Heydenfeldt, J., delivered a dissenting opinion.

It is not my purpose to examine all the errors assigned in this case, or to decide whether the remedy resorted to is the proper one.

This suit is brought for the purpose of determining, judicially, whether San Jose or the City of Sacramento is the capital of the State, and as this question must be sooner or later passed upon by us, in order to settle definitively the rights and duties of the parties litigant, as well as for the information of the other branches of the government, and the final disposition of a vexed question of a public character, we deem it best at once to come to the point.

By the Act of the 25th of March, 1854, requiring the sessions of the Supreme Court to be holden at the Capital of the State, it became the duty of this Court to ascertain, for its own action, the locality of the Seat of Government.

In the exercise of this proper inquiry, a majority of the Court were of the opinion, that the Capital never had been removed from San Jose in accordance with the provisions of the Constitution. From the opinion of the Court so expressed at that time, I differed; but as it was the judicial ascertainment of a fact necessary for its own government, I felt that I had discharged my duty in the premises, and that the opinion of the majority so expressed was not only binding on me as one of the members of the Court, but binding also upon the public. A different case is now presented. The conclusion to which this Court first arrived *25 was not a judicial one, arising in a case properly belonging to its appellate jurisdiction; and however much we may have bqen disposed to regard that opinion as a finality, so far as the Court itself was concerned, it could not have been extended to other cases coming before us for review as an appellate Court.

While I would not have considered myself at liberty to interfere with this question, simply, because by a different organization of the Bench the former opinion has become the minority one, in this case there can be no impropriety in determining the question now for the first time presented to us as an appellate tribunal.

No one can appreciate the necessity of the doctrine of stare decisis more highly than myself, or be more willing to be governed by it. Without a proper adherence to the rule, no certainty of adjudication can ever be attained, and confusion and doubt must invariably follow every change of the Bench that occurs by death or otherwise.

I have already said that this is not a case in which that rule can be invoked, and I am happy to add, that my associate who differs with me in the main conclusion agrees with me upon this point. Having before expressed my opinions in full on this subject, and seeing n orea-, son to alter or change them, I shall simply confine myself to a recapitulation of the grounds then taken.

The first section of the second Article of the Constitution provides, that “ the first session of the Legislature shall be held at the Pueblo de San Jose, which place shall be the permanent Seat of Government until removed by law, provided, however, that two-thirds of all the members elected to each house of the Legislature, shall concur in the passage of the law.”

During the first session of the Legislature, M. G. Vallejo submitted a proposition to give to the State a certain amount of money and land, for public buildings, provided the permanent Seat of Government should be located at Vallejo. For the purpose of ascértaining the sentiments of the State, in reference to the location, an election was directed, which resulted in the selection of Vallejo by a large majority. At the next session of the Legislature, an Act was passed for the permanent location of the Capitol at Vallejo, the provisions of which are as follows:

It is now contended that this Act is void upon its face; in other words, that it appears from the Act that the Legislature located the Seat of Government at a particular place, in consequence of the amount agreed to be paid by said Vallejo; that it amounts to a sale of the Seat of Government, and the Act is unconstitutional. It is furthermore contended, that the conditions of the removal have not been complied with, and that upon the breach of the condition, the Seat of Government, by operation of law, reverted or returned to San Jose.

On examination of the Constitution of the State, it will be observed that there is no limitation upon the power of the Legislature to locate the Seat of Government, “ except as to a tico-thirds votel’ It belongs to and rests in the sound discretion of the Legislature itself, and is not subject to the control of the judicial department of the Government. I cannot assent to the proposition, that because the Legislature has provided in the "Act” removing the Capital to Vallejo, that the said Act shall be void, unless certain stipulations are complied with; that we are bound to infer the Legislature did not exercise their judgment as to the best place for a location. I know of no authority this Court possesses to inquire into the motives of the Legislature in the passage of any law; on the contrary, it has been uniformly held, that they could not be inquired into. What difference is there in this Court attempting to investigate the conduct of individual members ot the Legislature, for the purpose of declaring a law void, and in assuming, from the *27 letter of the statute itself, that the Legislature was actuated by other than correct motives.

Admitting the sole inducement for the removal was the amount to be received by the State, and that the site chosen was not the best one that might have been selected, (an inference which cannot be fairly drawn from the Act itself,) what provision is there in the Constitution of our State to prohibit such a bargain ? I understand the rule of construction to be, that the Legislature may exercise all powers not prohibited to them by the Constitution; except, perhaps, in the single case of acts contrary to natural justice, and even this exception has more foundation in the speculation of moralists, than the decisions of wise jurists. When once a Court undertakes to determine where the line of proper legislation leaves off, it will find itself involved in doubts and difficulties, which can only be solved by the preponderance of the good or evil propensities of the Judges who attempt to define it; a standard by no means certain or satisfactory. It will be vain to search for any provision which would prohibit the State from availing herself of private bounty; and the exercise of this power by the Legislature is neither so enormous in its consequences, nor so greatly at war with the spirit of our institutions, as to call for our interposition.

