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

THE powers OF the Government Of the state 0
California shall be divided into three separate Ge
parIments-the legislative, executive and judicial
and persons charged with the exercise OF power
properly belonging to one Of these department.
shall exercise any functions appertaining to either
the others, except in the Constitution eXpresss
directed or permitted"
Now there can be no doubt thst the articles of t
Constitution will have TO be read together, and il
that the legislative power is given 70 the Suprem
Court and the Superior Court and the Justices
Court, and if it is also in that same onniPotent in
strument given 10 the Governor, certainly 1t shoule
have been In terms as express as those giving It
the Courts but thsy have ali got to be read to
gether. The Supreme Court has not Superior
Court powers, nor have the Superior Courts
justices Courts powers, and these are no
all given TO the Executive. Certainly
it is Just TO claim that ii it is not directly given il
Section TO- where il is claimed TO be found II any
where il is not permitted by Section 10 BY IN,
words, and those who claim that II was permitted
claim it without the ztlthcn OF the Constitution {
base their Cain upon II don't say he may
aud it don't say he must permit it
but express direction must be 10 sSy
you must permission must be t. say
you may, and neither ct these terms are used 81
the Governor is neither directed ncr permitted tC
assume Judicial power to bear. Il w0ud have bser
so easy to say the GovCrEor may hear and may trj
an accusation, If contested, or the Governor nus
hear and try all Accusation, il contested and it can
not be possible 1t intended aud that those thai
made Il we're 50 devoid OF the power 10 express theii
other. I am It a politician. I thank the gooj
God, l have hal enough to do with politics Ter
loIg tin aud del't mean to have any more Sul
it is said b. friends Of mine that are, tha: TIE
leg satve plwer limited in Section lola order &c
keep the PTl5cn Drecsors cut o. politics the pare.
in tnis prison business of politics. will take
it for granted that it was. hope 1t was. 1t was
put intJ the hands Of the Directors | suppose ion
the reason-t was put into the hands of the Direct.
OTIS appointed for long time unless Tor crimes
statute crimes llld down in the Penal Code-they
were removed ;.but to let the Governor remove and
try wou certainly tend to bring il into the very
politics il was cant TO be kept cut Of. Another
thought An Ctfce properly, and an Ured office
conditioned on NJ Official macoudact, creating and
Iaianteeing A triat sucI misconduct, IS yet
more property, aud it II be a property 1t NUT be
take from the holder oy due course OF law. &C.
cording 10 Artice J., Section u, which | need
not read and / clan that to ce taken
from the BIO Ger bT liz EXcel'ency, and
this sort of a tribunal would not do h te taken
by due course Of law, because whatever may be said
else, 1t Is certain that this is novel procedure, in
augurated for the first time, that needs to pro-
vide rules for itself, and for that purpoee avail them
selves Of part OF the procedure OF the State,
at least it may be safely said new tribunal, not
according to due course OF common lsw-not accord
ing to due process Of law. l know very wsl that
removals from Office are net required to be done by
Jury and quo }rdTTdHtO. The modes Of removing
from Office in oiden time did rot require jury and
it cannot be claimed to be in tine Courts Of common
law that jury must be used and it is not for being
in Courts of common law, because jury can be got
There Is no Court but the tribunal itself, and that
fact not being by JIdge-a regular constituted
Judge, Judge fJr all purposes, for a, b, and ID,
to lizard, anu net for particular class OF per
sons-for all tine. Such tribunal is not tribunal
that tries things according to ue process OF law
and so it is in coutavention Of that provision of the
Constitution whicE deFrives party OF property--
OF assured propertY-that can be taken from him
only upon the condition OF crininllity 10 be tried
by due process Of law, and q tribunal existing by
70 q 81 IL
that objection agains. this proceeding.
Article ". Section s. / call attention to, if your
Honor please: The Governor, Lieutenant Gov.
eruOr, Secretary of STATE, Controller" land
so on, NJ the officers shall he liable to mpeach-
ment Tor any nlsdemeRnur in oiTi:e bat iu igmeut
il such cases shall extend only to removal from
Office, and disqualification TO hold any Office OF
honor trust or profit unde the State; but the
party convicted or acquitted shall nevertheless be
liable to Indictment trial and punishment accord
lag to law All other civil ofhbers shall be tried for
msdemeanor in office in such manner as the Legis-
lature may provide"
Now if this complaint don't charge a rnisde-
meanor, don't charge some crime under the Penal
Code, II is not good complaint and caIse to make
removal but all the facts are charged it is 4
criminal accusation, there Is no doubt about it. 1t
is thoroughly q crime. thing for him to remove
from Office Tor is a crime. IL has to be under the
Penal Code, part of Il, aud Judge Thornton de-
cideG-the decision is here IN the building; | am
quite familiar with II, aud my associate ne saw
it this morning-it dee des Ia the ease OF Kirk
patrick. in San Francisco, where he was proceeded
against for removal from Office, that il was s.
