting influence growingtherefrom.’’ 26 Teachers’ examinations andcertificates were left with the local boards.

No important amendment to this sectionoccurred until 1912, when it was specified thatthe State Board of Education should be electedand that textbooks for elementary schoolsshould be provided by the state at no charge.The proponents of free textbooks argued thattextbooks were the most necessary of suppliesto the students and should be free, thus makingthe public schools ‘‘free in fact as well asname.’’ 27 They also suggested that it would‘‘remove the last excuse of selfish parents not tosend their children to school.’’ 28

As schools improved and a good educationbecame increasingly important in Californiasociety, a slow trend in constitutionalamendments began toward supporting widerlevels of education. A 1902 amendmentauthorized the Legislature to provide for aspecial tax to support high schools and technicalschools. A 1920 amendment addedkindergartens to the definition of the schoolsystem. It also specified teacher salaries andmandated that the Legislature provide at least$30 per student into the State School Fund andthat it create a State High School Fund with thesame amount of money per pupil.29 World WarI inflation had made teachers’ salaries less thanadequate, while the war boom had brought newjobs to California. As a result, in 1920 there weremore than 600 schools in the state that lackedteachers, mostly in the rural areas. The goal ofthe amendment was to ‘‘provide a more definite

and adequate support for public schools,’’ andthereby prevent families who could not findsuitable instruction for their children in the ruraldistricts from moving off their farms, whichmight then fall into disuse or be taken over ‘‘byJapanese and other Orientals.’’ 30 By mandatingthe level of state contribution, the proponentsargued, the amendment also halted a trend inwhich the state was shifting the economicburden of the schools onto the counties.31 In1946 the state school system was again revised,this time to include colleges, the amount to beprovided in the School Fund was raised to$120 per student in kindergarten through thecollege level, and teacher salaries were againraised. War was again partially responsible forthe amendment. Immigration to Californiaduring World War II was extremely brisk andbirthrates also were rising. Retired teachers werere-enlisted, new teachers were recruited bylowering the credential standards, and otherstaught two separate shifts of students each day.As the amendment’s proponents said,‘‘California’s public school system is confrontedwith the most serious crisis in its history.’’ 32

They sought to resolve it by increasing funding.In 1952 the amount was again raised, this timeto $180. In 1964 another change was made, thistime a deletion of the section that had been inthe constitution since its beginnings in 1849regarding sources of school revenue. Most of the5.5 million acres granted by Congress in 1853had long since been sold, so the provision thattheir revenues should go into the school fundwas obsolete. According to the argument infavor of deleting the provision, the move wouldnot reduce funding for schools, but wouldmerely eliminate ‘‘unnecessary accountingprocedures.’’ 33

Such constant revisions of specifics made it clearto the 1960s Constitution Revision Commissionthat the article on education needed to be pareddown to basic law. As one report to thecommission concluded, ‘‘Article 9 containsmuch legislative detail’’ and much that is‘‘outmoded and thus obsolete ormeaningless.’’ 34 Accordingly, the commissionrecommended deleting mention of grade levels,specific amounts to be provided to the school

∆


fund, and teachers’ salaries. The redraftedarticle was substantially shorter than it hadbeen, but these three recommendations were notacted upon.

True to the ever-expanding interest in highereducation, much of the revision commission’sdebate centered on the colleges and universities.Nevertheless, the commission did take upvarious aspects of the article that centered onelementary and high school issues. One majortopic of discussion, which never emerged fromthe discussion phase, was whether state fundsshould be provided for students who attendedprivate schools. The ongoing debate over whoshould choose textbooks was renewed duringthe revision commission’s work. Local controlhad again become a rallying cry, with argumentthat in a diverse state such as California, localagencies knew best what was desirable for thelocal children.35 The proponents of local choiceargued, ‘‘the best textbook for a gifted child inBeverly Hills may not suit a rural child in

Coachella with an English languagehandicap.’’ 36 A report to the commissionpointed out that school districts were becomingincreasingly sophisticated and capable ofmaking wise choices for the schools.37 On theother side, proponents of uniformity cited theadvantage to a mobile population if a childcould switch districts and still have the sametexts.38

Most of the revision commission’srecommendations were accepted. In 1970, thevoters approved providing free textbooks forstudents in grades one through eight. A 1976amendment permitted two or more countyboards of education to merge to shareresponsibilities. Additionally, local votersreceived the right to choose whether theircounty superintendents of education should beelected or appointed. The county board ofeducation was given the power to determine thecounty superintendent’s salary.

∆


ENDNOTES

K–12 Education1 Cardinal Goodwin, The Establishment of State Government in California (New York: Macmillan,

1914), 240.2 Delegate Halleck, in J. Ross Browne, Report of the Debates in the Convention of California, on the

Formation of the State Constitution (Washington, DC: John Towers, 1850), 351.3 Goodwin, State Government, 347.4 Delegate Elisha Crosby, in Browne, Report, 204.5 Delegates McCarver and Semple, in Browne, Report, 204.6 Delegate Hoppe, in Browne, Report, 351.7 Delegate Francis Lippett, in Browne, Report, 346–47.8 Delegate John McDougal, in Browne, Report, 353.9 Delegate Joseph Winans, in E. B. Willis and P. K. Stockton, Debates and Proceedings of the

Constitutional Convention of the State of California (Sacramento: State Printing Office, 1881), 1087.10 Delegate Alphonse Vacquerel, in Debates, 1102–03.11 Art. 9, Sec. 5; Art. 9, Sec 1.12 Delegate Lucius Morse, in Debates, 1089.13 Art. 9, Sec. 6.14 For the former view, see Delegate Winans, in Debates, 1099.15 Delegate James Caples, in Debates, 1409.16 Delegate Henry Larkin, in Debates, 1412.17 Debates, 1401; Art. 9, Sec. 8.18 Delegate Larkin, in Debates, 1400.19 Delegate Larkin, in Debates, 1400.20 Art. 9, Sec. 7.21 Delegate O’Sullivan, in Debates, 1401.22 Delegate Eli Blackmer, in Debates, 1400.23 Delegate Vacquerel, in Debates, 1397.24 Delegate C.W. Cross, in Debates, 1476.25 See for example Delegate Blackmer, in Debates, 1400.26 Delegate O’Sullivan, in Debates, 1401.27 Ballot Argument, November 1912.

∆


28 Ibid.29 Art. 9, Sec. 6.30 Ballot Argument, November 1920.31 Ibid.32 Ballot Argument, November 1946.33 Ballot Argument, November 1964.34 Hollis Allen and Conrad Briner, Study of the Educational Provisions of the California State

Constitution, (California Constitution Revision Commission, 1966), 2.35 John FitzRandolph, Article IX Background Study, (California Constitution Revision Commission,

1967), 61.36 Ballot Argument, June 1970.37 Allen & Briner, Educational Provisions,17.38 FitzRandolph, Background Study, 61.

