Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-05-28


hbitions and practices which are against good NOR.
ais contrary to public order aud deceucy danger
Gus to the public safety" (Stat 1868, See. l, Sub.
| 8, p. 540)
The Board OF Supervisors passed order No 697 as
| amended by order No. 1896 Chapter 3, Sec. J. Oi
| said order provides
Any person violating any OF the provisions oi
this chapter shall be deemed guilty OF msdemeanor
and be puulshed by fine of not exceeding 81 coo
| or imprisonment not TO exceed six months, or by
both such fine and imprisonment"
And Section 2S OF said Chapter III. provides:
NO person shall ,. Utter in the hearing of two
or more persons any bawdy, lewd, obscene pro
| fame language, words or epithets.p
" 3. Address to another, or utter in the presence
of another any words, language or expression hav.
ing tendency to create a breach of the peace
WHAT MAY NOT BE INQUIRED INTO on HABEAs CORPUS.
We shall assume for the purposes of this decision
without admitting the law SO 10 be-First: That
we ought not to inquire habe corpus, with a
view topetiioneTs discharge whether the sections o
the charter above cited authorized the Board of Su
pervisors to adopt the Orders 697 and 1856 Second
That We ought not TO inquire, except for a limited
purpose, whether the ordinance is &c reasonable
aud one which municipal government may en-
| force. Third: That cannot inquire on habeas
corpus whether the Orders 697 and ll96 were prop
ery published prior to their passage, inasruch as
they verified BY the signatures of the Mayor and
| Clerk of the Board.
1t is not to be presumed that Court of general
| jurisdictiOn-or one which the law treats as such
has in any case proceeded to adjudge upon matters
over which it had authority. On the other
| hand, no such intendnent is made ia favor of
| the Judgment of a Court OF Limited juris-
| dietion-an ''inferior Court but the recitals
contained in the minutes of the proceedings must
| be sufficient to show that the case (which
the law permitted the Court to take cognizance Of
and that the parties subjected to its jurisdiction
by proper process" Gases citt in Note l. D. 407,
Cooleys Const Linz If indeed the proceedings show
that inferior Court has found the existence OF fact
on which the right to proceed depends, and by the
constitution of the Court, the existence or non
| existence OF the fact is matter placed within
the jurisdiction of the Court for determna-
| ton, the adjudication of the inferior
Court that the facts exist is conclusive. As stated
by Mr. Justice Cooley-after he has laid down the
proposition that in case of Court of special and
limited authority it is permitted TO show want of
| jurisdiction even in opposition to the recitas con-
tanned inithe record ' This conceive to be the
general rule, though there apparent exceptions
of those where the jurisdiction may be said
depend upon the existence of certain state of
| facts which must be passed upon by
the Courts themselves, and in respect
| to which the decision Of the Court, once
rendered, if there any evidence whatever on
which to base it, must be held final and conclusive
in all collateral inquiries, notwithstanding it may
have erred in its conclusions" (Con. Lin, 4o7.)
WHAT THE COURT ASSUMES.
We have assumed that the existence of the ordi
nances which, as claimed, gave the Police Court the
appropriate jurisdiction, and the publication thereof
-supposing the publication to be nquirable into by
| any Court-were matters to be ascertained by the
| Police Court, and that, on habeas corpus, we
ought not to go behind the finding of the Police
| Court with respect to such matters. We also as
sumo that the orders ordinances referred to were
proven. We not called on therefore, to re-
examine the evidence with respect to any fact passed
upon by the Police Court.
| The records of that Court show that two CON-
plants were made against the petitioner The first
charged him with having uttered, in the hearing OF
others, bawdy, obscene and profane language. That
| charge dismissed.
| As we have seen, nothing is to be presumed, in
the first instance in favor of the judgment OF the
Police Court. If the record does not show upon its
face the facts necessary TO give the Court jursdc-
| ton they will be presumed not to have existed
but this presumption Except in California such
jurisdctional matters the law requires to be re-
duced TO writng) may be rebutted and the jurisdc-
tional facts established by eXtrinsic evide &C. Huri
on Habeas Corpus, 367) We have assumed that
the fac. of the existence of the ordinances which,
as was supposed gave the Police Court jurisdiction
must be presumed to have been established to the
satisfaction of that CUurt-and for the purposes of
this the presumption will be held to be conc'u
sive But the Pvlce Court could not give itself ju-
risdiction by its construction Of ordinance when
the very question is whether the inferior tribunal
was given power by the ordinance to try petitioner
| on the charge on which he was actually tried. 1t
devolved therefore, upon those whose function it
was sustain the jurisdiction to produce the ordi.
