Texas Attorney General Opinion: V-1132 Page: 3 of 4
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Ron. Allan Shivers, Page 3, (V-1132).
A very clear analogy is also found in the case
of People. e, 9 Cal. App. 148, 98 Pac. 241, 244 (1908),
in whi Chthe Court held:
". . . Nor is there any express provil
sion in the Constitution applicable to the
case at bar providing for the appointment
of a controller in case of a vacancy. It
is true that the Cobstitution provides' in
section 8, art. 5, as we have seen, for the
appointment to fill a vacancy when no mode
is provided 'by the Constitution and law.'
But this is inoperative here, for the rea-
son that a mode has been provided by law for
filling a vacancy. When the Constitution
speaks of a mode provided by 'the Constitu-
tion and lawv it obviously means 'the Con-'
stitution or law.' Of course the law must
be in harmony with the Constitution; in
other words, not opposed to any of its pro-
visions. But we can see nothing that pre-
cludes the-Legislature from specifying what
shall constitute - vacancy in any'off thhlof-
rices for which no provision is made -in the
Constitution, and- providib ow it shall-be
filled. It a true that he provisions of
the constitution are 'mandatory and prohibi-
tory' (article 1,.'g22), but it is a familiar
principle that the organic law provides simply
a limitation upon the power of the Legislature,
which otherwise is supreme. There is no 'man-
date nor prohibition, as we view It, in the'
Constitution that bars the right and author-
ity of the Legislature to provide for the con-
tingencies we have suggested. The people,
therefore, through the lawmaking department
of the government, have the right to exercise
this privilege, which they have not surrendered.
'The declaration in article 4, gl, of the Con-
stitution, "The legislative power of this state
shall be vested in a Senate and Assembly, which
shall be designated the Legislature of the state
of California,"' comprehends the exercise of all
the sovereign authority of the state in matters
which are properly the subject of legislation;
and it is incumbet upon any one who will chal-
lenge an act of the Legislature as being invalid
to show, either that such act is without the
province of iegislation, or that the particular
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Texas. Attorney-General's Office. Texas Attorney General Opinion: V-1132, text, December 13, 1950; (https://texashistory.unt.edu/ark:/67531/metapth265950/m1/3/: accessed March 18, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.