∆


LOCAL GOVERNMENT

An Overview of the History of ConstitutionalProvisions Dealing with Local Government

‘‘Creatures of Statute . . . Children of Trade:The Legal Origins of California Cities

∆

LOCAL GOVERNMENTby Amanda Meeker

An Overview of the History of ConstitutionalProvisions Dealing with Local Government

The 1849 Constitution gave the legislatureconsiderable power over local government,making it responsible for providing a uniformsystem of county and town governments. TheLegislature, not the local authorities, had thepower to incorporate cities and could restricttheir power to tax, assess, borrow, and loan,provisions borrowed from the constitution ofNew York.1 The Legislature could provide forthe election of county boards of supervisors,though all county officers were to be supportedby their respective counties, a provision takenfrom the constitution of Wisconsin. The framersthought it more likely that the localgovernments might oppress the people than thatthe Legislature would do so.2

When the framers decided that the Legislatureshould never create corporations by special act,they added, ‘‘except for political or municipalpurposes.’’ Although there was considerableargument over this section, no one questionedthe advisability of putting the power to createtown governments in the hands of theLegislature.3 Again, there was precedent fortheir decision; the section had been taken nearlyliterally from the constitution of New York.4

It was not long before various provisions in thenew state’s constitution began drawingcriticism. The state was changing rapidly, andthe constitution had been framed for anotherera. People began calling for a revision of thedocument as early as 1857.5 In 1877 the votersapproved a measure providing for a newConstitutional Convention, which was held in1879. The Workingmen’s Party, formed in 1877in San Francisco, played an important role inthe convention preliminaries, and took 51 of the

152 seats at the convention, carrying SanFrancisco, Los Angeles, and Nevada City.6

Though there was a general anti-legislaturesentiment at the convention, the Workingmen’sdelegates were perhaps the most adamantlyopposed to centralized government. As theWorkingmen, led by Dennis Kearney, had beenholding their riotous anti-Chinese, anti-wealthmeetings in the sand lots of San Francisco, theLegislature had been passing special legislationto, among other things, increase San Francisco’spolice force and to appropriate $20,000 in theinterests of the city’s public peace.7 At theconvention, although the Workingmen madeseveral proposals that garnered littleenthusiasm, such as having a unicamerallegislature and abolishing the office oflieutenant governor, their opposition tocentralized power did find broad supportamong the delegates.8

The 1849 Constitution’s provisions for localgovernment earned considerable criticism.Many delegates at the 1879 convention spokestrongly against special legislation, by whichthey primarily meant laws affecting singularmatters on the local level. As one delegate putit, ‘‘there is nothing in the whole state that ismore demanded’’ than ‘‘to cut off speciallegislation.’’ 9 The legislature had been givingconsiderable time to deciding local matters, tothe neglect of more important statewide affairs.According to one delegate, matters ‘‘of vastimportance to the state’’ were pushed asideuntil the end of the session ‘‘and then passed, ifat all, without any consideration.’’ 10 In the mostrecent session, in fact, the legislature had passed572 laws, of which 503 were special legislation.11

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Local Government — Page 87

Additionally, many people felt that theLegislature really had no sense of what wasnecessary on the local level, and should leavethose matters to the people who lived there anddid know what their communities needed. Asone delegate argued, ‘‘special bills were passedoften . . . without any member of the legislatureknowing anything about them except themember who introduced them.’’ 12 Not only wasspecial legislation, in their eyes, ‘‘detrimental tothe interests of counties and townships,’’ but italso was ‘‘one of the greatest sources ofcorruption . . . in our legislative halls.’’ 13 As aresult, the new constitution included aprohibition against special legislation inthirty-three specific instances and in any othercase in which a general law would apply.14 Theprovision was ‘‘designed to reduce [thelegislature’s] labors, so they will be confinedalmost entirely to the perfecting of the codes; to[stop it from] frittering away the people’smoney; to prevent jobbery, and to blot out ofexistence the lobby; and to reduce theLegislature to something like a fundamentalbody.’’ 15 It was pointed out that ‘‘all the morerecent Constitutions’’ were including similarprovisions. 16

Henceforth, the legislature was to provide onlyby general laws for the incorporation of citiesand towns.17 A delegate from San Franciscoexplained that they hoped that this would ‘‘cutoff the log-rolling around the Legislature bymen who are scheming for the offices. One manwants to be County Judge, another Sheriff. . . .In former times the legislative power wasunrestricted. But since then it has been foundnecessary to place restrictions upon theLegislature. It is the policy now to give thepeople more direct control, and take away fromthe Legislature the power to pass speciallaws.’’ 18 Cities and towns were subject only togeneral laws.

San Francisco came away from the conventionwith new powers of self government. Citieswith populations over 100,000 (which includedat the time only San Francisco) were permittedto frame charters for their own government. Theprovisions of the charter would supersede all

special laws that were inconsistent with it.19

San Francisco was singled out because it was aunique entity. No other town even approachedit in population. As one delegate explained,general laws could not ‘‘be broad enough tocover the interests of the people of SanFrancisco.’’ Additionally, of course, the cityvociferously called for rights of self-government.There was a large contingent of delegates fromSan Francisco, one of whom demandedindignantly, ‘‘What reason have these gentlemento give why we should not manage our ownaffairs?’’ 20 The provision for San Franciscomimicked Missouri’s provision for St. Louis. Indeference to fears that a city might adopt an‘‘injudicious’’ charter, and that they weremaking San Francisco into ‘‘an independentsovereignty . . . entirely outside of the controland jurisdiction of the Legislature,’’ however,the constitution did provide that the Legislaturewould have to approve the charter before itcould take effect.21 Interestingly enough, theprovisions favoring San Francisco were notenough to win its support; in the election, thecity did not provide a majority vote for the newconstitution, possibly because merchants,businessmen, and corporations, of which therewere many in the city, generally opposed it.22

While San Francisco and other cities that mightgrow to have populations over 100,000 weregranted a notable increase in power, thecounties did not receive equal rights. UnlikeSan Francisco, the counties were relativelylightly populated and were not well-organized.Many contained no incorporated cities and werecomposed largely of undeveloped land.23 Noone at the convention was vocal in demandingrights for counties, so the issue was notdiscussed. The local government articlerecognized them as ‘‘subdivisions of this state,’’which has been restrictively construed to meanthat they are nothing more than subsidiaries ofthe state.24 Additionally, it was the legislature’sprerogative to establish a uniform system ofcounty governments and to determine theduties and terms of office of county officials.25

