Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1891-01-07
TIE VACANT CHAIR.
ELECTION CALLED FOB THE BUTTE
SENATORIAL DISTRICT.
Attorney-General Hart Holds that Sem
stor Jones Cannot Continue to
Hold the ONCE.

Governor Waterman on Monday adj
dressed communication to Attorney
General-elect Hart, asking for his opinion
Is to whether he (the Governor) should
issue call for an election in Butte county.
to fill the vacancy caused by the death of
G. L. Pond. who was elected Senator.
The Governor had requested an opinion
from Attorney. General Johnson some two
weeks ago in regard to the subject, and was
informed the. Senator A. F. Jones would
hold over until his successor was elected
and qualified. and that there was no neces-
sity or issuing proclamation calling for an
election.
General Johnson's opinion was criticised
on all sides, and the Governor concluded to
find out what the new Attorney Generals
views were on the subject. So on yesterday
Mr. Hart rendered the following opinion,
directly the reverse of that of his prede-
cessor:
To has Ercellcncy. r. W. Waterman, Goreraor OF
the State of Cdlif0rRid-SIR: In reply to your com
muuication OF the 5th inst, and request tor an
opinion as TO whether or not an election should
be held for the purpose of electIng Senator to
fill the vacancy occasioned by the death OF
Senator elect q. L. Pond III the Fourth Senate
rial District, Butte county, and as TO whether or
not the Hon. a. +. Jones is entitled to hold on
until his successor is elected ana qualified, l
beg leave to report as follows:
That members of the Senate and Assembly of
the State of California are constitutional officers
and their terms of office cannot be more or less
than fixed by the Constitution itself, and this
fixed term cannot be increased or diminished
by the Legislature or any act of that body.
A Of Arff 7 nf ha ttrrft ION
provides that the term of a Senator shall be
four years. There is no provision of the Con-
| stitntion providing for Senators or Assembly
men holding until their successors are elected
and qualified.
Section 2, Article V of the Constitution pro-
vides that the Governor shall hold his Office fol
four years from and after the first Monday after
the first day of January subsequent to his cleo
ton and until his successor is elected and quail
| fed
Section Il, Article provides that the terms
o. office of the State Controller, Treasurer At.
| torney-General and Surveyor-General shall be
| the same as that of Governor. II is thus seen
that the Constitution provides that certain State
officers shall continue in Office until their sue
cessors are elected and qualified. this also ap
plies to Lieutenant Governor, as is shown by the
! provisions of Section is Article Y. There is nc
| such provision in the Constitution applying TO
Senators and Assemblymen. Therefore am OF
| the opinion that the term OF Office of Senator
| being a fixed period of four years, the term
| ceases at the end of that time and that the
term OF A. r. Jones as senator OF The Fourth
senatorial District terminated at u o'clock NJ
| on the 9Th day of January, 1891.
| have carefully examined the opinion of my
predecessor, Attorney General Johnson, directed
| to the honorable NJ. d. Boruck, your Private
| Secretary, under date of December 5, 1890, and
! after reading the same and examining the law
| in the premises am convinced that his con-
clusion that senator Jones would hold over IN.
| til his successor was elected and qualified is
! wrong and unwarranted by law.
| 1t is true Section $40 of the Polital Code
| provides that every officer must continue to
term has expired, until his successor has quail
| fed but this section does not apply to Sen.
ators and Assemblymen.
The Legislature cannot by any Act extend OF
| limit the term of an officer whose term is fixed
| by the Constitution, and therefore Section $40
| aforesaid, is not operative, SO far as Senator:
| and Assemblymen are concerned
| That section was passed to apply 10 all offices
| created by the Legislature and ali Offices i
| any, where the Constitution failed 10 fix the
| term.
| Section u of Article " of the Constitution
| provides: When vacancies occur in either
| House, the Governor shall issue wr;ts OF elec
| ton to fill such vacancies
| If the opinion of General johnson is correct
! then no vacancy could occur, as the seat would
| occupied, 1t would not be vacant. Under hi
| construction no vacancy would ever exist.
| You therefore have the right to issue writ o
| election for Senator in and for the Fourth Sena
F., torial District, in accordance with the law il
| such cases.
On receipt of the above opinion Gov
ernor Waterman issued a proclamation
calling for special election to be held il
| Butte county on Saturday, January II
1891, 10 elect a successor TO the late Senator
| c. L. Pond, deceased.