Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-03-18
GETTING AHEAD OF THE WRIT"
ofHcial Reply to Statements Regarding the
"Debris" Writ Of Prohibition.

CARD PROM ATToRNEY-G GENERAL HART.
EDS. RECORD UNION: There appeared il
the San Francisco Chronicle of the 18th in
slant an article entitled "Getting Ahead o
Writ" which I deem it my duty to notice
as well on account Of the serious charge
which it contains against myself and tw'
other State officers as on account of the re
markable facility with which the editor mis
conceives or misrepresents the facts. In tha
article it is stated that " through the instru
mentality of Attorney General Hart. Will
the probableassistanc CT Controller KenfelC
and Treasurer We'll, s2O7, S52 were on Mon
day drawn from the State Treasury, al
there is reason to believe, wrongfully
and illegally. But for the direc
interference Of the Attorney Genera
| the writ of mandamus would have
issued on Saturday to restrain the payment
| of S264 12l As then pending. Upon his official
assurance that but $4,000 or $4,000 were
involved, the writ was not granted until
Monday"
The above statement of the Clronscle is
simply and unqualiiedly untrue, and evlnces
as much willingness to misrepresent public
official as ignorance on the part of the editor
as TO the nature of the proceeding about which
he was undertaking TO comment. A little
Investigation would have shown him that
there was no application for a writ OF man
dauus made in the case referred to, but that
on the contrary, the application was for q
writ Of prohibition, which, before the ter
mination of the proceeding referred to, 1t
will be demonstrated, does not lie against the
Controller or any other ministerial ofhcer.
When the application for that writ was made
happened to be in the Supreme Court on
other business, but not in pursuance OF any
notice previously given of the said proceeding
against the Controller AS it was my duty
under the statute to defend the Controller in
any proceeding brought against him, | ven
tured the suggestion when the application
was made that a writ restraining State Off
cial from the performance of duties epjoiped
upon him by law should not be granted ex-
cent upon an order to shew cause, and after
the official had had an opportunity to be
heard in his own defense; that in my judg-
ment it was not proper for the Court to as
sumo that the law was unconstitutional
simply upon the ex parte application of any
person who desired TO restrain an official
from doing that which he considered his Off
cial duty, and the Court, taking the same
view of the question that l did, refused to
issue the preliminary writ until the parties
could be heard on the following Monday
Whether the parties were heard or not on the
following Monday, l am unable to say, be-
cause at the time set for the hearing L was
necessarily in attendance on the United States
Circuit Court on official business. This is all
l have ever done in connection with the matters
referred TO in that article. TRestatement that
1 gave the Court my official assurance "that
but SO, 900 or S12, coo were involved, is not
true; and, if l had given such an assurance,
it would have been entirely irrelevant. The
duty Of the Court to restrain the illegal pay
ment of $4,000 or 900 out of the State
treasury would have been equally as binding
as would have been its duty to restrain the
payment of larger amount. But no such
assurance was given, for the reason that
did not know, nor did l claim to know, how
much money there was in the fund, out of
which the payments sought to be re-
strained were to be. made. Nothing was
said as to how much money there was in the
fund, except jocularly between counsel,
and that was after the question had been
fully presented. The statement then was not
to the Court, but TO counsel for the petit
TONER and was more in the nature of an in
auiry than of a positive assertion. The
statement, as near as l can recollect it, was
TO the effect that I did not think that he
could be injured much by the refusal of the
Court, which had already been made, to issue
the preliminary restraining order. as l had
heard that the fund was exhausted At the
time that remark was made, however, the
Court had already refused to issue a prelim-
mary restraining order; and nay recollection
IS that | was sitting, and counsel for petitioner
was in the act of leaving the courtroom.
It would be a sad commentary on the Su-
prerne Court of this State if it could be sue
cessfully maintained that it had disregarded
the verified statement of facts contained in
the petition addressed to it, and, accepting
the mere assurance OF any attorney at the
bar, had refused to issue a restraining order
simply because the only result of that refusal
would be the illegal abstraction of $4,000
or So, 600 from the public treasury. Nor is
it true that have ever spoken to Mr.. Ken
field or Mr.. Well. or any person connected
with the drainage system OF this State,
or any person having claim on
account of the drainage system, or in
any manner aided, assisted or advised
any person as to the drawing of money from
the drainage fund. l did not know that the
money spoken of in the Chronicle had been
drawn from the State Treasury until l saw
the article to which reference is made above.
My connection with the matter has simply
been that of an attorney representing his
client, and with my conduct 10 that respect
| am perfectly satisfied. My competency to
perform my official duties 1 submit to the
bench and bar. who alone are capable of
judging Of it. My own honesty and capabil-
ity are questions upon which l shall not rush
into public print, but shall leave those mat
tiers to be judged of by those who witness my
official and other conduct My only object
in writing this letter is to say that the charges
made against me by the editor of the Chronicle
are not founded in fact l hope that the
Misrepresentation contained in the article
were not willfdlly made. They, however, do
me great injustice, and it is TO be expected
that when he sees his error the editor, in
spirit of fairness will undertake to undo the
injury that he has thus perpetrated. l have
no doubt as to the power of the State to pro-
vide system for the drainage of overhowed
lands within its borders; nor have [ any
doubt that it may, by law, provide for the
payment out Of the State treasury of any
amount which may be necessary to effectuate
such system. The question, however, is
before the Court, and let it decide it. We
will then see who is right. Respectfully,
A. L. HART.
Sacramento, March II, 1881.