The Legislature, by the constitutional vote, has passed the Act of removal, and it would seem as though the fact that they had secured to our State, then in its infancy, without funds or credit, so munificent a donation, ought not to be regarded as a wanton abuse of Constitutional power.

If, however, tlie Legislature had no authority to annex any conditions to the removal, or enter into any contract by which the State could be benefitted, in consequence of the location of the Seat of Government, then so much of the Act as refers to and fixes the condition, is unconstitutional. Strike this portion of the section out, and still there would remain the Act of the Legislature, fixing the Seat of Government at Vallejo.

In answer to the second point, it will be observed, that the Act of February 4, 1851, is absolute in terms, and but one of the conditions was to be complied with, viz: giving satisfactory bond before the Act should go into effect. The language is, that “ after the present session of the Legislature, the permanent Seat of Government shall be located *28 at Vallejo,” &c. It can hardly be supposed the Legislature intended to do so unwise an act as to remove the Seat of Government to Vallejo, attended, as it necessarily would be, with great expense to the State, if by operation of law it Would revert to San Jose upon the noncompliance of Gen. Vallejo with his contract; to do so would be to suppose the Legislature guilty of unparalleled recklessness or stupidity. The very object of exacting the bond was to cover any loss which the State might sustain by his failure to provide temporary buildings, while the provision for the Act becoming void on the non-compliance with its conditions, was doubtless intended for the purpose of releasing the State from any fictitious claim which might be brought against her should the Capital afterwards be removed to any other place.

This was the construction given by the succeeding Legislature, and has been acquiesced in ever since. It may not be improper to inquire how we are to know that Gen. Vallejo has not complied with the provisions of his contract, and if we can take judicial notice of the fact. The only evidence we have, is that furnished by the action of the Legislature voluntarily relinquishing all claim against him. This is the first notice, and it would hardly be contended that the State could not relieve him from his obligation, without subjecting itself to the public expense and inconvenience of a removal of the Seat of Government. Four sessions of the Legislature have passed upon the constitutional question now raised, and given to it a practical as well as legislative construction.

Three sessions of the Legislature have been held by virtue of the Act of February 4, 1851. Vested rights have grown up under its provisions, and unless it be constitutional, I hesitate not to say, that by every rule of law, the legislation of the last two years is a dead letter on the statute books.

I hold, that the place is an essential ingredient to correct legislation, as much so, as it is to a proper administration of justice; and if a decision would be coram non judice, because the Court was not holden attire place appointed by law, by a parity of reasoning, the acts of a legislative body done at any other than the appointed place must be equally void. That there can be a defacto Seat of Government, or that the reason which would operate to cause and render obligatory *29 the acts of a defacto officer, can apply to this case, is a proposition -I cannot assent to.

For these reasons, I am of opinion, First, That the Act of February 4, 1851, is not unconstitutional, but on the other hand was a proper exercise of legislative power and discretion, with which we cannot interfere.

Second, That said Act operated as an absolute removal, which was not defeated by the breach of subsequent conditions.

Third, That after the first removal, a majority might remove, and that a majority oí both Houses of the Legislature having passed an Act to that effect, the City of Sacramento is, by law, the legal Capital of the State.

Judgment reversed, with costs.

In this cause, it will not be necessary to notice the numerous points made by counsel as to the regularity of the proceedings below and as to the selection of the remedy, whilst entertaining the Views which I do in regard to other more vital questions connected with the Constitution and laws bearing upon the subject of the Seat of Government. Differing with my predecessor upon the Bench in the conclusions he formerly arrived at in the decision upon this question, and the majority of the Court being thus changed from one opinion to another, I deem it but proper that I should submit my views of the different bearings of the question of the present location of the Seat of Government, in addition to those already so clearly expressed by the Chief Justice of this Court.

There are but three questions necessarily to be answered in determining the location of the Seat of Government.

First, The Act of 1851, removing the Seat of Government from San ■Jose to Vallejo, having been passed by the constitutional majority, is-there anything in the Act itself making it unconstitutional ?

Second, If the law of 1851 was a valid law, did any failure upon the part of General Vallejo to perform the conditions imposed upon him by that law, work, of itself, a reversion of the Seat of Government to San Jose, without further legislative action ?

Third, If the law was constitutional, and a failure to perform the? conditions would not, per se, operate as a removal of the Seat of Gov *30 ernment back to San Jose, were the subsequent laws passed for the removal of the Seat of Government valid, having been passed but by a majority vote ?

It is objected that the Act of 1851 bears evidence upon its face that the location of the Seat of Government at Vallejo was a matter of bargain and sale, was opposed to good morals, and was therefore in violation of the spirit of the Constitution, and void.