While it was suggested that the counties shoulddetermine the duties of their officers, thatproposal was rejected. In opposition to the

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Page 88 — Local Government

suggestion, one delegate complained, ‘‘theLegislature has been so entirely shorn of itspower, that it’s almost a uselessorganization.’’ 26 In theory, the requirement thatthe rules be uniform would prevent any speciallegislation. To avoid any necessity for speciallegislation, the legislature was permitted toclassify the counties by population in order tofix the salaries of the county officials.27 Puttingsalaries in the hands of the Legislature waspartly due to the fear that if wages were leftwith the local boards, those boards might verywell ‘‘so reduce the pay that these officerscannot afford to hold the office.’’ 28 Recentfinancial troubles of one county had brought itto the point where ‘‘if they could have done it,they would not have had a single officer in thecounty.’’ 29 Nevertheless, there were someobjections to putting such broad powers into thehands of the legislature. A delegate pointed outthat the counties had frequently petitioned to beable to form their own townships, and that‘‘local matters should be determined by localofficers.’’ 30

Despite giving these powers to the legislature,the perception remained that ‘‘the object of thepeople in having this convention called . . . wasto have as much of the local legislation takenaway from the Legislature as possible, andgiven to the different counties and cities.’’ 31 Toaddress this object, the counties were grantedthe power to make and enforce all laws ‘‘not inconflict’’ with general state laws.32 Local lawscould, however, be found in conflict withgeneral laws for various reasons, including ifthey duplicated state laws in any way, makingthe grant of power a little less permissive than itappeared.33 Similar limited home ruleprovisions had been common in charters thathad previously been granted in California, andappeared in the 1875 constitution of Missouri.34

An additional restriction prohibited thelegislature from imposing taxes for localpurposes.35

Several other provisions regarding countiesrestricted legislative power. For example, countyseats were not to be moved except by atwo-thirds vote of the people in the county.36

This stipulation was intended to prevent thestate of affairs in which, as one delegate put it,‘‘the county seats have been almost onwheels.’’ 37 As a later report has pointed out,moving county seats was an important issue,since in the nineteenth century the location of acounty seat was critical to economicdevelopment.

Another provision was that no new countycould be created if it had less than 5,000 peopleor if its creation caused another county to haveless than 8,000 people.38 Though there was someargument that the provision would in essenceprevent any new counties from forming, theobject was to prevent indiscriminate creation ofnew counties, in which ‘‘Carpetbaggers go towork and create a new county in order to placethemselves in positions.’’ 39 As a delegateexplained the purpose of the prohibition, it wasintended to ‘‘put the brakes on the very badpractice of dividing up counties for the purposeof making some gentleman’s farm valuable, oraffording places and positions for hungrypoliticians.’’ 40 Another pointed out that thehabit of forming new counties whenever amining excitement occurred had been ‘‘a greatdetriment to the State.’’ 41 Significant problemswith the formation of new counties had in factoccurred. In 1874, for example, Klamath Countywas dissolved, having been so reduced byannexations to neighboring counties that,according to one report, ‘‘little remained . . .except a mountainous area and an almostunpayable debt.’’ 42 It was also pointed out thatthe new constitution should embrace currentpolitical thought on the issue of local versusstate control so that it would not ‘‘be behind theage.’’ 43 An opposing view that there werecounties so large that a man might have totravel 100 miles to the county seat, and thecounty ought to be able to be divided whetheror not it had 5,000 residents, did not sway themajority in their quest to rein in theLegislature.44

The constitution had, of course, not pleasedeveryone, and amendments followed soon afterits adoption. Most headed in the direction ofincreased powers for local governments. Not

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surprisingly, other cities sought the sameadvantages given to San Francisco, and in 1887the ability to frame a charter was granted tocities of 10,000 or more. Still smaller towns thenwanted the same rights, and in 1890 theprovisions were extended to include cities of3,500 or more. Additionally, the charters werenow to supersede all laws inconsistent withthem, not just all ‘‘special laws.’’ As the numberof chartered cities grew, so too did questionsregarding their status in relation to stategovernment. An 1896 amendment provided thatcities and towns were subject to general lawsexcept in municipal affairs, a more liberal grantof power than had been in the section asoriginally adopted. A 1914 amendment placedthe cities even farther from the reach of generallaws by providing that chartered cities andtowns could ‘‘make and enforce all laws andregulations in respect to municipal affairs,subject only to the restrictions and limitationsprovided in their several charters.’’ 45

In 1911 an amendment allowed chartered citiesto establish borough systems of government, inwhich districts could be granted specialmunicipal powers.46 A 1914 amendmentspecified that chartered cities might make andenforce all municipal laws and regulations,subject only to restrictions in their charters,though they were subject to general laws ‘‘in allother matters.’’ 47 In 1922 it was provided thatno city could be annexed to any othermunicipality unless a majority of its votersagreed.48

In the stipulations about forming new counties,increasing population soon outdated thenumbers specified in the 1879 constitution. A1910 amendment provided that the number ofresidents in a new county could not be less than8,000 and no county could be reduced to apopulation of less than 20,000.49 Theamendment came partly in response to a recentsupreme court decision that had held that aspecial law making a county line change wasconstitutional.50 The amendment’s purpose wasto ‘‘make it more difficult to organize newcounties within the state.’’ Several new countieshad been created over the last twenty years, and

the amendment’s proponents argued that‘‘sometimes the new county is promoted largelyas a real estate venture by residents of a localitythat is ambitious to become a county seat.’’ Theamendment, they said, would ‘‘put a stop toefforts to cut the state up into small andimpecunious political subdivisions.’’ 51 In thatstatement they were correct; no new countieswere formed after Imperial in 1907.52

In a reflection of the trend toward more powersfor the cities, counties also began gaining moreautonomy. In 1911 counties were finally giventhe right to adopt charters for theirorganization.53 In part, this addressed problemsthat had persisted since before 1879. Chiefamong these was that legislators were passinglaws affecting counties about which they knewnothing. According to one witness, ‘‘By a timehonored custom of courtesy the framing of thecounty bills is left to the member or membersfrom each county without inquiry.’’ 54 Theproponents of county charters saw the measureas a ‘‘logical growth from the successfuladministration of ‘charter cities’.’’ They pointedout that although the delegates in 1879 hadbelieved that the ‘‘uniform system’’ of countygovernment would be ‘‘impregnable to theassault of those demanding special laws,’’ suchwas not the case. The legislature had used thepermission to classify counties to ‘‘put eachcounty in a class by itself,’’ thus evading theprohibition against special legislation whileachieving the same effect. The amendment’sbackers believed that ‘‘if the people had a voicein their county government . . . special favorsand political ‘plums’ . . . would not be parceledout.’’ 55 The move was in accord with the newprogressive politics in California. Those in favorof the amendment believed that the citizens,newly armed with the initiative, referendum,and recall, could and should actively shape theircounty government.

