Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-05-19
KBA2NBYs CASE.
It Assumes a Greater Importance and
Promises to Become Leading Case
in the Exposition Of constitu-
tional Rights Of Citizens
as to Free Speech.

Kearney's case was again before the Su-
preine Court in bank at 9 A. NJ. yesterday.
For Kearney, Mr.. Barbour advanced these
propositions:
First-That the complaint charges no
crime, as it sets out the effect of the language
and not the language exactly.
Second-That it is fatally defective because
it does not allege the language uttered within
the hearing of any one.
Third-That the Legislature had no power
to delegate its legislative power to the Super
visors to establish offenses land impose pen
alties) that should thereafter be public Of
fenses.
Fourth-That the Supervisors did not COM
! ply even with the legislative enactment, and
fix the penalties, but left it to the Police
Judge.
Fifth-The ordinance and the prosecution
and judgment under it are repugnant to the
| general laws of the State in that they at
tempt to punish an attempt to commit
breach of the peace by $1,000 fine and six
months imprisonment, while the general law
Furnishes the breach of the peace itself by not
more than 5000 fine and two months in the
county Jail, and attempt to commit by
one-half such penalty.
Sixth-The prosecution and ordinance are
in violation of the constitutional right guar
anteeing liberty of speech to the citizen.
Seventh-Ihe ordinance-even admitting
that it was properly published prior to pas
sage-was, pending such publication, and on
the very night of its passage, materially
amended and that the ordinance, as so
amended, was never published prior to pas
sage.
! Eighth-There never was an order passed
/ 1.
| of the order, as there should have been.
! Ninth-Mr. Barbour then generally re-
viewed the proceedings in the Police Court,
and claimed that the record had been
amended after the trial i'll order ''to make
| the prosecution stick" He urged anew the
power and right of the Supreme Court on
habeas corpus to inquire into all matters
tending to show the validity or invalidity of
the ordinance under which the prisoner was
convicted and is held.
THE REPLY.
| Mr.. Smoot directed almost his entire ar
gument to the point that the question of the
proof of the ordinance and its validity was a
question of fact passed upon by the Court
below, which judgment was affirmed by the
appellate Court, and became final judy
ment not subject to review by any Court on
habeas corpus. As to the validity of the
ordinance, it was admitted that the publica-
ton of the ordinance prior to passage was
perfect, because the ordinance was amended
after printing and before passage, May. 1866.
| Now the object of printing is to give notice
to the people that the Board of Supervisors
would legislate upon a given subject, and
that notice being given, all the subsequent
changes made in the matter are in order, for
! the people have had notice of the intent of
the Board, and it never has been required
| +ho+ Of hoin taA al
amended shall again be printed before pas
sage. But the prisoner is held for violation
of Order 697 as amended by 1196. Now 1876
was passed eight years after, and is acomplete
and perfect whole within itself, and it is
shown by the files of the Examiner that it
was properly and fully published, and its in
! tegrity is not attacked. Mr.. Smoot held
that had Order 1196 been made an addendum
to each and every section of Chapter of the
ordinances, it could not be more eficacious
than in is present independent amendatory
| form.
Mr.. Murphy was permitted to add few
words. He said Order 1856 is complete,
full and absolute order, not even referring to
Order 69T except in its title. It differs in
many particulars from 697 and provides diff
ferent crimes and penalties Now Order
1876, passed in 1874, although declared by
title to be amendatory of 697, is a complete
|
is held. Whether 697 was finally properly
passed or not, he did not care, for 1196 was
complete, and the Courts have held that the
title of an Act is not to determine its charac
| ter Attack has often been made in San
Francisco before the District Courts upon
| the power of the Board of Supervisors to pass
these ordinances, and it has been invariably
| held by the District Courts and by the Su-
preme Court that the Legislature had the
right to delegate the power to the Super
visors to pass these ordinances.
THE REMEDY.
But it is said that the complaint charges
defendant with a violation of law under Ordi-
nance No. 697. If that be true, his remedy
was an appeal; it is but defective, and may
be corrected on demurrer, and failure to de-
muir closes the door to the objection. But, in
fact the complaint charges all cffense under
697 as amended by 1876. AS to the ordinance
and conviction being a violation of the con-
stitutional right of free speech, Mr. Murphy
did not deem the point worthy of considera-
ton. The right of free speech does not i'm
ply the right to use foul, vulgar and profane
language, and the abuse of persons with foul
tongue before crowds in the street. and the
heaping of opprobrious epithets upon citizens.
| This Court has directly held lex parte De-
laney, 43 CALI that such use of language is
an offense, and may be restrained by law.
TO Justice McKinstry) 1.-THE language may
under this law be either profane or obscene
or tending TO create breach of the public
peace-just as the jury may find. 1t is not
required that it be found that the language
was profane and obscene and tending to create
| a breach of the peace. Nor need it be ad-
dressed to a person, but it may be of per-
son.
ITO Justice McKinstry)-Y we hold that
it is settled that the Supervisors may declare
such things to be offenses, and that this Court
has held and settled it that the Legislature
had the power to give the twelve Supervisors
power to make certain things offenses.
VITAL POINT.
Justice McKinstry-If this ordinance is to
| be maintained, then it must be on the propo-
sition that any language a jury of twelve
men may deem of character tending to Gre
ate breach of the peace shall be an offense.
That is the bald legal proposition here and
outside of the language charged here, which
is utterly indefensible, and will be used by no
man who owns to self-respect or regard for
public decency.
Justice Thornton-Mr. Murphy, can you
show me any Act of any legislative body re-
stricting the liberty of speech?
| Mr.. Murphy protest against the per-
version of this term liberty of speech" 1t
is not intended to mean RIGHTEOUSNESS of
speech, the abuse of speech, the Indictment
to riot and breach of the peace, the abuse of
persons and
Justice Thornton-I don't care if you do
protest, sir. Protest all you please; but
Shall use the term " liberty of speech as
did use it, if 1 wish 1 again ask you if you
can show me any enactments like this in
| in other States in restraint of liberty OF
speech?
Mr.. Murphy-Yes, sir; can do so if
| given time to note down the citations.
! Justice Thornton-Send them in at any
time.
THE LAST ARGUMENT.
| Mr.. Barbour said the new Constitution,
Section g. Article XII, declars that all cities
shall be subject to general law, that are now
organized or may be hereafter. The Consti-
tuition intends that they shall be controlled
by general law, with the right to make GER
tain ordinances. Now breach of the peace
is an otfense under the general law, Section
664 Penal Code, punishable by two months
| imprisonment, and for an attempt to create
breach of the peace the penalty is one-half
of that Yet under an ordinance of a city
six months imprisonment and fine of $1,000
is the penalty for like offenses. As to the lib
erty of speech. he declared that there can be
no law restraining freedom of public speech
and criticism a. lawful meetings, assem-
bled for lawful purposes, and on this prop
osition rests the whole liberty of the nation.
/ IL counsel wO1ld since the sedition laws