The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1895-01-08
ESTEE MEN, HOWEVER, ARE All WORK
Committeeman Preparing a Plan Under
Which They Hope to Seat
Republican Governor.

However, the special committee here to
represent the Republican State organiza-
ton and bring on contest in the interest
of Estee went right on about its business.
Mr.. Ross, as spokesman for the committee,
declared that Harris opinion was not GOOD
law. He and bis colleagues then hurried
around among the Republican members
again to urge the immediate passage of an
act under which Budd would be prevented
from taking the oath of Office. They are
imply carrying out the plan formulated
last Friday at the meeting of the Republi-
can State Central Committee.
When the Republicans reassem bled in
caucus tonight the preliminary step in the
plan by which 1t is hoped to seat a Repub-
lican Governor was disclosed in the form
Of a concurrent resolution introduced In
the Assembly caucus by Timothy Guy
Phelps. The whole guberDatorial conten-
tion was brought up by the introduction
of this measure. which is concurrent
resolution, calling for the appointment of
a non-partisan committee Of five members
from each House TO investigate the recent
election aud also providing that Governor
elect Bud be not iDaugurated pending the
Investigation by the committee.
Phslps attempted to force the matter be-
fore the caucus, but met with unexpected
opposition. The consideration of the reso-
luton was stoutly opposed. twas argued
that the caucus had been called to settle
matters of patronage, and there were sew
eral speakers who refused to be bound by
the action of the caucus on matters out
side OF those for consideration of which il
was called.
After long discussion, consideration Of
The Phelps resolution was postponed IN til
tomorrow morning at 9 O'Clock. to which
time the caucus adjourned.
1t has also been stated that a similar
resolution would be laid before the Senate
caucus by Denison of Alameda, and
when the Assembly caucus adjourned and
it was learned that no decisive action had
been taken, The throng of waiting poll
ticians swarmed over to the Senate cham
Der. They waited there until midnight.
When the Republican Senators finally
came forth. it was to announce that the
gubernatorial contention had not even
been mentioned 10 the caucus, and that
Mr. Denison's resolution had not been
heard of. At midnight the matter stands
Just as it did this morning. and no one is
willing to predict the time of Budd's in
auguration..
The opinion rendered by Attorney
General Hart on the questions involved in
the proposed gubernatorial contest is as
follows:
SACRAMENTO Jan. 6, 1895.
Hon. james n. Bltdd, Governor elect of the
State of California; DEAR SIR: In reference
to your inquiries, first, as to whether the cleo
ton OF Governor can be contested under article
VII, chapter III of Political Code, sections 28S to
295, inclusive; and second, whether the Legis-
lature has the right to pass law providing for
the trying of contest in reference to said
office. l will say that section 4 OF article V of
the constitution OF 1879 provides:
1.-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 aud 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 number Of votes
the Legislature shall, by joint vote of both
houses choose one of such persons having an
equal and the highest number Of votes for
Governor"
This section is the same as 1t was In the
original constitution Of the State of California,
and at the time of the constitutional convention
in 1879 the terms Of this section were not dis
cussed, and therefore no views of the c0nven-
tiOD upon its terms are of record. This section
declares that the returns 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 presence of both
houses Of the Legislature. This section also
declares that the person having the highest
number Of votes Gas shown by the returns) shall
be Governor. II two or more have an equal
and the highest number of votes, the Legisla-
ture shall then proceed 10 elect.
1t Is guile certain that this section Is self.
acting and requires no legislation for the ex-
animation OF the returns, or to consider and
announce the result. Even II two persons shall
receive an equal number Of votes, and one of
them should have obtained a portion OF bis
votes in an Illegal or improper manner, there
would he no way for the other to make a con-
test to show that he had actually received the
greater number Of votes; Notwithstanding that
was so, the Legislature must, according TO the
section quoted. proceed 10 joint convention TO
vote for one such person for Governor. No
contest could be had even In such case. The
section declares that the person having the
highest number of votes (as shown by the
sealed returns transmitted TO the Speaker Of
The Assembly shall be Governor. The c0nsti.
| tuition on this point Is certain, definite and i'm
perative. 1t is the paramount law OF the Sta e.
and no act Of the Legislature can interfere
with or modify the plain provision OF the con-
stitution upon any subject in which 1t treats.
The constitution having treated upon this sub
1ect. The mode therein laid down Is TO be fol-
lowed TO the exclusion of all acts Of the Legls-
lature.
am we'll aware that section z, chapter Q of
the Political Code, sections 258-295 inclusive,
provide for a contest OF The election of Cover
nor, but this entire article is, In my opinion, in
as far as it relates TO the Governor, uncoDstitu-
tional and void for many reasons, among which
will enumerate the following:
Section Of article 5 OF the Constitution,
cited, determines the procedure In reference to
announcing the result Of the election for Gov.
ernor. This action declares that the person re-
ceiviDg the highest number OF votes shall be
Governor. After becoming Governor person
can be removed only by impeachment, resigna-
tlon. etc. There is 30 provision In the consti-
tuition for impeachlng or removing Governor
because he did not actually receive the highest
number of votes. Again. chapter @ article z.
Political Code, practically constitutes the com.
mittee therein a political court for the purpose
! OF deter mining The election OF a Governor who
| Is not member OF either the Senate or the As.