Amendments in 1933 further strengthened homerule. The provision that the legislature was toestablish a uniform system of countygovernments (Sec. 4) was repealed. Additionally,the county boards of supervisors were given thepower to determine the salaries of all county

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officers other than themselves and the districtattorneys and auditors. The intention was to‘‘bring flexibility, efficiency, and economy tocounty government’’ while also bringing ‘‘thematter closer home.’’ 56

With such constant revisions having addedgreatly to the length and complexity of the localgovernment article, when the constitutionrevision commission began its work in the 1960sit found plenty to change. Even without theamendments, the article had been unwieldy,since in their attempt to check the power of thelegislature, the delegates to the constitutionalconvention of 1879 had loaded the article withprohibitions and specifications. As the revisioncommission pointed out, the local governmentarticle was longer than the entire United StatesConstitution, full of obsolete provisions, andladen with detail that properly belonged instatutory law.57 The rewritten article, approvedby the voters in 1970, pared the article downfrom 22,000 words to 6,000.58 Most of theexcisions dealt with procedure, such as the stepsto frame a charter, or detail, such as the specificinstances in which special legislation wasforbidden. As a report to the commission noted,such ‘‘minute particularization’’ on these topics‘‘perhaps reflects a somewhat anachronisticdistrust of the state legislature.’’ 59 Whilekeeping most of the overall meaning intact, thenew article did make some changes, mostly inthe direction of granting more power to countygovernments.

The role of counties had changed considerablysince the constitution was adopted. A report tothe commission noted, ‘‘the power nowexercised by county governments goes wellbeyond the original conception of the county asa local entity administering state functions. Amodern urban county . . . can’t be accuratelycalled a mere ‘legal subdivision of the state’.’’ 60

As the population of the state increased,especially after 1940, and the trend towardsuburbanization began, the counties began toshoulder responsibilities formerly in the handsof city governments. Such duties as waterconservation, flood control, health services, andlibrary services, once in the realm of the

municipal government, became necessary in thecounties as well.61 An author as early as 1947pointed out that ‘‘today county government inCalifornia operates neither exclusively as aninstrumentality of the state nor as a unit of localself-government. It is in transition with itsfuture course to a certain extent uncharted.’’ 62

Recognizing counties’ increasingly importantfunctions, the new article strengthened localgovernment and allowed it greater flexibility.63

For example, it allowed counties, instead of thelegislature, to fix the salaries of district attorneysand county auditors, allowed counties toestablish new departments without legislativeapproval, and required voter approval for a newcounty to be formed or for counties to beconsolidated. It also made many of the article’sprovisions applicable to both cities andcounties.64 City government was alsostrengthened; the revised article allowed allcities, not just those with populations greaterthan 3,500, to adopt charters and allowed amajority vote, instead of a two thirds vote, torepeal a charter.

Local powers were further strengthened afterthe June 1970 overhaul. An amendment to thenew article came only a few months later, at theNovember 1970 general election. Countygovernments, instead of the legislature, weregiven the power to determine the salaries oftheir members, subject to referendum. Theproponents of the amendment emphasized theimportance of ‘‘home rule,’’ pointing out thatwithout the amendment, ‘‘salaries are borne bylocal taxpayers, yet state legislators tell you howmuch you should be taxed.’’ 65 In 1974 anamendment allowed cities and counties toadopt, amend, or repeal their charters by amajority vote without legislative approval. Thegoal was pragmatic: to eliminate the need forthe legislature to spend time approving charters,none of which had been rejected in the yearssince the provision had been included in the1879 constitution, and to save the costs ofprinting the bills approving the charter actions.Another amendment, approved at the nextelection, allowed county school superintendentsto be either elected or appointed, gave the rightto determine their salaries to the county boards

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of education instead of the legislature, andallowed counties to establish joint boards ofeducation. Such changes might have pleased the

constitution’s framer who said, ‘‘You cannotbring government any too near to thepeople.’’ 66

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ENDNOTES

Local Government1 Cardinal Goodwin, The Establishment of State Government in California (New York: Macmillan,

1914), 239.

2 Delegate Myron Norton, quoted in J. Ross Browne, Report of the Debates in the Convention ofCalifornia, on the Formation of the State Constitution (Washington, DC: John Towers, 1850), 127–28.

3 Browne, Report, 108–110

4 Delegate Winfield Sherwood, in Browne, Report, 110.

5 Ira Cross, History of the Labor Movement in California (Berkeley: University of California Press,1935), 105.

6 Carl Swisher, Motivation and Political Technique in the California Constitutional Convention,1878–79 (New York: Da Capo Press, 1969), 24.

7 Cross, Labor Movement, 110.8 Cross, Labor Movement, 117.9 Delegate William White, in E.B. Willis and P.K. Stockton, Debates and Proceedings of the

Constitutional Convention of the State of California (Sacramento: State Printing Office, 1881), 1271.10 Delegate Samuel Burt, in Debates, 803.11 Ibid.12 Delegate Henry Larkin, in Debates, 104813 Delegate Burt, in Debates, 803.14 Art. 4, Sec. 25.15 Delegate James Reynolds, in Debates, 750.16 Ibid.17 Art. 11, Sec 6.18 Delegate John Hager, in Debates, 1406.19 Art. 11, Sec. 8.20 Delegate Patrick Wellin, in Debates, 1060.21 Delegate Campbell, in Debates, 1407; Delegate James Estee, in Debates, 1407; Art. 11, Sec. 8.22 Cross, Labor Movement, 118.23 Arvo Van Alstyne, Background Study Relating to Article XI: Local Government (San Francisco:

California Constitution Revision Commission, 196–), 19.24 Art. 11, Sec. 1.25 Art. 11, Sec. 4.

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26 Delegate Winans, in Debates, 1271.

27 Art. 11, Sec. 5.

28 Delegate Byron Waters, in Debates, 1050.

29 Ibid.

30 Delegate Hiram Mills, in Debates, 1048.

31 Delegate Joseph Brown, in Debates, 1063.

32 Art. 11, Sec. 11.

33 Governor’s Committee on the Law of Preemption, Report, California State Archives, F3675:192.

34 Leon David and Mark Allen, The Law of Local Government (Los Angeles: np, 1966), 38.

35 Art. 11, Sec. 12.

36 Art. 11, Sec. 2.

37 Delegate Brown, in Debates, 1041.

38 Art. 11, Sec. 3.

39 Delegate W.J. Tinnin, in Debates, 1377.

40 Delegate James Caples, in Debates, 1042.

41 Delegate Larkin, in Debates, 1042.

42 University of California, Los Angeles, Bureau of Governmental Research, County Government inCalifornia (Sacramento: County Supervisors Association of California, ca.1952), 4.

