Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-06-07

the Statutes Of 1871 It was admitted By council
for the people yesterday that this Is new proceed
Ing-to use his own language, " an unheard- Of pro-
ceeding" When the Courts provide laws by which
these Directors NAV be tried for the oense charged
| hers-&nd il there is any doubt about It, why not
give our theory OF government, and the custom OF
ages cid as the Government itself-why not give
them the benefit of the doubt, and let the Courts
try and determine this case? In case OF doubt or
ambiguity, our theory Of government should pre-
| vail, and the Courts try this case
wish 70 call the attention of the Court to pro-
vision in the Virginia Constitution that this Consti
tuition has adopted, and believe every Constitution
| ia the Union contains it. That Constitution was
adopted June II, l7l6. 1t is the oldest among the
States before the Declaration OF Independence Il
reads
1.-The Legislative, Executive and Judicial shah
be separate and distinct, SO that neither shall exsr
else the powers properly 6eo ging to either of the
others; nor shall any person exercise the powers OF
more than OF them At the same time"
| This Constitution of Virginia was amended and
re adopted In 1885, and in that c0nveution Chief
Justice Marshall vas member, and this original
/ provision allowed to stand unchanged. There
fore | claim that this is fundamental principle Of
this Government and Of the states that the depart
ments divided into Judicial executive and legs-
atye, and that neither can encroaeh upon the jurs-
dlc.iou functions OF the other. The Constitution
itself, after giving the distribution OF powers,
! then goes to work and divides the depart
ments, and gives them their jurisdiction.
Ii gays what the jurisdiction Of the judicial Depart
ment shall be, and defines the Courts. t says also
| in Article v, Section ], what the powers OF the
Executive are. 1t says he shall be styled " the
| Governor of the State OF California" II / may be
allowed 4 word here, during all Of this argument
| here, he has been called " His Excelency." That
| has grated harshly upon my feelings. 1t has too
much OF the sound III roy atty. 1t sounds too much
using it. like the simple name OF Governor.
Referring farther to the Executive department,
Section T. He shall see that the laws faithfully
| executed" You are endowed with great powers.
You may call upon the militia Of the State 10 en-
| force the laws. You may go further and call upon
| the army OF ths United States to assist
in the execution of the laws; but there
is no place in this Constitution or
in the laws OF this State which gives you any au-
thority TO sit as Court and construe the laws Of
| the State or the Constitution Of the State. You
have the power to f1 vacancies Article Y, Section
1, Is the provision under which YOU claim the 'wer
! YOU low exercise, and it is embraced thes few
lines 1.-THE Governor shall have the power u. re-
either Of the Directors for misconduct, incom-
potency or neglect Of duty, after opportunity to
be heard upon written charges Now that provision
does not say that these charges shall be preferred
before the Governor. By no means. IL does not
say that the Governor Shall hear tuese charges. But
| 1t gives him the mandatory power to remove the
Directors for these various oenses. These charges
| may have been preferred and an indictment
might have been drawn in the Superior
| Court, and the Court could undoubt-
any ambiguity about this section and we claim that
there is, because it does not give the Governor the
din eet power, but gives him only the power to re-
/ move and not the power to hear, these charges
have been preferred in the wrong place. They don't
1 belong to the Executive Department. And to SUBJ
stantate that doctrine have only to read Section
| 5, which says that the Legislature shall pass such
tdisS as man be RecessdrU to cdFrY into effect the
provisions Of this article; and the Legislature, in
the exercise Of its will under this Constitution and
since 1t was adopted, have enacted Section 7I2 of
our Penal Code, under which these Directors can
be tried and removed from Office for these ofenses.
| q Fourteenth l.
ment of the United States we are denied the equal
/ protection OF the law in this proceeding. The
Fourteenth Amendment reads as follows:
| = No State shall make or enforce any law which
shall abridge the privileges immunities OF ctl-
zens of the United States; shall any State de-
prive any person OF life liberty or property, with
out due process of law, nor deny to any person
lcttti its jurisdiction the equal protection Of the
| lars"
II this Court has not the power to throw around
these Prison Directors all OF the protection which
| the codes of this State give to them, to wit the
right OF trial by jury the right to be confronted
with their Witnesses the right to compel witnesses
to testify, and all those other functions Of Court
then say that this Court in trying and determining
this deayi1G to these citizens the equal pro-
lection Of the t and that this State, By It's Consti
| tutiona Convention could not pass law in conflict
| With this fourteenth amendneht Ii it has, it is
| void.
WHAT is a nisdemeanor? Section 17e of the Penal
| Code reads thus: Every wilitul omission 10 per-
form any duty enjoIned by law upon any public Of
| fcer, or person to.ding any public trust or employ
ment, wnere no special provision shall have been
made for the punishment of such delinquency, is
punishable as q 8eistGeHaeoR0r.
