Daily Los Angeles herald., 1879-12-20

To the Hon. Mayor and Council OF
the City of Los angeles:
In the matter of the contest OF J.
r. Briefly for his seat, now occu-
pied by Henry Schumacher, for
Councilman for the unexpired term
of the Second Ward, referred to me
for an opinion as to whether the
present Council has the right to re-
consider the action of the Council
In granting certificate of election
to Henry Schumacher, instead OF
John r. Briefly, I herewith submit
the following opinion:
The Council of the city, by its
resolution, approved November 8,
1879, ordered the holding of a mu-
nicipal election Oh the first Mon
day of December, 1879. The offices
to be elected were three members
of the Board of Education and nine
Counoiimen. The whole number
of Councilmen to be elected was
eight, but by reason of the resig-
nation Of one of the Councilmen Of
the Second Ward, elected in Decem-
ber, 1878, for two years, q vacancy
was caused, and the resolution or
dered an election in this Ward OF
one Councilman, and also one for
the unexpired term.
An election was held, in accord
ance with the resolution, on Dec
ember 2, 1879, and returns made to
the City Council of the election in
the Second Ward, as follows: For
members of Council-J. Kurtz, 2S3;
II. Schumacher, unexpired term,
1873; John r. Briefly, unexpired
term. 180; r. Grand, 95i ]. III. But
Ter, los.
The Council met on the Sth of
December to canvass the returns,
and John r. Briefly offered and
filed protest against the issuance
of q certificate to H. Schumacher
for the unexpired term, and alleg-
ing therein that he had received
more votes than Schumacher; that
the returns were incorrect, and an
examination of the same would
show the truth of his allegations.
The protest was subscribed and
sworn to by Briefly. The
Council declined to entertain the
protest and issued certificate of
election to Schumacher, who took
his seat. The Council then ad-
journed without day and the new
members, elected for the regular
term, took their seats, and, in con-
Junction with the hold-over men,
bers, proceeded to organize by the
election of the proper officers.
At the next regular meeting, on
the 1lth of December, John r..
Briefly again appeared, filed pro-
test against Schumacher holding
his seat, (set forth in his notice
that he, and not Schumacher,
had the highest number OF
votes for the unexpired term,) and
demanded that the Council should
recount the votes, and offering to
prove the truth Of his charge. This
notice was subscribed and sworn to
by him as before.
The Council OF the city of Los
Angeles have the power to receive
and canvas the returns of all elec-
tions authorized by the city char
ter, and shall be the judge other
wise than is set forth in the charter
of the qualifications, elections and
returns of its own members and
other officers elected under the act.
There can be no question then but
that the Council Of the cily, on the
9Th day of December, had right
to go behind the returns of the H.
spector and determine as to who
was legally elected. The Council,
however, declined to do so, not
withstanding sworn affidavit that
the Returning Board made an In
correct return, and the only ques-
tion arising is, as to whether the
new Council, as 1t is called, can In
quire into the legality Of the cleo
ton, after the old Council declined
to do so. I have, after q careful
examination, satisfied myself that
1t can, which conclusion is CONTRA
~ to my first impressions. 1t is
not the policy of the law to throw
too many obstacles in the way OF
investigating the correctness OF
election returns.
The true policy to maintain and
perpetuate the vote by ballot is
found In jealously guarding Its pur.
ity, and in placing no fine-drawn
distractions in the way of testing
election returns charged as false
and fraudulent, and in assuring to
the people by q Jealous, vigilant
and determined investigation OF
election frauds, that there is a saw
ing spirit In public tribunals,
charged with such investigations,
ready to do them justice If their
suffrages have been tampered with
by fraud, or misapprehended
through error. GMcCrary on Elec-
tions, Sec. 3S7.
The party elected to the office OF
Councilman for the unexpired term,
whoever he may be, has right to
hold the office, and, although the
Supreme Court In the case of the
people vs.. Metzker, AZ Cal. 524,
hold that under similar provisions
to that of our charter, courts have
no right to interfere with the ac-
ton Of the City Council when they
have decided as to the qualifica-
tions of Its members, still 1T Is new
ertheless the duty of the Council,
when q proper contest is filed, act
ing as 1t does in the discharge of
this most important duty in judi
eial capacity, to act with the same
fairness and impartiality which
would be expected of Court.
Though the members of the
Council change at each succeeding
election, the Council still remains
the Council of the City of Los An
geles, and it Is the Council, and
not the individual members of the
Council, to whom is delegated the
power to judge of the qualifications
of q member. The individuals of
the Council of to-day may, when
acting In regular session, pass an
ordinance, but it will no be con-
tended that those of another year