43 Delegate Hager, in Debates, 1406.

44 Delegate L.F. Jones, in Debates, 1046.


46 Art. 11, Sec. 8.

47 Art. 11, Sec. 6.

48 Art. 11, Sec. 7.5b.


50 Wheeler v. Herbert, cited in Van Alstyne, Local Government, 68.

51 Senator Leroy Wright and Senator Henry Willis, Ballot Argument, 1910.

52 University of California, Los Angeles, Bureau of Governmental Research, County Government, 5.

53 Art. 11, Sec. 7.5.

54 Ballot Arguments, November 1911.

55 Ibid.

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56 Ballot Argument, June 1933.57 Ballot Argument, November 1970.58 Ballot Argument, 1966.59 Van Alstyne, Local Government, 16.60 Van Alstyne, Local Government, 58.61 Stuart Hall, County Supervisorial Districting in California (Berkeley: University of California,

Bureau of Public Administration, 1961), 12.62 John Bollens, County Government Organization in California (Berkeley: University of California,

Bureau of Public Administration, 1947), 1.63 Ballot Argument, June 1970.64 Art. 11, as adopted June 1970.65 Ballot Argument, November 1970.66 Larkin, in Debates, 1048.

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Creatures of Statute . . . Children of Trade:The Legal Origins of California Cities

by Peter M. Detwiler 1

The current tensions between the CaliforniaLegislature and municipal leaders over taxation,special legislation, home rule, and the twogroups’ respective roles is nothing new. Fromthe first days of the Legislature in December1849 to the present, legislators and city officialshave argued over these issues. Remarkably, therange of topics remains the same. This briefreview traces the statutory beginnings ofCalifornia cities to explain the long-standingdifferences between the Legislature and cities.

A legacy of legislative interference. Mistrustand meddling marked the CaliforniaLegislature’s relationship with its cities andtowns during the first 30 years of statehood. TheCalifornia Constitution of 1849 permitted aseries of abuses that grew worse until theprinciple of home rule entered the Constitutionof 1879. To understand how the need formunicipal home rule came about, one must firstunderstand the cities’ difficult beginnings.2

Local rule before statehood. When Californiajoined the Union in 1850, it had to transform theinstitutional remnants of Mexican rule and thede facto city governments of the Argonauts into aregular system of local government. Thealcalde — an office that combined the powers ofmayor, magistrate, and sheriff — dominatedMexican institutions. The Rev. Walter Coltonwas Monterey’s alcalde, with substantialauthority over not only the town, but also for300 miles around. The Yankee notions ofseparation of powers and constitutionally-delegated power were not evident in a systemthat relied on personal rule and few writtenstatutes. As more Americans entered California,they characterized the alcaldes as capricious andinstead installed the public values of their homestates.3

As California’s population exploded from 10,000in 1846 to 92,500 in 1850, it exacerbated theproblems of a society without legitimate civil

government. American immigrants becameincreasingly dissatisfied with the Mexicaninstitutions they inherited and with the failureof a succession of military governors to create asystem of civilian government. CommodoreStockton, the second military governor, orderedexisting local governments to continue in office.4

Although Stockton prepared a plan for aterritorial government, including the annualelection of local officials, he never set it inmotion.5 Miners’ districts organized themselvesin eclectic blends of remembered civil law andoften violent frontier justice. ‘‘In brief, the newmining camp was a little republic,’’ wrote JosiahRoyce, ‘‘Practically independent for a time ofthe regular state officials.’’ 6 In the absence offormal civil government, residents of SanFrancisco and other communities simplyignored the military authorities and createdtheir own local institutions. During this‘‘No-Government period,’’ San Francisco electeda 15-member Legislative Assembly whichGeneral Bennet Riley declared illegal in June1849 when he called for the first constitutionalconvention.7

The race to be first. Several of the existingsettlements attempted to legitimize their civicinstitutions when the Legislature met inDecember 1849. These local governments weread hoc arrangements like Sacramento’s, or theinheritors of pueblo government as in LosAngeles and San Jose. Sacramento residents hadadopted their own charter on October 13, 1849.8

Los Angeles residents claimed that Mexican lawhad conferred charter status on them.9

Sacramento’s was the first attempt and a closeexamination of its pursuit of cityhood explainsthe way that California’s first municipalitiesdealt with the Legislature. Assemblyman P. B.Cornwall broached the subject on December 20,1849, by announcing that he intended tointroduce a bill before Christmas to incorporate

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a City of Sacramento. The next day, in the first‘‘State-of-the-State’’ message, Governor Peter H.Burnett charged the Legislature with the issueshe thought needed resolution, including theadoption of a ‘‘comprehensive system’’ forproviding city government.10 Governor Burnettnoted the Legislature’s responsibility under theCalifornia Constitution.11 California’s firstgovernor had a strong interest inintergovernmental relations.

Cornwall duly introduced his bill forSacramento’s incorporation on Christmas Eve,and on December 28 introduced a citizens’petition for incorporation. A second petitionarrived New Year’s Eve.12 The AssemblyCommittee on Corporations considered all threeproposals and rapidly reported back on January9, 1850. The Committee recommended two bills:a specific incorporation bill for Sacramento anda bill creating a uniform procedure forincorporating cities and villages. Although itrecognized the ‘‘evils’’ of special incorporationbills, the Committee said that a separate act wasjustified in Sacramento’s case because theuniform procedure for forming a ‘‘small inlandvillage’’ did not fit the needs of ‘‘a largecommercial sea-port town.’’ The Committeeconcluded that the uniform bill would meanthat very few special acts would be needed.13

The Assembly Committee’s argument againstspecial incorporation acts must not havepersuaded everyone because Senator AlexanderW. Hope introduced a special bill for LosAngeles on January 14.14 The fate of Hope’s billfor Los Angeles became closely linked withCornwall’s Sacramento bill which the Assemblytabled the next day.15 Further amendmentsresulted in the Assembly approving theSacramento bill unanimously on January 21.16 Inwhat appears to have been a race to incorporatethe first city, the Senate approved the LosAngeles bill on January 24, sent it to theAssembly which considered it, amended it,suspended the deadline rules, and passed it.The Senate reciprocated by passing theSacramento bill, all on the same day.17

Curiously, the rapid tandem progress of the twospecial incorporation bills slowed down with

the Los Angles bill reaching Governor Burnetton February 1, but the Sacramento bill not untilFebruary 11.18 This delay, however, actuallyhelped Sacramento’s cause.

