Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-06-06

punishment OF such delinquency, IS punishabl
! as misdemeanor."
The word wiful is required, and this section h2:
also been adjudicated. l forgot the name OF ths
case. II action in Stockton, where Justics
! Of the Peace was f .ed $500 fer charging unlawful
fees and it was shown not to be wii.fGl and cor
rupt and the case was reversed. This also comes
from Section 20 of the Penal Code, which require:
an intention well as an act to constitute crime
OF course by intention don't mean that the-yss,
do mean that the act that Is aimed to have been
! done-that is, the nlisdemeanor-must have bser
! after ded by the will, and the omission that is
| claimed to have been made must have been at
tended by tie knowledge and the viii
| to omit it That grows out of the ver5
code OF criminal charges. lt must be also e
misdenleanor by the Criminal Code. Section Is, Sub
division (, OF the Penal Code-ar act committed OF
omitted in violation OF law. This notion gets sup
port from all those sections that are found in those
! chapters those Acts it'll regard to misdemeanOr.
In 1884, page OIL the words are williul violation
Of the law prescribing his duty ;; also, ga vii fu
violation OF Official daty.'' That must be conduct
by tie defendant and not merely inclination in the
troT. Something TO be done by rhe party to blame,
/ for whie the pasty to blame is blameworthy
/ conduct Canable of being stated in charges
/ that may as fact be admitted or denied.
Something 80 blameworthv that he can not only fa
j to be removed from office, but kept cut Of aus
! future office, 49, May even he indicted in the
same cause, T58. Willful and corrupt 75S.
Indicted also for that, and may be then tiled sub
sequently by jury a criminal case, 767 Now 70
pass upon al those things the point thas ! ain
Z
to exercise powers except those imposed upon hinl
/ by the Constitution.
! Now, what must the Governor do in this case,
what power exercise First TO the p.eadings, he
I must pass their sufiiciency-whether they con
/ tain chsrees sufiei5nt to base removal upon or
not Is to ecidence-what is legal, snd not. All
questions of its competency expressly to be re-
! qured TO pass upon most difficult questions even
/ for trained Judge. Yet essential TO justice.
He must preserve order in Court by iu1icial
must possess thoroughly the power TO commit for
contempt the witnes who refuses to come, which is
not given but TO Courts. The witness also who re-
fuses to answer. If a witness denies the judicial
quality OF the Court AMI declines to obey its
date, this tribunal must have the power not to
strike out the testimony, but to compel the witness
to testify, or submit him to contempt These pow
| ers are only incident TO the Court.
The Governor must get witnesses here. How is
he going TO do so He must issue su5penas, which
is the province % Court. He must compel the
att sndance of witnesses How would it be if depo
sitions required to be taken II would be only
because this tribunal is Court. II he is a Court,
where does he get the power to be one Ii ne is
not a Court, how can he expect justice! If the
Governor is Court, has he the power to use those
incidents? He cannot expect justice 1t all turns
on the power to try. What Code will he follow, the
Civil or the Criminal Code? What memorial wilt
his Excellency keep OF the judgment? What book
is given to this Court as a monument
wherein the Judgment will always stand for ths
| future TO make It's decision. Can he make Iules
Section l29 provides that only a Court can make
rules and more than teat the rules have got to be
made sixty days before they go into effect for the
Supreme Court, and thirty days ii it is q Superior
Court, before they take effect, and if not Court it
cannot make rules at all TGOsc are Sections 129
131 and 95 of the Code Of Civil Procedure. Can This
Court pay witnesses in cases where tey required
to be paid! Can this Court issue executions for
costs as TO pay those costs Can this Court order
q witness deposition 20 be taken and brought from
place like San Francisco, becau he cannot be
compelled to come, il being more than thirty miles
Las his Excelency the necessary qualifications to
do the duty? Judge to be Judge must be ad-
mited to the Supreme Court OF the state even if
Superior judge. Can 1t be SAID that the Constitu.
ton ia ended that gentleman OF the most eminent
qualifications otherwise should be Judge, if en-
tire untitled by any OF those qualifications that the
law requires in onef
We claim that the Governor has not the power TO
try the charges against the Directors and should
send the same to Superior Court to be determined
Wise and ssfe government has mainly csme from
a division Of the whole power into parts, one OF
which makes the law1 one of VIII ch applies them,
and one OF which executes them as applied
Men began government with the stvage chief for
head who combined al these in hImse +, and have
only lately attained the better system.
Dcspotsms are mainly so for the want Of this
system of division of power.
OF all the departments the executive one is that
least safely trusted with judicial power-t is euli-
nently dctatorial and the most disposed to feel
round for force.
There is dau ger in blending the executive and
judicial functions.
The power tha5 finds removal for msdemeanor
| should be no part Of that which fills the vacancy.