nsnces which were proved in the Police Court, in
| order that it could be ascertained whether they
/
for the punishment of which the inferior Court
had power to impose the Judgment which
rendered. We take judicial notice that the act
charged in the complaint constitutes crime under
the general laws Of the State. II the judgment of
the Police Court is supposed to derive its validity
from city ordinance we may assume an ordinance
to have been proven, and 1t would be enough to
show perhaps that 1t was admitted proven by the
Police Court But whether the ordinance gave the
Police Court power to punish petitioner for the
offense charged in the complaint, is question of
law which we cannot avoid the responsibility of de-
terTining. Can it be doubted that if proof OF an
ordinance prohibiting certain unlawful assemblies
the Police Court should proceed to try defendant
charged with doing some act not prohibited and to
render judgment imposing the penalty prescribed
for taking part in such unlawful assemblies the
judgment would be void The complaint would
charge no crime known to the law of the land /; and
the same must apply whether the law comforting
jurisdiction the inferior tribunal is to be looked
in the statutes Of the State, in orders of the
Board of Supervisors of San Francisco.
TIE CHARGE AGAINST KEARxEY
Inasmuch as no presumptions are to be INDUCED
in favor OF the judgments of inferior Courts, and
as this Court will take judicial notice that the facts
set forth in the complaint constitute no crime
under the general laws of the State, the record of
the proceedings in the Police Court should manifest
that the petitioner there prosecuted for an al
legged violation of some city ordinance. Either the
coIap paint sufficiently refers to, and so makes part
of itself, Orders 697 and l196, it does not if it
does not there is nothing in the proceedings of the
Police Court which show that the petitioner was tried
for any ofense OF which that Court has jurisdiction
We shall assume, however (as against pettioner)
that Orders 69T and ll96 sufficiently appear from
the record and further because alleged in the COM
plant in the Police Court that they are now prop
ery before u.s.
As we have seen already the charge of uttering
obscene and profane language dismissed, it only
remlins to inquire whether the other complaint
charged the crime created by the third subdivision
Of Section IS OF Chapter III. OF Order 1196; since
if it did not charge that crime it is pair it charged
none within the jurisdiction of the Police Court.
The subdivision declares that no person shall sad
dress to another utter in the presence of another
any words, language or expressions having ten
dency to create breach of the peace" We shall
not inquire, i'll this place, how it accsrds with
stitutonal law the policy OF general legisla-
ton to place the power in the hands of Judge or
jury to decide that "any words to Others, per-
haps, apparently innocent-whch they may think
Objectionable have tendency to create "A breach of
the peace. That the language charged IN the par
ticular instance now before was not only indie
corus, but in the highest degree indecent, cannot
affect the question. The next conviction may be
for the use OF words less offensive, and the at
tempted definition OF the crime sought to be created
by the ordinance is uncertain would leave it to
the varied judgments or tastes of successive juries
to find defendants guilty or not guilty of crime
for the use Of exactly the same language. 1t
may be that the Legislature might declare
SANDER to be q crime, or might authorize munich
pal board so to declare. II this were done however
IL can De tnat tne CONSTITUTIONAL pro-
visions in respect to libel would apply The ques-
ton whether the words spoken were sanderous
would be question for the jury, and the defendant
would be allowed to prove, if he could, that the
words spoken were true, and that they were spoken
for justihabe ends. The provision of the ordinance
on which (as is claimed) petitioner convicted,
does not require that words shall be slandeIous
and does not permit the defendant to prove either
the truth or justifabe intent. Libel is distin-
guished from sander in that it is supposed to be
more deliberate. The freedom OF the press is
surrounded by many constitutional safeguards Can
the Legislature-G fortiOri-a City Council, sweep
all these aside by the simple process Of calling libel
by another name? The Legislature cannot depr We
the publisher OF newspaper OF his right to prove
the truth of a statement alleged to be belous and
that it was published for justifable ends. Will it
be contended that the printer may be deprived OF
this great constitutional ght by providing that he
shall be punished not for libel, but for the pubca
ton OF words having tendency to produ breach
of the peacei
LIBERTY OF SPEECH
The foregoing will suggest some of the evil conse-
quences which might ensue were we to give
the construction contended for by counsel to the
third subdivision of Section IS of the Chapter and
hold that it covers the case of one who NAV have
used words having tendency to excite the wrath
In case he should ever hear of them-of person
OF whom the words were spoken although such
person may not have been present when the words
were spoken, nor may ever have heard them rected.
We cannot too often repeat that the alleged crcum
stances OF this particular should be appealed
10 as requiring OF the Courts to attribute forced
meaning TO the ordinance Ii may be admitted for
the purposes of this argument that the language
alleged to have been employed by the petitioner
conveyed vile and perfectly unwarrantab.e assault
upon the character Of an honorable man. But it is
n "A fTa