Governor Burnett vetoed the Los Angelesspecial incorporation bill on February 8 withtwo main objections: expediency andconstitutionality.19 The Governor’s lengthy vetomessage noted the experience of other stateswhere special acts produced ‘‘great and seriousevils.’’ Comparison of special incorporation actsshows, Burnett argued, that they ‘‘are the samein substance’’ and the repetition just raiseslegislative costs as members must either wastetime studying each one, or vote ‘‘at random andthus permit abuses to creep in.’’ Instead, Burnettwanted a ‘‘comprehensive Act’’ to save ‘‘time,labor, and expenses, and in the end be far morebeneficial and understood.’’

Not content merely to exhort, the Governoroutlined his own recommendations for auniform procedure. Such a law, Burnett wrote,should distinguish between villages and citiesand that cities would have ‘‘to contain a givenpopulation.’’ The notion of a minimumpopulation for incorporation would persist instate laws until 1977.20 Noting thatincorporation attempts would arise when theLegislature was not meeting, Governor Burnettsuggested that the Legislature delegate thereview of incorporations to the County Courts.This move would not be a delegation of thelegislative power over incorporation to thejudiciary, he claimed, because a Court wouldonly check the size of the population; aninvestigation, not a legislative act.

Six years later, when the issue reached theCalifornia Supreme Court, the justices swiftlyrejected Burnett’s reasoning.21 Burnett’s vetomessage went on to recommend two classes ofmunicipalities based on location: ‘‘cities uponnavigable waters’’ and ‘‘cities inland,’’ becausethey needed different powers. There was noreason to give all cities the same powers, hesaid, because some of ‘‘those powers wouldsimply remain dormant.’’ If a specific needarose, ‘‘a short special act could be passed forthat additional purpose.’’

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Burnett’s second objection to the Los Angelesspecial incorporation bill was the limited powerto taxation that it conferred on municipalofficials. Referring to Article IV, Section 3 of the1849 Constitution, the Governor argued thatonly the Legislature had the power to tax andthat the bill’s requirement for a majority ofvoters to approve a city tax rate failed to protectminority rights. He also worried that the powerto widen city streets without compensation toproperty owners was confiscation. In closing,Burnett said that he vetoed the Los Angeles billonly because of his objection to unlimitedtaxation, and would not have vetoed itotherwise.

The Senate was apparently unimpressed withBurnett’s reasons because five days later itoverrode his veto by a vote of 11 to 0.22 TheAssembly failed to gain the two-thirds voteneeded to override the veto. On February 14 thevote was 14 to 11, and the next day it was 16 to12.23

Following the success of his veto of the LosAngeles bill, Governor Burnett also vetoed theSacramento incorporation bill on February 21with a veto message that was nearly identical tothe first.24 The significant difference was theaddition of a new constitutional argument. TheGovernor cited Article IV, Section 31 of the 1849Constitution which permitted special actmunicipal incorporations and reached threeconclusions: (1) a municipal corporation is theonly type of corporation that the Legislaturecould create by special act; (2) only municipalcorporations and not private corporations maylevy taxes; and, (3) the Legislature must restrictmunicipal corporations’ tax powers because noone else can. Despite the Governor’s additionalconcerns, on February 26 the Assemblyoverrode the veto by a vote of 16 to 5, as did theSenate on a 9 to 2 vote.25 Sacramento becameCalifornia’s first incorporated city.26

Uniform laws. The Legislature took GovernorBurnett’s advice seriously, however, andproceeded to pass two uniform laws: one forcities, the other for towns. The Cities Actrequired new cities to have a minimum of 2,000residents and limited their area to four square

miles. The Act described two procedures forincorporation: the Legislature could create newcities, or residents could petition the CountyCourt. The inclusion of both methodsrepresented a compromise betweenincorporation by special act and the Governor’srecommendation for Court participation.Regardless of their initiation, all new citieswould be governed according to the uniformpowers in the Act. The new law gavecommunities some latitude regarding the size oftheir Common Council which could have as fewas seven or as many as 20 members. TheGovernor’s objection to unlimited taxing powerwas countered by restricting cities’ propertytaxes to 2% of assessed valuation.27 Thehistorical irony is discovering one of localgovernment’s earliest controversies re-enacted130 years later in 1978 when Proposition 13limited all local property taxes to 1% of assessedvaluation.28

Communities immediately took advantage ofthe new uniform law and the Legislaturecreated three new cities under the Act: Sonomaand Los Angeles on April 4 and Santa Barbaraon April 9.29 But even after the uniform Act’sadoption, the Legislature passed specialincorporation acts for Benecia, San Diego, SanJose, Monterey, and San Francisco.30 GovernorBurnett did not veto these special acts probablybecause many of them included the restrictionsthat he called for in his earlier veto messages.The San Diego and San Jose bills, for example,limited property taxes to 1% of assessed value, arestriction tougher than the limit in the uniformlaw.

The Towns Act was similar to the uniform lawfor cities in many respects. A town required atleast 200 inhabitants and could cover up to threesquare miles. A petition to incorporate could bepresented to the County Court or to theGovernor if the Court had yet to be organized.The local governing body was a five-memberBoard of Trustees. The law limited a town’staxing authority to one-half percent of assessedvalue.31 In 1855, the Legislature raised this limitto 1% and, reflecting the needs of the times,allowed towns to regulate bars, levy a $6 annual

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tax on dogs, and elect a town recorder to judgeinfractions of local ordinances.32

In 1856, the California Supreme Court declaredthe Towns Act unconstitutional, dismantling thecompromise that Governor Burnett had builtwith the Legislature. The Court held that theLegislature improperly delegated the power toincorporate towns to the County Courts;impermissible because the courts are not part ofthe legislative branch. The Supreme Courtinstead suggested that the Legislature delegatethis legislative responsibility to the countyboard of supervisors or some other body withsimilar powers.33 First reprimanded byGovernor Burnett in 1850 for passing specialacts, the Legislature took his advice andassigned the duty to the County Courts, only tobe rebuked by the Supreme Court in 1856 forimproperly delegating a legislativeresponsibility. In response, the Legislaturerepealed the 1850 statute and adopted a newTowns Act. Virtually identical to its predecessor,the 1856 version delegated the incorporationpower to county boards of supervisors.34 Theessence of this arrangement persists.35

