Bigler

This is an application for a mandamus to compel the Secretary of State, Treasurer, and Controller, to keep their offices at the town of San Jose, upon the allegation that it is the Seat of Government.

The Constitution, Art. XI, Sec. 1, fixes the Seat of Government at 'San Jose, but admits of its removal by law, provided such law is passed by two-thirds of all the members elected to each House of the Legislature.

In discussing the question here raised, it is first necessary to notice an Act of the last Legislature, by which the Respondents are required *33 to keep their offices at Sacramento, because it is contended that the «Constitution does not require these officers to transact the business of State at the Seat of Government. If Sacramento is not the Seat of Government, is this law constitutional ?

When the Constitution fixed a place by particular designation as the Seat of Government, and imposed a severe restriction upon its removal, ordinary common sense would lead us to conclude that it meant something; at the same time a universal rale of legal construction prohibits the inference that oar fundamental law had engrafted upon it a mere vain expression. The admitted rule…

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…