It has been a matter of grave discussion with the most eminent jurists as to how far a Court should go in interposing its authority, if it had any authority at all, in pronouncing void Acts of a Legislature upon the ground that they were opposed to the public morals. The weight of opinion appears to be, as it would seem reasonable it should be, that the members of the Legislature that passed the law were the best judges of its moral tendency, and that Courts should so interpret the law, as to relieve it of any vicious meaning it might possess; presuming, as a necessary consequence, that the Legislature could not have intended purposely to pass an Act immoral in its character. I cannot find anything in the Act of 1851 removing the Seat of Government from ■San Jose to Vallejo, which, to my mind, is opposed to good morals, or which evinces recklessness of any character whatsoever. The Legislature saw fit to remove the Seat of Government to Vallejo, and make it permanent there, provided General Vallejo erected suitable buildings for the convenience of the Government, and performed other conditions named in the law.

As the Seat of Government was not a property upon which any individual rights could be based, the Legislature having control over the subject matter, by a two-thirds vote, removed to Vallejo, but, before removing, sought to save to the people at large, the expense of purchasing land upon which to locate the public buildings, and the cost of the erection of the buildings themselves. If this legislation was exceptionable, it does not, to my mind, display that reckless disregard of the rules of morality which would justify this Court in exercising a doubtful authority in pronouncing the law unconstitutional.

Again, deeming the law of 1851 a valid law, the objection is urged that the conditions of the law were not complied with, and that therefore by the terms of the Act itself it was void, and the Seat of Govern *31 ment remained at San Jose, where it was first placed by the Constitution. Under the Act of 1851, the State Government was located at "Vallejo; the different departments of the Government were there, and there they performed their various functions; and the succeeding Legislature treated that as the legal Seat of Government until another removal was had. If General Vallejo failed to comply with the provisions of the Act of 1851, the State Government was no longer bound to remain at Vallejo, and the Act was void as to any rights Vallejo might have acquired under it; but, could this failure to comply with the conditions of the law, of itself, re-establish the Seat of Government at San Jose ?

I think not. The law was passed by the constitutional vote, a removal was had, the Government was actually sitting at Vallejo, and any failure upon the part of General Vallejo to fulfil the conditions of the law, allowed the Government to treat the contract with him as a nullity, and to remove whenever they chose from that place. The law in that event was void as to Vallejo’s right to the Seat of Government; but, was the Government a void whilst it remained at Vallejo ? The Government certainly existed whilst its officers remained at Vallejo, then how destroy the effect of the removal under a valid law, and compel a return to San Jose, unless the department of the Government that passed the law under which the removal was made took further action upon the subject, and ordered a removal back to San Jose ? I deem it a sound rule of construction, to hold no Act of the Legislature entirely void, unless plainly repugnant to the Constitution. The Act of 1851, whilst in force, justified the removal from San Jose to Vallejo— it was then a legal removal, and the Seat of Government having been removed by law, it could not be supposed to move back by the mere operation of a failure of a party named in the law to fulfil its conditions. If there was any doubt upon my mind as to the force of this reasoning, the construction put upon the Act of 1851, by several successive legislative bodies, would have some weight in determining its meaning. The Legislative Department of the Government has continuously regarded that law only as void as to the farther retention of the Seat of Government at Vallejo, and has uniformly treated the act of removal under it as valid. This legislative exposition, I think, *32 should have its due weight with the Court, when it does not clearly appear that it is repugnant to the Constitution, or palpably wrong.

I, therefore, hold that the law removing the Seat of Government from San Jose was valid, and that any failure in the performance of its ■conditions did not defeat the Act of removal, and cause the Seat of Government to revert to, or remain in, San Jose; but, that such failure, if it occurred, as is argued, simply discharged the Government from any obligation to remain at Yallejo. The subsequent removals of the Seat of Government having been effected by a majority vote of both branches of the Legislature, I deem to have been regular, since I regard it as clear that the Legislature of the State has full power to legislate upon all proper matters of legislation, by its usual forms and majorities, when not prohibited by the language of the Constitution. The constitutional prohibition which requires a two-thirds vote, applies to a removal from San Jose, which vote was given at the time of the removal from that place. No necessary implication arises, in my opinion, that it should require a two-thirds vote in making any other removal, unless the prohibition of the Constitution, requiring a two-thirds vote, clearly applied to all removals of the Seat of Government. I would be unwilling, from the reading of the Constitution, to disturb the different laws passed upon this subject, and impose a doubtful restraint upon the exercise of the powers of a co-ordinate branch of the Government.

I, therefore, concur in opinion with the Chief Justice of this Court, and hold the city of Sacramento to be by law the Capital of the State, and concur in the opinion that the judgment below be reversed with costs.