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

LrDht under tbs StEte, Dut tne party cOnIlctSu OF
acquitted shall nevertheless be liable 10 Indictment
trial and punishment according 20 law az other
GIRL oFccss sla!. bs tired fer nsssmedoT az once
IN such manner as the Lsgisl0ttrre may provide"
Now the Legislature has provided falr and per-
feet manner for the srsl OF these cases 1t Is pro
vded IN Section 772 Of the Penal Code, and also IN
the Statutes OF 1871. It admitted by counsel
for the people yesterday that this Is new proceed
Ing--to use bis own language, "sn unheard-oi pro-
eeeding" When the Courts provide laws By when
these Directors may be tried for the osnse charged
hers-ana il there IS any doubt about II, Why not
give our theory OF government, and the custom OF
ages old as the Government itself-why not give
them the benefit of the doubt, and let the Courts
try and determine this easel In case of doubt or
ambiguity, our theory Of government should pre-
vail, aud the Courts Try this case.
wish to call the attention Of the Court to pro-
vision in the Virginia Constitution that this const
tuition has adopted, and believe every Constitution
in the Union contains it. That Constitution was
adopted June Il. 17T6. 1t is the oldest among the
States before the Declaration OF Independence. IL
reads:
The Legislative Executive and Judicial shall
be separate and distinct, that neither shall exsr
else the powers properly belo ging to either OF the
others; shall any person exercise the powers OF
more than one Of them ct the same time"
This Constitution Of Virginia was amended ana
eadopted In 1880, and in that convention Chief
Justice Marshall was member, and this origin2i
provision was allowed to stand unchanged. There
fore | claim that this Is fundamental principle OF
this Government aud Of the states that the depart
msnts divided into Judicial, executive and Iegis-
atYe, and that neither encroaeh upon the juris
dc.iou or functions Of the other The Constitution
itself, after giving the distribution Of powers,
then goes TO work and divides the depart
ments, aud gives them their jurisdiction
Il says what the jurisdiction of the judicial DEPART
ment shall be, and defines the Courts 1t says also
in Article v, Section ], what the powers OF the
Executive are. It says he shall be styled " the
Governor OF the State OF California" II may be
allowed a word here, during all Of this argument
here, he has been called His Excelleney." That
has grated harshly upon my feelings. 1t has too
much OF the sound Of roy atty. 1t sounds too much
like His Highness,' and ask to be excused from
using it. like the simple name OF Governor
Referring farther to the Executive department.
Section 7, He snail that the laws are 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 eoustrue the laws Of
the State or the Constitution of the State. You
hays the power TO I'D vacancies. Article X, Section
l, is the provision under which YOU claim the ewer
YOU Low exercise, and it is embraced IN Ties few
lines The Governor shall have the power t., re-
move 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. II does not
say that the Governor shall hear tuese charges But
it gives him the mandatory power to remove the
Directors for these various ofenses. These charges
may have been preferred and an Indictment
might have been drawn in the superior
Court, and the Court could undoubt-
edly try the case l say ii thtre is
any ambiguity abeut this section, and we claim that
there is because it does not give the Governor the
dhect 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
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
tatsS as may be necessary to carry into effect the
provisions Of this article; and the Legislature, in
the exercise of its will under this Constitution, and
since il was adopted, have enacted Section 772 Of
our Penal Code, under which these Directors can
be tried and removed from office for these ofenses
We claim also that under the fourteenth Amend
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 or mmunities OF citI-
zens of the United States nor shall any State de-
prive any person OF life, liberty or property with
out due process of law, deny TO any person
,ctil its jurisdiction the equal protection Of the
ldtcS"
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
this case denying to these citizens the equal pro-
lection of the lao, and that this State By It's Const
tutional Convention could not pass law in conflict
with this fourteenth amendmeht If it has, it is
void
WHAT s misdemesnor? Section 176 Of the Penal
Code reads thus " Every willfu omission to per-
form any duty enjoined by law upon any public OF
fcer, person Eoding any public trust or employ.
ment, where no spscial provision shall have been
made for the punishment of such delinquency, is
punishable as misGsntsGh0f.
These Directors charged here With an omission
to perform official DUTY That, under the Penal
Code, is a msdemeanOr, and misdemeanor is a
crime Counsel for the people, in his argument,
admitted that if this was criminal proceeding the
Governor would nave no jurisdiction.
Ny. Flournoy-No sir; didn't make any such ad.
mission. There are crimes charged in this COM
plant. The Governor can't put man IN San
Quentin. Some other Court will have to attend TO
that.
Mr. Sears-Now the first specification reads as
follows: "The report OF said Directors the late
Governor George G. Perkins exhibits in the tabu-
lated statement OF the Clerk at San Quentin an ex-
penditure for the fiscal year ending June so, 1881,
on account ii prison improvements and general ex-
pense, of SIS, l23 S5, which statement was and IS
false and fraudulent, in that no such sum was 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