The record-union., 1891-10-22
GLENN COUNTY AGAIN.
The Courts Must Determine the Ques-
ton of Its Status.
Governor Markham Grants the Peti-
tion for an Appeal to the Courts
His Reasons Therefor.


have the question involving the legality
OF the formation of the county Of Glenn
appealed from the Attorney Generals
decision to the courts for adjudication,
Ghe Attorney-General having held that
such appeal was not warranted.
The law gives the Executive the power
20 determine issues of this kind, hence
the application referred to.
Governor Markham overrules the At
torney-General in this matter, and in do
ing so explains his reasons as follows:
On the 3lst day of August, 1891, at the
Executive Department of this State, there
appeared before me II. NJ. Alberry of
Colusa and Grove Il. Johnson of Sacra-
mento, attorneys for the petitioners, and
Aylett II. Cotton, attorney for Glenn
County, together with Hon. w. II. H.
Hart, AttOrney-General of the State of
California. The attorneys for the pc
Gitioners then and there made application
Go me, as Governor of this State, for per-
mission to use the name Of the State for
the purpose of legally testing the validity
of the organic Act and all proceedings
Hereunder, whereby Glenn County, so
called, was created. After granting to
each counsel present the full amount of
time desired for the proper presentation
of his views upon this question, it was
taken by me under advisement, and, ow-
ing to its importance, as affecting very
large number of people and their prop
erty rights. | have taken until this time
10 investigate the subject, and believe /
have given it sufficient attention to war
rant me in coming to the conclusions
herein expressed.
Section sos of the Code of Civil Pro-
cedure provides that ''An action may
be brought by the Attorney General in
of q nf
his own information, or upon the COM
plant of private party, against any per-
son who uSurps, intrudeS into, or unlaW-
fully holds or exercises any public office,
civil or military, or any franchise within
this State. And the Attorney General
must bring the action whenever he has
reason to believe that any such office or
franchise has been usurped intruded into,
or unlawfully held or exercised by any
person, or when he is directed to do so by
the Governor"
In this case, application was in fact
made by the petitioners to the Attorney
General who, after full hearing and care
ful investigation, rendered his opinion
IN writing denying the application. Not
satisfied with that opinion and his denial,
application is now made to me for the
same purpose, thereby asking me to do
that which the law officer of the State has
refused to do.
Before passing upon any other ques-
ton, l must first carefully consider my
duty towards that official and the effect
of such policy, should this request be
granted.
1t is claimed by the counsel for Glenn
County that | have no right to review
the action of the Attorney General in
this case; that SO long as petitioners
sought the discretionary power of the
AttoTney-General and were refused,
they are thereby estopped from coming
to me for relief This certainly places
me in a very embarrassing position. !
have read with great care the very able
opinion OF the Attorney-General in this
case, and have studied closely his rea-
sons for denying petitioners request.
am convinced that his opinion is given
without bias or prejudice and is intended
20 meet the whole question fairly and
Justly. But as the whole subject is one
IN which ones honest Judgment should
not be questioned, should /, in the exer-
else of my discretionary powers, arrive
at a conclusion different from that
reached by the Attorney General, it will
not be with feeling of absolute certainty
on my part that | am entirely right and
he wrong. There is no law or set of rules
prescribed to govern either of US in con-
sidering this question. Therefore he
may have been and undoubtedly was
largely influenced by legal considera-
tions and what appeared to him must
naturally be the ultimate decision of the
courts upon the question involved
should the matter be submitted to the
courts, as requested by the petitioners;
and he assumes from a legal standpoint
and as a matter of public policy, that no
such suit out TO be brought. In other
words, ] apprehend from the reading of
his opinion that he has arrived at his de-
Cision in about the same way and upon
about the same general facts and law that
other pttOrT1pUG would consider. mort
were they counseling the people affected
by this controversy.
1t is to be regretted that the people of
the county did not accept his opinion, be
Jeconciled 10 the situation and make the
best of it. But as they do not, and come
TO me with the plea that great injustice
has been done them, and that if / refuse
them this request they have no other re-
dress, etc. etc, / have felt it my duty to
listen and to grant their request, il, in
my judgment, substantial justice would
result therefrom. Let me say here, that
in forming my opinion of what / ought
10 do in the premises, l have considered
many matters which could not have been
before the Attorney-General, but which
of necessity have entered into my de-
cision, and certainly have had weight
with me. For instance, as the Governor
of the State, it became my duty to aD-
prove or veto the bill that created this
county. and i approved it very reluct-
antly for at least two important reasons.
First, / did not think it called for a large
enough percentage of the voters to be
affected by it. a bare majority of the
voters was not, in my opinion, enough
pwo-thirds, or even three-fourths of
the voters OF the new county, ac-
cording to my judgment, ought to have
been required in favor of the creation Of
The new county. Second, i have always
considered the whole question of legis-
lative action upon county division per-
nicious in its effects upon the Legislature,
and that IL should never be resorted to
except in the most meritorious cases. ct
1elt it my duty to approve the bill, not
withstanding all these facts, for the rea-
sons (as explained by Inc at that time)
that it had been before three Legislatures
aud had passed the last two. Therefore
did not feel warranted in vetoing it,
Again, l was called upon TO appoint the
commissioners, five in number, To carry
out the provisions of the Act; and in or
der that no injustice should be done i ap-
pointed two respectable and responsible
citizens who We're in favor of division.
and two who opposed division, and then
allowed both parties to agree upon the
fifth man, who should also be in favor of
division, thereby giving TO the division
lists the majority of the board. This
believed TO be my duty at the time, and /
still adhere TO it.
Now, as the law only required a bare
majority of the voters of the new county to
express their wishes in favor of division
(which in fact was but about one-fourth of
all the voters of the old county of Colusa)
it certainly should require no undue in
huence 10 procure that small number of
votes, if the new county were TO be ere
ated at all. Now, whether it. be true or
not, the petitioners allege that frauds
were committed and illegal voting prac-
ticed, which. if true, affected the election