The herald., 1894-11-29
CHASING A W1LL-o'-THE- w1sP.

The Republican state central commits
tee has finally decided that Mr.. Budd 10
not entitled to his seat in tho Ruberna-
toriaI chair. 1t has screamed fraud"
until the echoes Of the wild cry have con.
WINGED its dull understanding. Outside
OF the committees environment the jul
dicious are laughing at the proposition,
but the committee, blinded by chagrin
and deaiened by the noise OF its whining
and its wailing, ia oplivious to the states
broad grin and the guffaw reverberating
from Siskiyou to San Diego.
It is proposed by the state committee
to 4hrow the election into the legisla-
ture, which is overwhelmingly Repub-
licsn and as partisan as . majority prac-
tically unanimous can make 1t. The
Stockton Mail, however, clearly demon.
etrates that such action IL unconstitu-
tional, in that the act ucder which the
state committee intends to proceed pro.
vides that upon the application OF any
elector properly made to the senate and
assembly, those bodies shall each pro-
coed to select by lot q committee OF
seven, which committees in joint session
shall decide who lie elected governor, and
the decision shall be final.
In direct contravention Of this act 10
section l OF article III OF the constitu.
ton, which reads as follows:
The powers of the government Of this state
are divided into three separate departments
legislative, executive and judicial; and no per.
son charged with the exercise of powers prop
erly belonging to one OF these departments
shall exercise any functions sppertaining to
either of the others. except as in the constitu-
ton expressly directed or permitted.
Under the provisions OF this section
the judicial department cannot leg;slate.
nor can the legislative department exer-
else judicial functions. except when ex-
pressly provided BY the organic law.
The judicial function of the Legislature
is limited by section OF article Is as
follows:
Each house shall choose its officers and judge
of the qualification, election and return
of Its own members
The senate alone, under section l OF
article vi, is empowered to cit a. court
of impeachment and has the right to
confer upon boards Of supervisors and
county boards of election the power of
exercising certain judicial functions, as
inferior courts. for such purposes. This
is obviously the construction given to
this section by the supreme court.
Section OF article III provides
The returns Of every election for governor
shall be sealed up and transmitted to the seat
of government, directed to the speaker of the
assembly, who shall during the first week of
the session open and publish them in the pres
ence of both houses of the legislature. The
person having the highest number OF votes
shall be governor; but in case any two or more
have an equal and the highest umbsr OF vo es,
the legislature shall, by joint vote of both
houses, choose one OF such persons so having
an equal and the highest number of votes for
governor.
1t is plain that the only powers the
legislature can exercise In respect to
the election OF governor. after the voting
for such officer. is that OF being present
when the speaker of the house performs
the ministerial duty Of opening the re-
turns and publishing the result; and in
Case Of = tic, to eject governor from the
persons having M equal and the high
est number OF votes for that Office. To
attempt anything further, to assume
functions other than those expressly de-
fined by the constitution will be a viola.
ton of the oath of the members so voting.
The proposition that the Legislature
can, in body, or through any commit
tee exercise judicial functions as to any
election, except the election Of a MEM
Der OF the Legislature, is absurd, and the
Republican state committee will prob.
ably retrieve what little sense it pos
sessed before the defeat Of Mr.. Estee
when the constitution 10 lucidly ex-
planned to them by some one more
learned in the law than the leaders of
the Republican party appear to be.
Otherwise they must be permitted to
run their course eventually to butt
their remaining brains out against
the adamant of the state constitution