Legislative interference. After the Legislaturesettled the early controversies of how to formcities, it succumbed to pressures by economicinterests and enacted special legislation forcities. Neither the 1849 Constitution nor caselaw from other states precluded the Legislaturefrom meddling in local affairs. Four casesexemplify the Legislature’s abuses in thisperiod. They also explain why the 1879Constitution curbed those practices and howsubsequent legislation evolved into the homerule doctrine.36

The 1859 case of Pattison v. Board of Supervisors ofYuba County37 shows the Legislature’swillingness to substitute its judgement for localofficials’. The Legislature mandated the Yubasupervisors to place on the county ballot aproposition that required the County to investin a railroad. When the Board complied, Mr.Pattison sued. Pattison, a local landowner,feared that Yuba County might have to raise hisproperty taxes if the railroad went bankrupt anddefaulted on the County’s investment. County

attorneys argued that the Legislature could doanything it wanted as long as the CaliforniaConstitution did not specifically prohibit it.Because counties were the state’s agents, theyhad no powers that were inherently their own.Pattison’s attorney countered that theConstitution precluded the state governmentfrom investing in railroads. Further, the countieswere merely agents of the state. Therefore, theLegislature could not require the County to dowhat it could not do itself. This relationshipdistinguished counties from cities, they argued,because ‘‘municipal corporations, on the otherhand, are creatures of statutes, but they are alsochildren of trade.’’ 38

While Mr. Pattison’s attorneys were willing tocarve out a more independent role for cities, theSupreme Court was not. Later in 1859 the Courtruled in People v. Burr that it was constitutionalfor the Legislature to authorize the payment ofclaims against San Francisco in a manner that,in effect, created a new city debt exceeding thecharter limitations on the amount of municipaldebt.39 This conclusion is all the more surprisingbecause San Francisco’s charter, like all others ofthe period, was itself a legislative act.40 TheLegislature’s action had the effect of telling localofficials how to spend the City’s treasury, eventhough they had to exceed the debt limits theLegislature itself had set in the earlier 1850 and1855 San Francisco charters.

The complicated 1871 case of Sinton v.Ashbury41 produced a similar outcome for SanFrancisco. The Legislature directed the countyjudge to pay private individuals out of theCity’s treasury for the cost of extendingMontgomery Street.42 The Legislature overrodethe Governor’s veto, but the assessor stillrefused the judge’s order. The Supreme Courtupheld the validity of the statute that permittedthe Legislature to control municipal funds forindividuals’ gains.

The City of Stockton faced one of the mostegregious cases of legislative meddling thateventually led to home rule charters. In 1869–70,the Legislature directed the City to ask voters todonate $300,000 from the municipal treasury tothe Stockton and Visalia Railroad Company to

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build its line.43 The bill actually named threeprivate individuals to the board of trusteeswhich handled the payment. The Court’sdecision in The Stockton and Visalia Railroad v.The Common Council of the City of Stockton issignificant in its length, covering nearly 60pages when most of the other decisions in 1871were less than ten pages.44 Each of the fourparticipating Supreme Court justices submittedhis own, separate opinion and each seemed tornbetween the structure of the law and his ownsense of fairness. Justice Wallace’s lead opinioneven noted the allegations of corruptmanipulation of the Legislature.45 Nevertheless,he wrote, the law was constitutional andStockton cannot defend its treasury by invokingthe ‘‘spirit of the constitution.’’ Justice Crockettrelied heavily on the principle of stare decisis,that is, deciding a case from an unbroken line ofprecedents. Crockett remarked on Wallace’srecital of rulings in other states.46 JusticeSprague took a similar tack and looked back tothe 1859 Pattison decision.47 Reluctantly, JusticeTemple joined his colleagues in invoking staredecisis, but wrote that he would like to agreewith Stockton.48 Good intentionsnotwithstanding, the City lost and the S.&V.R.R.won its $300,000.

Home rule at last. With legislative meddlingconstitutionally protected, the only permanentremedy was to change the Constitution. The1879 constitutional convention offered theopportunity, and the resulting document carriedthe needed home rule power. The conferencedelegates consulted several examples and thehome rule authority came from the MissouriConstitution which had just been adopted. TheCalifornia Constitution of 1879 prohibitedspecial legislation, banned special actincorporations, and granted the power to framefreeholder charters to communities with at least100,000 people. Only San Francisco qualified in1879 and local politics kept it from adopting afreeholders’ charter until 1898. When theSupreme Court reviewed this power in 1880, itnoted that it was ‘‘manifestly the intention ofthe Constitution to emancipate municipalgovernment from the authority and control

formerly exercised over them by theLegislature.’’ 49

The issues remain. The issues that divided cityofficials and legislators in 1849 are still keypoints in the debate over the proper roles ofstate and local government: property taxes,special bills, and home rule powers. Localproperty tax limits troubled Governor PeterBurnett in 1849 as much as it has vexedgovernors in our own time. Burnett’s principalreason for vetoing Los Angeles’ attempt to bethe state’s first city was his fear of unbridledmunicipal taxes. How ironic to find California’sfirst intergovernmental controversy re-enacted130 years later in 1979 as the Jarvis-GannInitiative, Proposition 13. Burnett’s insistence onregular procedures for incorporating new citiesfinally produced a uniform law, but the tide ofspecial legislation has never really stopped.Even though uniform standards inevitablyrequire adjustment to accommodate uniquecircumstances, the California Legislature stilladopts special bills that promote limitedinterests. The flagrant abuses before 1879 aremerely the most infamous; today’s special billsare exceedingly mild by comparison.

The 30 years’ legacy of legislative interferenceproduced constitutional protections for homerule. This home rule doctrine has become apowerful political myth, invoked to protectcertain interests or to promote others.50

Nevertheless, home rule would not haveemerged in California without the necessaryevils of legislative mistrust and meddling.

California’s cities have two origins: a statutorybasis of legal authority and an economicjustification. Their statutory basis is clear fromthe legislative history in this brief review. Thatcities are centers of economic activity is asobvious as the history of human settlement.The early struggle to mate these dual forcesproduced municipalities that reflect thecharacteristics of both parents.

California cities truly are creatures of statuteand children of trade.

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ENDNOTES

‘‘Creatures of Statute . . . Children of Trade:The Legal Origins of California Cities’’

1 Peter M. Detwiler is a consultant to the California State Senate Committee on Housing and LandUse and teaches in the Graduate Program in Public Policy and Administration at California StateUniversity, Sacramento. He researched and wrote an earlier version of this paper for the CaliforniaConstitutional Revision Commission. The paper was originally part of the ‘‘Small Cities’’ project,co-sponsored by the Institute of Governmental Affairs at UC Davis and Governor’s Office ofPlanning and Research. The author is grateful to Gary D. Rodwell who examined early recordsand court decisions as an undergraduate intern at OPR from the Intergovernmental Managementprogram of the University of Southern California. He also appreciates the patient encouragementof his friends, Dr. Alvin D. Sokolow, Department of Human and Community Development,UC Davis, and J. Fred Silva, Executive Director of the California Constitutional RevisionCommission.

