The San Francisco call., 1896-03-14

of his office. or be absent from the State.
tba President pro tempore of the Senate
shall act as Governor until the vacancy De
| filled" LII. ~
nurnort of this section is obvious.
The Political Code virtually re-enacts
the provisions of the constitution ana
further says in section 999'
When auv office becomes vacant. and no
mode is provided by law for hllng sucn
vacancy the Governor must I'LL sucn vacancy
bv granting a commission. to expire at the
nexf session of the Legislature, or at the next
election by the people.
Section 1901 provides that:
vacancy occurring in the office OF either
Attorney-General Surveyor-General or clerk
of the Supreme Court must be filIed by per,
son appointed by the Governor, who snail hold
office for the unexplred term.
1t is upon the omission OF Lieutenant
Governor in this section that Governor
Budd is said 10 RELY for his authority to
withhold a proclamation Tor that once,
vet it would seem that the very omission
here brings it under the section OF the
constitution which provides Tor the man
ner of filing offices for which no mode Is
particularly described. The spirit OF the
section providing for the appointment OF
a temporary occupant Tor TINS once ap-
Y of the constitution. where 1t is pro-
vided that vacancies which occur In
offices during recess OF the Legislature,
the appointment to which IS vested In the
Governor and Senate, or in the LegIsla-
ture, must be filled by the Governor; but
the persons so appointed can only hold
office until the adjournment OF the next
session of the Legislature.
Political sections 1853 and 1854 provide
for the issuance of a proclamation at least
thirty days prior to an election which
must contain statement OF the time OF
election and of the Offices to be filed" 1t
is intimated that this section is another on
which the Governor relies to retain Jeter
in Office. His modus cperandi will be to
wait until exactly 80 days prior to election.
He will then issue his proclamation, and
any proceedings commenced after that
date will be too late to result in a valid
election for Lieutenant Governor, as it has
been held that special election without
the full time of notice prescribed is illegal.
in speaking of this matter Attorney John
E. Richards said:
1t is evident from the law on the proposition
that it is the duty of the Governor to issue
proclamation for tie election of a Lieutenant
Governor in the fall. Should he neglect this
duty the people have two remedies. One is by
writ of mandamus. The people can sue for
writ on the showing that the Governor threat
ems to issue proclamation leaving Off this
Office.
1t is true some doubt has been expressed as
10 the availability of this remedy, when di-
rected against one of the three coordinate
branches of the Government, but California
cases have repeatedly held that where the
act is one purely ministerial and not the SUBJ
ject of discretion the Governor OF a State is
liable TO mandate.
In case reported in the thirty-ninth Cali
fornia it is said: "If the act is enjoined by law
and the non-fulfllment of It is q wrong to
particular person that particular person may
apply for writ of mandate.
In this case perhaps any person deprived OF
his right to vote tor Lieutenant-Governor
would be held to have sustained particular
wrong. At any rate by that time there will be
regularly nominated candidates for the office,
and these will certainly have sustained a par
ticular wrong.
Should the people deem it inadvisable to
employ mandamus proceedings O second
remedy is at hand, namely, impeachment.
In view OF the PLAIN provisions OF the law, It
is not likely the Governor Will run the risk OF
impea chment by what will undoubtedly be q
Republican Senate. Moreover, it is the gen.
eral view among Republicans that when Mr..
Millard died the President pro tenn. of the Sem
ate became Lieutenant-Governor. Should Mr.
Jeter remain in office it is not unlikely that q
Republican Senate would recognize its own
a dilemma. The principle exempting co.
ordinate branches of the government from
mandamus, which is urged with doubtful
pertInence in his defense would be unques-
toned where the Senate was concerned, and
the Democratic executive would be without
any possible means of forcing the recognition
OF his nominee
Other attorneys expressed themselves in
a similar vein.