These Directors are charged here with an omission
to perform an official outy. That, under the Penal
| Code, is a misdeneanor, and a misdemeanor is d
admitted that if this was criminal proceeding the
Governor would have no jurisdiction.
Mr.. Flournoy-NO sir; didn't make any such ad.
mission. There are crimes charged in this COM
| Governor &
Quentin. Some other Court will have to attend TO
That
Dir. sesrs-Now the first specification reads as
follows Tho report OF said Directors to the late
| Governor George Q. Perkins EXHIBITS in tie tabu-
lated statement OF the CLERK at San Quentin ex-
pendture for the fiscal year ending June so, 1881,
on account II prison improvements and general eX-
pense, OF SIS, l23 So, which statement and IS
false and frAuduleut in that no such sum ever
expended therein stated, and the fact that such
statement false and fraudulent could easily have
been ascertained by said Directors, and Is hereby
charged to have been known TO them"
The same language exists IN our Constitution
as applies to the Prison Directors. They may be
| removed such manner as the Legislature msy
provide.
cite your Honors TO 81 Cal, People Vs. Pruvines
II The departments, therefore, OF which it speaks
and in respect to which it provides that person
employed In shall be employed Ill either Of the
other two the departments OF the state Govern
ment, as expressly defined and limited in the Con-
stitution and its meaning is that no member OF
the legislative department. as there defined Shall at
the same time be member Of tae executive or iu-
dical departments, there defined, and vice verse.
That is say no judicial officer shall be Governor
Lieutenant Governor, Secretary OF State Controller,
Treasurer, AttOrney-General or Surveyor General,
all Of whom, and none others, in the Of the
third article of the Constitution, belong
to and constitute the executive de-
partment eff the government or a
member OF the Senate or Assembly, which two
! flaa -
article of the Constitution, ooDstitute the legisa-
tive department. So O; each officer of the execu-
i've department-he cannot Delsng 10 the Judicial
or legislative department. That IS TO say he can
no d no judicial office, Tor the office Of Senator
member OF the Assembly. And so OF Senators and
members OF the Assemby-they can hold judi
cal or executive offices comprised within the
cutiye and judicial de artmeDts defined in Arti.
ces and .. In shcrt, the third article OF the Con-
sttution means that the powers OF the State Gov
ernment-not the local government thereafter to te
created by the Legislature shall be divided into
three departments; and that the members OF one
department shall have part il the manage
ment OF the affairs OF either OF the other
DEPARTMENTS except in the cases
hereinafter expressly directed or permitted,
In the earlier periods 81 English history, the
King actually presided in Aula Regis the rude
Court of the tlmes-anJ, in person, clsred the
lag az well executed IL This possession Of the
power to both dec.Ere and execute the law by the
same artment OF She Cove; nnent led to frequent
abuses, with which the trainers of the American
Constitution were familiar, and against which they
therefore sought to provide safeguard by separat
ing the judicial from the executive and legislative
powers so far "a it could be done without strippag
either of the latter Of such judicial powers as are
indispensable to the proper and efficient working Of
their owa moro appropu tie functions. Hence the
rule that there should be one department to make
the law one to declare the law. and another to exc
cute the law; and 10 secure, SO far possible all the
advantages OF such rule, thefurther rule that each
department should be composed Of different per
sons or-which amounts to the same thing--that
persons vested With the functions OF one OF the d.
partmen;s should not exercise the functions Of
either Of the others, EXCEPT in expressly d.
rected or permitted in the Constitution itself.
In the case Of Neyman vs. SOuthar6 the decision
is delivered by Chief Justice Marshall, and is very
elaborate ON this question of the distribution of
powers, He says: q The difference between the
departments undoubtedly is the Legislature nakes
the Executive executes and the Judiciary eonstrues
the law"
wish to refer you also to the Debates in Con.
gress in the case OF Jonathan Robbins, where he
surrendered under the extraditi0n treaty to the
British Government. The argument made 5y Chief
Justice Marshall on that occasion hiss been eoustiti
t0nal aus horty from that day 70 this L. Is 10 most
Of the books. Judge story refers TO il in this
! language; :" 1t separates the Executive from the
judicial power by lirv distinct and distinction
50 wise that all approve it."
There is brunch Of this case that has not been
touched upon directly By Judge Darwin, and it is
this: Whether no the provision in Section 10 is
self-eNssptiDg Whether it operates Of ITSELF indie
penden. OF any legislative action or whether it re-
quires legislation TO put il IN force claim that
the first part OF the provision, which gives the Gov
ernoF power to renoye, may not require any lesis-
aiIYs action, but he balance Of It does rsauire
legislation to put 1t in force. In the seth Cal tie
PeoDfe W Sacramento county, our Sl3nrern Coslre