Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-11-17
HOLD-OVER SENATORS.
THE CONSTITUTIONAL PROVISIONS
UPON THE SUBJECT.
Letter from Hon. w. III. Parks, who
Holds the Legislative Action to
be Illegal and Void.


from the odd districts elected in 1884, hold
over2 is question that must be settled at
the meeting of the Legislature, next session,
and perhaps it may not be premature at
this time to open the discussion.
Section of Article of the Constitution
provides that Senators shall be chosen for
the term of four years. Section of the
same article makes two exceptions to the
rule: 1t provides that all the Senators
elected at the first election after the adop-
ton of the Constitution shall hold for the
term of three years. The seats of those
elected in 1880 Chose from the districts
having odd numbers) to be vacated at
the expiration of the second wear. so
that one-half of the Senators shall
be elected every two years. The object of
making the Senators elected at the first
election hold three years, was because the
sessions of the Legislature were to be an
nual for the first two wears, and semi
annual thereafter, commencing in 1881 and
in order to provide that the Senate should
be continuous body, one-half holding
over for the term of Senator's four wears,
the other half-the Senators from the odd
numbered Notwithstanding their seats in
two years. Section provides "that the
census taken under the direction of Con-
gress in the year 1880, and every ten wears
thereafter, shall be the basis of fixing and
adjusting the legislative districts. and the
Legislature shall, at the first session after
each census, adjust such districts and reap
portion the representation SO as to preserve
them as nearly equal in population as NAV
be" 1t further provides that until such
districting as herein provided for shall be
made, Senators and Assemblymen shall be
elected by the districts according to the ap-
portionment now provided for by law
1t appears from the above quotations
from the Constitution that its trainers had
provided for all of the contingencies that
were liable 10 arise. First, they fixed the
term of the Senators for four years, with
two exceptions, viz those elected at the
first election after the adoption of the Con-
stituion, who were to hold for three wears
second, these elected from the odd dis
trlcts IN 1882, who were to hold only for
two years. In all other cases the term of
Senator should be four years.
The two exceptions have passed in exact
accordance with the provisions of the Con-
stitution. The Legislature of 1881 1.-THE
first session after the census) failed to re-
apportion the State, leaving the districts
q a00D-
ton of the new Constitution. The next
Legislature OF 1888 undertook to reappor
ton the State into Senatorial and Assem-
bly, districts. making the Act creating the
Assembly districts take effect in the usual
time, but postponing the time when the
Act creating the Senatorial districts should
take effect until July, 1886. with the ex-
pectation that the Senators from the odd
districts elected in 1882 would hold over
until 1886, and at which time they had
provided that those from the odd districts
should be elected for two years only.
The first proposition was usurpation of
power that had never been heard of in the
history of any Legislature in the United
States-an attempt to extend the term of
the office of legislator. The next propo-
sition-to elect the Senators for the odd
districts in 18S6-was equally absurd. and
in direct conflict with the provisions of the
Constitution. In the first instance thew
attempt to lengthen the term of the Sena-
tors two years; in the second instance they
attempt to shorten the term two wears. The
writer of this article raised the question as
to their power in the first instance. The
case was taken to the Court, and it issued a
writ OF mandate compelling the Governor
to order elections in the odd districts in
1884, in accordance with the then existing
long do the Senators of the odd districts
| thus elected hold for?
The old Constitution, under which the
law was framed, provided that the term of
Senator should be four years. The
law under which they were elected pro-
vided that their term should be four wears
The new Constitution provides that the
term of Senator shall be four years, but
the Legislature of 1888 undertook to saw
that the term of those elected for 1884
should only be for two years, thereby short
ening their term two years, or, in other
words, legislating them out of office, which,
in my opinion, is in direct conflict with the
Constitution and the law, and the Act of
1888 is unconstitutional and void. and cleo
tons this year should have been held I'M
der the old law and only from the even dis
tricts.
Ii L am correct in my conclusions, the
election just held to elect Senators is null
and void, with few exceptions. Those
are where the even-numbered districts cor
respond with the districts under the old
law, and are as follows: San joaquin
county was District No 16; Senator Lang
ford has been reelected from that district.
Sacramento county was No. Is, and has
elected two Senators-Dray and Carey. The
district being entitled to two Senators. the
two persons receiving the highest number
of votes must be elected. Nevada county
was No. a, and is entitled to one and one
half Senators. She has elected one-Mr.
Walrath. Placer county is No. %. and has
elected Mr.. Hull.
TheSenate will stand as follows: District
No. l, a P Johnson 8, George Steele 5.
]. d. Spencer (resigned); I, Jas. B. Leroe
and A. w. SAKE; g. George c. Parkinson
9Th again, Egisto Pamieri; IL, Daniel ].
Creighton and Edward F. Drum; 10, ]. NJ.
Days and John l.. Boone; 10, F. C. De
Long; II, Beauvais (deceased); 10, W. B.
Parker and Martin J. Wright; q, G. A.
Chandler; 81, E. G. Hurlburt; 30, C. F.
Foster; the 22d district, A. P Hall; oath,
Walrath; 18th, Dray and Carey; 18th, B. F.
Langford, making total of twenty-three.
with two vacancies in odd districts.
There is an opinion quite generally en-
tertained that a legislative body is the
Judge of the election and qualification of
its own members, and that after they have
so determined all their acts must necessa-
rily be legal. This is only true so far as to
their right to determine who are entitled
to seats. But ii is not conclusive that it is
legally constituted body Laws passed
by it may be called in question on the
grounds that the body is not
legally constituted, and the Courts
may determine whether it is or not.
Or in case of the election of a United
States Senator, as will be the case this COM
ing session, if the question should be
raised in the United States Senate as to the
legality OF the Legislature that elected, it
would undoubtedly go behind the certificate
OF election, and determine whether the
Legislature was legally constituted body
or not. Suppose the question had not been
raised in 1884, and no election had been
held for Senators, and those from the odd
districts. whose term had expired, had met
and performed the duties of Senators-they
being just one-half of the Senate-does any
one doubt for a moment that the same
Court that ordered their successors to be
elected would have held the Senate to be
an unconstitutional body, and consequently
all of the Acts of the Legislature null and
void I? Or does any one doubt for a moment
that when Governor Stanford should have
presented his certificate of election to the
United States Senate, that that body would
have declared his election illegal, and con-
sequently have refused him his seat?
The Chronicle suggests that they would
be {. de fdcto Senators" Who ever heard
of de .fdcto Senator or de .tdeto Con-
gresham?
Suppose, again. that at the last election a
part of the counties had construed the law