2 A more formal discussion of this period appears in John C. Peppin, ‘‘Municipal Home Rule inCalifornia: I,’’ California Law Review, Vol. XXX, No. 1, pp. 6–34, November 1941.

3 Goodwin, Cardinal, The Establishment of State Government in California 1846–1850, (New York:MacMillan, 1914); Joseph Ellison, ‘‘The Struggle for Civil Government in California,’’ CaliforniaHistorical Society Quarterly, Vol. X, No. 1, pp. 17–18 (1931); Theodore Grivias, MilitaryGovernments in California, 1846–1850, (Glendale: Arthur H. Clark Company, 1963).

4 R. F. Stockton, ‘‘Proclamation To The People of California,’’ August 16, 1846, quoted in J. MadisonCutts, The Conquest of California and New Mexico, (Philadelphia: Carey and Hart, 1847), page122.

5 Cutts, op. cit., page 125 and Rockwell Dennis Hunt, The Genesis of California’s First Constitution(Baltimore: The Johns Hopkins Press, 1895), pp. 19–23.

6 Royce, Josiah, California (Santa Barbara: Peregine Publishers, Inc., 1977), page 221. Royce originallypublished this book in 1886.

7 Hunt, op. cit., pp. 26–27; Ellison, op. cit., pp. 143–145; Royce, op. cit., pp. 202–203; Woodrow JamesHansen, The Search for Authority in California (Oakland: Biobooks, 1960), pp. 88–96; Neal Harlow,California Conquered: War and Peace on the Pacific, 1846–1850, (Berkeley: University of CaliforniaPress, 1982), page 327.

8 Journals of 1850, page 623.9 Ibid., page 87.10 Journals of the Senate and Assembly, 1849–50, page 606. Cornwall represented Sacramento.

Driscoll, James D. and Darryl R. White, List of California’s Constitutional Officers, CongressionalRepresentatives, Members and Sessions of the State Legislature and Justices of the CaliforniaSupreme Court, 1849–1985, (Sacramento: California Legislature, 1985), page 81.

11 California Constitution of 1849, Article IV, Section 37 and Article XI, Section 4.12 Journals, 1849–50, op. cit., pp. 623, 625–26, and 629.13 Ibid., pp. 643–4.

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14 Ibid., page 87. Hope’s Senate district included both Los Angeles and San Diego. Driscoll andWhite, op. cit., page 49.

15 Journals, 1849–50, pp. 660–1.16 Ibid., page 701.17 Ibid., pp. 109, 719–720.18 Ibid., pp. 747 and 841. Assemblyman Cornwall resigned his seat on January 28, 1850, having

served just over a month in office. Driscoll and White, op. cit., page 81. Cornwall’s departure mayexplain why Hope’s bill for Los Angeles continued to move through the legislative process whileCornwall’s Sacramento bill lagged.

19 Journals, 1849–50, op. cit., pp. 137–141.20 When it enacted the Municipal Organization Act of 1977 (formerly Government Code Section

35000, et seq.), the Legislature eliminated a minimum population as a condition of incorporation,delegating the decision of appropriate size to the local agency formation commission (LAFCO).Later, however, the Legislature restored the standard. The Cortese-Knox Local GovernmentReorganization Act of 1985 now requires a new city to have at least 500 registered voters (seeGovernment Code Section 56043).

21 The People v. The Town of Nevada (1856) 6 Cal. 143.22 Journals, 1849–50, op. cit., pp. 151–2.23 Ibid., pp. 855–9.24 Ibid., pp. 890–5.25. Ibid., pp. 183 and 914.26 Statutes of 1850, Chapter 20 (page 70).27 ‘‘An Act to provide for the Incorporation of Cities,’’ Statutes of 1850, Chapter 30 (page 87). A lapse

of record-keeping that drives historians frantic is associated with this Act. The bill is dated March11, 1850, but the Journals of 1850 show that March 18 was probably its real date of enactment;Goodwin, op. cit., page 303.

28 Article XIIIA, Constitution of 1879.29 Statutes of 1850, Chapters 56, 60, and 68 (pp. 150, 155, and 172).30 Ibid., Chapters 45, 46, 47, 50, and 98 (pp. 119, 121, 124, 131, and 223).31 ‘‘An Act to provide for the Incorporation of Towns,’’ Statutes of 1850, Chapter 48 (page 128).32 Statutes of 1855, Chapter 49 (page 57).33 The People v. The Town of Nevada, supra.34 Statutes of 1856, Chapter 133 (page 198). The 1856 Act also contained two other changes from the

1850 statute and its 1855 amendments: A $3,000 limit on town debts, and a ‘‘saving clause″ thatvalidated towns already incorporated. The Court issued Town of Nevada during the April termand the Legislature passed the reformed law on April 19; a swift and direct response.

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35 The Legislature delegated its plenary power over the incorporation of new cities to local agencyformation commissions (LAFCOs) but county boards of supervisors still have the vestigial duty tocall cityhood elections (see Government Code Section 56075).

36 See Peppin, op. cit., pp. 11–19, for a more complete inventory of legislative interference.37 Pattison v. Board of Supervisors of Yuba County (1859) 13 Cal. 175.38 Pattison, supra, 177.39 The People ex rel. Blanding v. Burr, et al. (1859) 13 Cal. 343.40 San Francisco did not get a voter-approved ‘‘home rule’’ charter until 1898. Four previous elections

failed after home rule charters became available in 1880 and before the successful 1898 vote. SeeHoward Lee Martin, The Law and Practice of Municipal Home Rule, (New York: ColumbiaUniversity Press, 1916), Chapter VII.

41 Sinton, et al. v. Ashbury (1871) 41 Cal. 525.42 Statutes of 1869–70, page 146.43 Ibid., page 551.44 The Stockton and Visalia Railroad v. The Common Council of the City of Stockton (1871) 41

Cal. 147.45 S.&V.R.R., supra, 158.46 S.&V.R.R., supra, 197.47 S.&V.R.R., supra, 201 and Pattison, supra.48 S.&V.R.R., supra, 202.49 People v. Hoge, et al. (1880) 55 Cal. 612, 618.50 Sato, Sho, ‘‘ ‘Municipal Affairs’ in California,’’ California Law Review, Vol. 60, No. 4,

pp. 1055–1115, June 1972.

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