The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-01-24
SPENCER TO GET OUT.
Judge Langley Promptly Orders
Him Ousted.
Constitution and Law Banded to and
Fro, bat Gordon Wins-Appeal
to Supreme Court.

bench 30 hear the arguments iu the celebrated
Gordoa-5peucsr contest for the Office Of county
clerk
T. Fl. Lindsay opened the argument for the
relator oy stating that the facts were conceded
by both parties, and that these facts were that
the re!ator, 7. w. Gordon. was elected to the
Office OF county clerk last taII-.has
10 TO say that be received the larg.
est numbe, Of yotes-ior the question
as to whether he was legally elected was at
issaer and vas a question 70 be decided by the
court IL was also conceded tha. Mr. Spencer
was elected TO the of ce in 1880 and that there
noquestion as 70 thu legality of Spencer's cleo
ton. The contention on the part OF the defendant
was that no legal election for the Office of
county clerk was held last fall, but no question
OF Illegal votes was involved; il was simply
that under the circumstances no legal election
could be held. Mr.. Lindsay then asked
the cour. to take judicial notice that
the governor had issued proclamation
calling for the las. elections: that the county
commissioners, acting under the provisions of
the law. called an election for county clerk;
that. so far as the people were concerned, their
voice had been heard in these elections, and
that the relator hal received the highest vote.
He continued:
In regard TO the law regulating the holding of
an election. We find that section 35l OF Hills
code was identical, so far as the date OF the
election was concerned, with section Of article
vi. OF the constitution. BY this election day Is
set Tor the Tuesday after the first Monday in
Sovemoer. Previous to loS6 the legislature
passed an enactment changing the date Of
the election Of county officers from March to
January, bat did not change the Gate of the
election. BY section Of the schedule all laws
not repugnaat to the constitution shall remain
IN effect, and the election of district,
legislative, county and precinct officers shall
be held in November and biennially thereafter.
IDS condition OF affairs continued from 1852 10
loS8, but In 1889 the constitution made break
In this condition OF affairs, but not such as 10
repeal the law Just read
Section OF the schedule provides that
county clerk for each county shall be elected at
the election 10 be held for adopting this consti
tuition in lSs9. and section IL that the county
clerk shall bold Office until January, lS9L Sec
ton OF article VI. also reads that
all officers no. otherwise provided for
snail be elected in November. Here is
a law that requires no forced construction to
authorize the election OF county CLERK in No
moer, 1892, and TO answer that there no
authorized election for county clerk in 1872 is a
false assertion. As SOON a county clerk
was appointed he came within the
letter of the law in regard to
the provisions OF the constitution providing
for the election OF district. county and precinct
officers. diieIeD, Significance should be laid
on section of article VI. from that put upon
II By the defendant. "Not otherwise provided
tor'' refers to elections and not officers.
the constitution is elections and not
officers. Upon this construction can there
be any question that the constitution has pro-
Yided Tor the election OF a county clerk
at the last general election? Could the
legislature change this section? Is it not
mandatory in the extreme? This is the con-
struction of the constitution given by the legis-
lature and all the state officers well by the
people. and i, Is plain rule OF law that
where question has received contemporaries
Gus construction. that construction is binding
ufon the court This is a question which has
been passed upon by the whole people OF the
state: elections were held in every county for a
result has been undisputed. Will the
court be persuaded to rule that all
the other county officers were wrong
and not true to their oaths in relinQuishing
the constitution provided for the office OF county
clerk and defined his duties, but were
ton simply because they considered the
section self-executing and anything further
unnecessary This is not private, but pub
lie question and neither MI Gordon nor Mr..
clerk, but the voice OF the people should ex-
press their choice see also the line
co eouns ss'9 e. rh. the statute, sasse'
and 1890 enumerated county clerks among the
county officers, fixing their salaries and duties
and tho,e Of their deputies. So also the statutes
constitution, making the county clerk clerk of
the superior court What could DO
more manaa'oryf Is 'ss it to be pre-
for ali these things concerning county clerks
and neglected 10 enact the necessary law TO
create them If it considered such a law neces-
sary? The supreme court OF the state has passed
upon this question in the case OF McMurray vs.
