The herald., 1895-01-08

| shall be sealed up and transmitted to the sc at
| OF government, directed to the speaker OF the
sssempiy, VINO shall, during the hrst week OF
| the session, open and publish tn I'm ia the pres
J ence OF both houses of the legislature. The
person receiving the highest number OF votes
thall be govern 0r; but. In case any two have an
equal and the highest number OF votes. the
| legislature shall, by joint vote OF both houses,
choose one OF such parsons having an eqna,
| aud the hiehest numb OF votes for governor.
This section is the same as 1t was in the orig.
inhl constitution of the state OF Caliiornia, snd
| at the constitu sionat convention OF 1879 the
Terms OF this section were not discussed nhu
! therefore no yisws- of the conventions on Tvs
! terms are OF record. This section declares that
the returns shall be sealed up and transmitted
10 tho seat OF the government, directed to th5
| speaker Of the assembly, who shall, during the
nrst week of tha session, open ana pupilsh
them IN the presence OF bOth houses OF inc
legislature. This section also declares that the
person having the highest number OF votes tas
shown by tbs returnt) shall be governor II
two or more have an equal and the highest
mum Der OF votes the legislature shall theD pro-
coed to elect.
Il is quite certain that this section is self
acting and requires no legislation for lhe eA,
animation of he returns or 10 CONSIDER anu
announce the result Kven If two persons
shall receive an equal number or votes, anu
one OF them should have obtained portloa OF
his Voies in an illegal or improper manner,
there would be no way for the other to make q
contest to show that he had actually received
the grea er nun Der OF votes Notwithstanding
that was 50. the legislature must, according 10
the section quoted, proceed in JOINT con-
yention to vote for one such perlon
for governor. no contest could be
had even In such . case. The section declares
that the person ha wing the highest numbar OF
votes (as shown by the sealed returns transmit
ted to the speaker OF the assembly, shall be
governor The constitution on this point Is
certain, deti1ite and imperative 1t IS the
paramount law of the state, and no act or the
legislature can interfere with or modify the
plain provision Of the constitution upon any
subject on which it treats. the constitution
having treated upon this Subject the moue
therein laid down S TO be followed to the ex-
clusion of ali acts OF the legislature,
am well aware that section z, chspter OF
the political code, sc ctiOns 2SS TO I'D lnclu-
sive provide for contest of the election of
governor, but this entire article is, III my opln'
ION IN as far as it relates to the governor IN
constitutional and void for many reasons,
among which will enumerate the following.
Section OF article OF the constitution,
cited, determines the procedure IN rel renee TO
announcin the resu of the election for gov
ernor. This action declares that the person
receiving the highes number of votes shall be
gover0or After becoming governor person
can be removed only By i'm peach ment, resigna
ton, etc. There is no provision In the constr
ton for impeachiug or removing u governor
because he did not actually receive the highest
Again, chapter ., article 7, political code,
practically constitutes the committee therein Il
political court for the purpose OF determining
the election of a governor who is not II member
OF either tn senate or the assembly, and there
fore IL is conierrlpg judicial rcwers u con such
committee reg3r1ing some person lot mem
Der ot the leg stature. such powers caunot b.
conferred upon Il committee. To do so womb
be infringing upon the judiciary powers OF the
state. The leg islGiive and judicial powers of
the state are vested in separate branches of the
state government, and one can infringe upon
the other only where the constitution so ex-
pressly prov des
Il msy be said that this construction has
had the effect of perpetuating fraud If any ex-
listed, but even If this be so the people have
settled the matter for themselves by virtue OF
the adoption of section OF article OF the
contribution; and il that law ntains no pro
vision providing for the making OF contest, IL
is for the people OF the state to remedy the
law by emeno1ng the constitution. The con-
stiiution having no such provision the legisla-
ture cannot by IA act passed by Itself 1mpart
into the constitution condition which does
not exist therein
As the constitution provides the mode for
announcing the result OF the election, the leg
islature has nothing to DO with IL other than 10
follow the provisi of tide constitution.
Therefore am of opinion that article OF
chapter 2 of the political code, insofar as it
relates to the governor, is unconstitutional, as
il purports to confer upon the legislature, or
committee thereof, judicial power, which,
under the constitution cannOt be DONE 1t is
true the Legislature has power to try contested
elections in reference 10 It's own mem bers, but
that Is power conferred upon the legislature
by the constitution itself but no such power is
reserved to the senate Or assembly in regard to
the governor
am further of the opinion that the returns
of the vote for governor should be canvassed
and announced in accordance with the proyis-
ions OF section of article OF the constitution
and that it is your imperative right to have the
vote so canVassyd. and determined as therein
provided, and that any act of the legislature
attempting TO modify those provisions of the
constitution by interpolalinE into the constitu-
tion u condition not therein contained would
of itself be unconstitutional and voit. VI.
If the carrying out OF this railing may have
the effect some time in the future of perpetual
ting in office person elected by fraud, it can
be remedied only by the people amending their
own organic law of the state Yours respect
fully, WILLIAM H Fl. HART,
Attorney General.