Omaha daily bee., 1890-11-11
CONTEsTING THE GOYERNORSHIP.

CONTESTTNG THE GOVERNORSHIP !.
LINCOLN, Nov 10.-To the Editor of TIE
BEE. Are you not mistaken as regards the
mode Of conducting contest for state Off
GERS. Examine the Revised Statutes for 1889,
chapter Elections, page 46l.
INDEPENDENT
THE BEE comedies that its conclu-
sions rs regards the method of conduct
ing contest for an executive Office
before the legislature were erroneous.
The mistake springs from the fact that
there has never been such contest in
this state and the canvass OF the returns
for state officers always had been here
tofore conducted by the legislature in
the same manner as is the canvass of
the electoral vote by the congress of the
United States.
Our revised statutes do, however,
make broad distinction between the
method OF contesting the election of ex-
ecutive officers and that OF legislative,
judicial and county officers. Under our
statutes the contest for executive officers
is heard and determined by the legisla-
ture in joint convention, with the speaker
Of the house acting as presiding officer.
The preliminary steps to such contests
are the same as those taken in contests
for the election of members of the
legislature Or of judicial and
county officers. The testimony in the
contest over executive officers is trans
mitted to the secretary of state and
through him to the speaker of the house,
and by the speaker to the Legislature,
which by concurrent resolution resolves
itself into court to hear and determine
the issue.
But we may as we'll call attention to
the fact that this statute relating to the
mode of canvassing the vote for execu-
tive officers is somewhat at variance
with the constitution. Section four,
article five, of the constitution, headed
Executive Department" reads as fol-
lows:
The returns Of every election for the Off
GERS of the executive department shall be
sealed up and transmitted by the returning
officers to the secretary Of state, directed to
the speaker of the house of representatives
who shall Immediately after the organization
of the house, and before proceeding to other
business, open and publish the same in the
presence of majority Of each house
OF the legislature, who shall for
that purpose assemble in the hall
of the house of representatives.
The person having the highest number of
votes for either Of said Offices shall be de-
clared duly elected; but if two or more
have an equal ard the highest num-
ber of votes, the legislature shall by
joint vote choose one of such persons
for said Office Contested elections for
all of said Offices shall be determined
by both houses of the legislature by joint
vote in such manner as may be prescribed by
law.
Now the manifest and clear intent of
the constitution is that the function of
the legislature is ministerial first and
judicial later on in case of contest.
The first joint convention is simply to
hear the returns read, publish the same,
(which means make them public) and
declare the persons that receive the
highest number of votes duly elected.
If these returns are attacked on the
ground of fraud or miscount in any
county or precinct, the legislature in
joint convention, acting as judicial body,
is to investigate the charges and deter
mine whether they Offset the majority
by which the candidate who has received
the highest number of votes on the face
of the returns had been declared elected.
1t seems to us, however, that the can
vass and publication of the returns and
declaration of the result on each execu-
tive officer must precede any action the
legislature may have to take in deter
mining the claims of contestants. In
other words every candidate who has
received majority or plurality of the
votes cast for his Office, on the face OF
the returns, certified to by the respect
i've county clerks, must be declared
elected and be given the opportunity to
qualify for the discharge of the duties OF
his Office. If, following such canvass, the
legislature after due investigation
reaches the conclusion that any con-
tested executive officer was not right
fully entitled to his position, they have
the privilege of so decreeing and un-
seating him.