The morning call., 1894-12-18
1t Is Variously Construed by
PartisanS.
AN INTERESTING PROBLEM NOW.
Pending Action of the Legislative
Committee Does Markham Hold
Over or Budd Take Office?


One of the questions which first occurs
is whether Govern ore elect Budd would
take his seat and hold office I'm til the con-
test was settled or whether Governor
Markham would hold the office until that
time.
The code provisions bearing upon dis
puted election for Governor are these:
Section 29S. ANY eector of the State may
con est the election of any person declared
elected Governor or Lieutenant Governor of
the State of California.
Sec. 2S9 Such elector may, within twenty
DAYS aft the declara ion OF the result of the
election. deliver to the presiding officer of eacn
House of the Legislature a verified specifica.
lion of the grounds Of the contest.
In sections 29O and 291 it is provided that
the presiding officer shall Immediately
notify the person or persons whose cleo
ton is contested and also the two houses
of the Legislature.
Sec. 292. Each house must at once choose
seven members OF its own body, in the follow
Ing manner:
L The names of the members, except the
Speaker of the Assembly, written on similar
paper tickets. must be placed in box.
2. The secretary OF the Senate. in the pres
ence OF the senate, md The clerk of the Assem-
bly,, in the presence OF The House, must draw
from heir respective boxes the names Of seven
members of each.
u.
tute committee To try such con ed election,
and for that purpose must hold their meetings
publicly at the seat OF government at such time
ana pl ce as they may designate and may adj
journ from day TO day, or to a day certain, until
such trial is determined. They have power TO
send for persons aud papers and 10 take all
nee ssary means to procure testimony, extend
Ing like privileges to each party 10 the contest
They must report their Judgment 10 the prem.
lses TO both houses OF the Legislature which
report must be entered upon the journals.
Sec 29b. The Judgment committee
thus reported, Is final and conclusive.
There is nothing in the law to show the
limit atlons of the authority of the commit
tee. Whether it shall recount all The bal
lots cast for Governor or those Of certain
pre- cincts only is an unsettled question.
The next Legislature will have a Repub-
lican ms jority of slxty-twO On joint ballot.
This would give the Republicans great
advantage so far as the leg lslative commit
tee to determine the contest is concerned.
Section of article Y of the constitution
says:
The returns of every election for Governor
shall be sealed I'D and transmitted TO the seat
OF government. directed o the Speaker OF the
Assembly. who shall, during the first week of
the session open aud publish them In the
presence of both Houses of the Legislature.
The person having the highest NUMBER Oh votes
shall be Governor.
argument that as Budd received the high
est number of votes on the face of the re-
turns he must be seated.
Republicans urge that Governor Mark
ham will hold Office until the contest is de-
cided. They base their argument on sec
ton of article V of the constitution,
which provides that the Governor shall
hold office for -four years from aud after
the first Monday after the first day of
January subsequent to his election. and
until his successor is elected and quail
fed"
Democrats re1ort that if the Speaker of
the incoming Republican Assembly neg
lects or refuses to publish the returns
during the first week of the session. as re-
Quired by law. Governor-elect Budd
will take the oath of Office before JUS
tice of the Supreme Court and will pro-
coed to take upon himself the duties of the
Office.
Gavin McNab, of the Democratic State
Cen trail Committee and strong partisan
of Budd, doubts whether there will be
contest before the Legislature.
"Prominent attorneys of this city," said
he, latter examining the matter carefully
nave expressed the opinion that the pro-
visions of the Political Code under which
it Is proposed to contest are unconsti-
tutioDal. / refer to the sections providing
for recount by a joint committee of the
two houses. These provisions of the code
ante-date the constitution. The prOvi-
sions of The code are inconsistent with the
enumerative powers of the constitution.
There is nothing in the constitution which
makes the legislative body the judges of
the cleo ion of a Governor or the tribunal
before which contest over That office may
be decided; aud the constitution declares
that the Legislature shall have none other
than the powers specifed.
I'm the opinion of learned legal gentle
ic hla tn - ax,ie b.,
which there may be judicial recount of
The ballots cast 10 this city for Governor,
If such recount be in reality desired"
Mr.. McNab added that Mr.. Budd had
no desire to lake advantage of technicali-
ties. He believed that he was elected, and
that an honest recount would merely con-
firm the fact. He would certainly take his
seat as Governor, and no Speaker of the
Assembly would dare to violate the pro-
visions of the constitution which require
him during the first week of the session to
open and publish the returns. DELHI
erately TO neglect that duty would be a
felony, and. in case of refusal, writ OF
mandamus would speedily compel the
proper declaration of the result. In
Questionably Mr.. Budd viii be seated as
Governor within one week following the
opening Of the Legislature.
The contest, Mr.. McNab declared, would
not be confined to San Francisco, but
q AOSOunt VI tu6 Wuulc
State.
Mr.. McNab added: sit would also
open the question of fraud, and the Re-
publican State Central Committee could be
required to testify as to the expenditure
of $4,000 Of campaign funds deposited in
certain bank OF this city before the cleo
ton. The cost of such a contest would be
enorm0us-hundreds Of thousands of dol
iars-and the taxpayers would have to
foot the bills. The contest might drag
along for many months, or even years.
There is no precedent for such a thing.
So far as has been ascertained there has
never been contested election for Gov
ernor In any State"
"Our committee has only one attorney on
it, and there is not a man who wants an
office. 1t is our fixed opinion shat gross
frauds may be unearthed, and we propose
to start the necessary proceedings" said
Asa r. Wells. one of The special committee
of seven appointed by the Republican
State Central Committee to arrange de-
tails for the recount before the Legisla
ture.
"At the meeting of our campaign COM
mittee on Saturday night John T. Dare,
who was employed as our special attorney
to watch the canvass of votes before the
Election Commissioners, presented his
report. 1t was short but TO the point, set