Hollis, which is not entitled Gordon ". Spencer
anu 10 that extent is no. III point, but il still
throws great light upon the subject.
In this case the court held that sectioa of
article XI was self-executing. In respect to
section " article II we must construe section
latter section the supreme court has held in the
panest terms TO be self-executinc and IN force
until the Legislature makes other provision.
II. B. olauson opened the argument for the
defense by saying that the whole question Is
one OF the construction OF the state constitu-
ton, there is no statute applying TO the elec.
ton OF county clerk. He continued:
This case is the only one which have ever
come across either ii the books or in practice,
III which the court is asked TO construct a
statute and then 10 construe II. The real rule
is: What was meant when this constitution
was framed? when this meaning is found.
your honor is bound 10 carry out what il in
tends. Bef0ie your honor can pass on whether
any OF rs provisions are mandatory, you
must conslaer It's history. Under the
territorial law the duties OF the county
cierK were performed By the clerk of the
district court, and therefore section $50 OF HIs
Code could not have applied To county c.erss
because they did not exist al the time Of its
orIgiaa. passage, and consequently tho
laws Kept IN ioTes By the schedule
provisions refer 20 three sets OF officers First
an acting county clerk Tor short time until tho
election Adopting the constitutions: second. Il
county c.e-A under the constitution ana m
ii tie legislature ha3 time 10 act; an T.
! nha!ly, county clerk whose election aud
duties shall lie nxeI by the Legislature So act
ing. Inc theory of neutrality-suspicious. cOustrue-
ton Is not much strengthened BY d con sidera.
:!oa OF the constitution. FOR election OF county
clerks : nos provided Ior. II may also be lai
GHWa - q TGle that direct provisions execute
them>e.vrs. bu; those lett 10 the legislature re-
qulre sInse4 tent acton by that body.
some 81. use 5 u-ce safy Tor valid election:
ltc!a Ia -ot.us IS not sufficient. TIE COMPLAIN
shows that the telatnr considers SONG
tang csc necessary, ;or he alleges that
he was duly qua.laed, tO0k oath sccor! :
ta->e various acts can b. found. Fac trainers
a.. tae Cgnsl. tuition knew that prior 10 the con.
sflt4aa2 there was 10 such Office - that Of
county Cleck, an hey provided for It's creation
by ihe contribution ani IL p-rpe'uatiou By tho
LEGISLATURES Inc legislature has however,
ta.4eI % 4ct n ira matter.
Jane, k.ater continued :or the defense by re.
i:eratas the contention ;hat s4ere are th-es
Classes + o.l.cers, set forth in NJ -iau.au' 8
argument. lie them went on 10 say that re
ease o. NcA.ryag ~ Il tl4!s Was Mt IN conf: =
Wl.a r1ss View, tAa; n thar case the only
question before the coart vas whether
t1c term al Office nj the county Officers
began IL January nE "a Na.cn. lie said:
TIE .e<.l. IS OF tar election s4s coace+a4 nv
to p+eAt..ss aatt ~ sipe at-oa. L Is -rie
t5l-t -. question 10! tae teEa.:y O the elect au
VS. ,stsr .,scl ~ tle EuHtt H. q guarded WAY
t-ttt IS - a; involved il tae use. Al -.ect4o1
~ i@c - pas Is .i"1 At.l.e- ct rlgEt, tut
.@a g.eci.Qa mast be expressly authorized rs,
II au he'd * 4e = lie AMI IN the Ulai4as,- Or
0efeI - .av. tN .ept an e.est.o7 te Aeli in
F.rst.a;is2 ~ statute or constitutional u-ovEs-