The herald., 1896-08-14
BEFORE THE SUPREME COURT
The Matter Of the Lieutenant
Governorship Argued
WRIT OF MANDAMUS ASKED
Lynch's Interests Represented by Ex.
Justice De Haven
Governor Budd's Appointes Looked After by
Garret ncEnerney and W, w. Foote.
The Arguments Presented

The question as to whether or not the
ordering Governor Budd to include the
office of lieutenant governor in his proc
lamation calling the next state election,
was argued before the court in bank
Tuesday eX-Justice de Haven repre-
senting John Lynch, the Republican
nominee, who asks for the writ, AMI
Garrett McEnerny and w. w. Foote,
representing Lieutenant Governor Jeter,
who was appointed by Governor Budd,
and contends he should hold office the
balance of the late Mr. Millard's term.
Ex-Justice de Haven read to the court
a letter from the governor, in which that
official said he was exceedingly anxious
that a decision by the supreme court
should be rendered. and was by no
means averse to doing as Mr.. Lynch
prayed, providing ne was satisfied the
law authorized him to do so.
In his argument Mr.. de Haven conced-
ed there is no statute making specific
provision for an election to fill a vacancy
in the office of lieutenant governor. he
argued that the right of the people TO
fill the vacancy in such office was not de-
pendent upon any statute, but under a
proper construction of the constitution
the people had reserved to themselves
the right. whenever they assembled at
any general election. to fill any vacancy
in that office. He said the only purpose
of the constitution in permitting the
eoVernor to make an appointment 10
MI a vacancy was to prevent the puohc
Inconvenience which might arise from
an actual vacancy in the Office, ana Wnen
no other mode has been provided by law
for filling such vacancy upon the IN
stant; and the purpose of the constitu-
ton is to restrict the power Of the gov
ernor in this respect within the narrow
est possible limits For that reason IL
made special provision that in the case
Of vacancy in an elective oince IN,
term of the governors s appolntee snali
cease at the very earliest moment when
the people-who are the source or All
political power-can have an opportu-
nifty to act. Many cases were cited ny
him in support of this contention.
Mr.. de Haven said he was willing to
rest his whole argument upon the proad
proposition that all political power IS
Inherent in the people. This, he said. is
not only the declaration of the constitu-
ton, but is one of the fundamental prin'
ciples upon which our government Is
founded. 1t pervades the entire system
upon which not only that of our own
state, but the government of every state
in the union is founded. Under our form
of government the people possess all
power which they have not delegated
elsewhere; and this maxim of constitu-
tional law must not be forgotten in con-
STRUNG a constitution for the purpose
of ascertaining what limitations the peo-
ple have placed in their own powers,
and he said it was a truism not ad-
mitting of doubt or dispute that under
f.r of on the npOnla hn
the right to elect every officer from the
highest to the lowest. and to fill any
vacancy in any Office unless they. by
the constitution, which they have FORM
ed for their own government, have del
egated the power elsewhere. And from
this fundamental maxim of government
he argued that he who denies the right Of
the people to fill vacancy in an elect
i've office must put his finger upon some
which expressly takes from them this
right, and which delegates the power
elsewhere.
Mr. McEnerney contended that the
lieutenant governor is under the consti-
tuition elected every four years. The
constitution also provides that in case
of a vacancy the governor shall fill II.
He held there is no other provision of the
constitution or of any statute for the
election of lieutenant governor. He
quoted a long list of authorities to show
that no election can be held except in
pursuance of some constitutional Or
statutory provision which authorizes the
same. Mr.. McEnerney made the further
points that Mr. Jeter is entitled to hol l
his office until the election and qualifica-
tion of his successor and until that sue
cessor is entitled to assume the duties Of
the office. All of these propositions were
backed up by citations of various cases.