The Judge should not be jSiler and executioner
and afterwards administrator upon the estate of the
deceased.
The Governor OF State Is the visible bead Of the
State ard where uuly two parties are formed that
often comes to mean the nead of the prevailing
one. There is danger that his sycophadts will im-
press even strong and good man in such case to
consider his rarty the State, and himself bound to
forward Its interest at tie sacrifice Of any opposing
ones This consideration suggests no reason why
bn shO saia hpr
than from others the Cfii Of his government ;
nor does it suggest a reason why, when he can re-
move in his mere pleasure, he should not do So in
order to secure the services OF his friends. Bus it
does suggest strong reason why, when an accusa
ton Of crime III office is made the basis of
removal against az adverse incumbent he should
not be made the Judge to try the delinquency.
Judge not fer one occasion, not for one purpose,
but udge whose office Is judge and nothing else,
ia little Ii bls to the shafts OF partisan censure.
From association educston, profession, traditions
and surroundings, be owes judicial fealty to
party, and admits Obligations Nobody expects
that he shall Such Judge may safely decline TO
sit in where, il there could be such case,
partisan would secure favor from such consider
ations. ask then, Il it is probable that the Goa.
stitution-makefs could have meant that he who
to fill an office should have the power to yaeate it
by assuming the uutried role of Judge,
| and passing jnri1icaliy on criminal
time might ue, snd tn Governor might IN
the future some time ce found, VIXEN, and with
whom il wouI be bard to be an impartial Judge.
In cases in which Little power belonging to one
department has be- Il all wsd to al officer in
another the very nature Of the office has male it
necessary. But that here and this Governor
should be Jadge s demaLd by no necessity and
is yntrEry to al the us.gss OF cur moiem civil
ization.
There is no more reason why the Governor should
try Directors than thathe should any other officers
| accused-and removable. You may just as well
claim him for judge in ali removals for legal esuse
under 772, the ordinary mode of making removals.
There would be then need Of ~, nor of the Act
OF 1874 page 9l1. Thare is doubt that the Gov
crnor may remove Directors il declared to be guilty
by proper Court, and yet he need net DO so then
unless he likes. Governor, to be such, need no.
be fis to try csuses-to sit Judge. He, as Gov
ernor is net required to be learned in law nor in
the usages o. Courts. The State gives him legal
advisor, but that officer is the one who makes this
accusation and he the Governor himself, could not
be ordinary Judge uuess duly admitted to the
Supreme Court o. this State.
While the Governors want OF ftaess % try this
case should tie more eutitie the defendants to an
appeal to correct any yet the very fact of his
trying it would cut of the appel which exists
when tried in the proper Court, and leave defend
ants reueiiless.
When tIials either by their form or their io-um
offend the pubic Of justice, they fall into dis
use and a;tsn els sstroGs T. those who promote
them. ~nom the gcds would destroy t1ey first
make mad
But for tae fair name Of geEtlanen now here pre-
siding, who could confer general seeming a
mo-e Objectionable matter, such form and forum
might be taken for political T2rpi9n rock rather
than judicial tribunal.
Is there not danger from putting such AZ un
wholesome construction On the Constitution that
even n fair and honorable and merited conviction
would bring shame rsther than renown on TIE pro-
moters Of the accusation. When we invoke this
construction should remember that Freedom
first pines and laDguishes in peoples Courts be
fore ste expires in their dungeons.
The Constitution coes rot dclsre that tde Cow
eTnor may or should try charge against these Di-
rectors and it should not be strained 20 defeat the
spirit Of AL our history aud Of its own direct pro
visions.
The results Of a conviction in this case OF official
niscosduct luld be III the extreIae disastrous to
in sdeqGa.e Co TT. lJ il criminal prosecution
and yes what machinery has this tribunal by which
70 secure a iurys The other consequences OF the
Judgment against the 6eferdants are appalling
Article Ky section II. All these considerations in
voive reasonable construction Of Atieie Y, Section
l. and protest against the claimed hy the prose-
cution A fully equipped Court should alone deter
mine the existence Of the crimes bssng the removal
There is nothing new about removals from ofiee.
The mode and practice OF it s as old as the common
lsw. 10 this State y ss old It's history, and
Section ~, Penal Code, coming from the &C. Of
1859, describes it.
It is at Least dangerous 70 leave the old we'll
Known ways, and passing BY Courts uninvoked to
appeal 10 new, unnecessary and anomalous one,
usither sanctioned by tire wisdom OF ages nor
recommended by the loug.cherished respect Of the
people Such tribunal, ike all novel ones Though
ever so just, viii, as equity was when first in
porsed into Englsnd, be frewned upon, If for 90
other reason than because it is exotic while the
most unweieome &C; Of an accustomed Court is
shields from eensure next reconmesdst CONSIDERS
ton and euds by establishing IS approved and Ia-