CRIMINAL r0c dure.
AN other Off ers shall be tried for n1isdemeanor
in office in such manner rs the Legislature may
provide" Now don't that cover tbi5g Yes there
IS the Contribution there covering this, and tae
legislature must provide Tor it They prc7ide3 in
Section AZ all rignt. Let That provision b used
foc that they have provided. Ii they have not pro-
vided for that then there can be no trial. The Su
perior Court again has jurisdiction, because not 9th.
erwise provided for "lf it be not otherwise provided
for" Now this tribunal-and | say it, OF course
with Infinite respect that respect that comes Of
long professional career this tribunal displays its
embarrassment by importing a distinguished gen
tleman Judge sit b7 the side Of his Exceilency
n the disposal OF this Inquiry showing that the Office
OF Cove does not possess does not imply the first
attributes that have always been considered nee
essary Ia the disposition Of those cases. While we
feel c1af ient in the Justice and the tegTity-and
even 20 further on that point as far as it can be
obtai9e1-iu this tribunal still the point is that
the tribunal is not the that is recognized by the
law for the exercise of tins power. Now,
this is a very serious charge this charge
may d. plvc them of the right OF suffrage that are
beng tried here. turn 10 Article AA., Section II
of the Constitution g Laws shall be made to eX-
clude from Office serving on inries and from the
right OF suffrage, those who shall here fter be
victed OF brib -ry perjury forgery malfeasanse in
Office" To remove those men upon this charge by
any tribunal it should be by tribunal adequate to
assume procedure in criminal acts adequate to
do Justice between all the parueS, upon principles
that have been yeperated from the earliest the
present time. These persons removed for ma3fea-
sance in office should fall within the law that was
passed depriying them OF the right Of suffrage by
that Section 772. | claim that is obtained
by Article XXII, Section II, OF the Constitution.
which read '.All laws relating to the present iu.
dci system of the State shall be apple sbe to the
judicial system created by this Constitution, until
changed by the legislature" If it has been changed
to conform to it and il it has not been changed it
would be all there, and therefore obtains and that
is the law by hich thes' men snail be trie1. This
procedure deprIves party Of property without due
process Of law, against the fourteenth amendment
Of the Constitution of the United States OF course
it must not be understood for moment that l am
claiming that trial to Temoye Directors, TO re-
move person, Is attended by exactly the same
formaity that ether trials a-e, and the same law
obtains in Ii that obtains in the trial of some ether
matters. By no mea s. It's governed bV its prIn-
ciples; but still those prlnep Pies laid down aad
esta 5hshed they are hoary wi5h age, and well
known to all law ers.
This proc dure depriYGs party of property with.
out due process ct law, against the Fourteenth
Amendment cf the Constitution Of the United
States. The old mo1es OF such deprivation are
aband med and an innovation b-en introduce !.
The due course Of Las is abandoned and a new pro-
cess introduced If this tribunal presides this
question, the old ores require Mt least the action OF
q Court-a perfectly legal Court-uot q Court ere
ated for the occasion that is like jury than
COuTt-a commission AS it Is ,ometilnes
called. Cont elec et, and officers OF which are
clicked properly, whose qualifications Tor duties
fiN I'd by Law. Men that judges, OF age aud
persence and educEtion; Of judges that IA a pro
Tessioaai occupation of Judges that were SUI
rounded and coated over with traditions
OF judges, men that always were since
tuey began TO hold Office expected t.
be JUICES. judges for al time, loug time
llsts aud uos for a Court elected for = uomsut
that pershes with its clos. The old removals from
office require least the action or Court to hear
by leg old methods, not by one for which new
rules hS to be provides, oU' the very tribunal IL
self
an through with that part OF ny argument,
End proceed uOT to another p0iGt, that is this
Bot il is cisitn=d that the Governor is not Judge
only parsy inquiring for the truth Answer
The Governor should try this lse has % use al
those powers which constitute Judge, the very
SINE poser - Is given TO ths Courts. There is not
power be used E this trial that Is not judicial
power there Is not power used by Judge IN ~
gh7t the Governor viii not have to use in this tri 4
Thsre can be DO exercise Of power on any trial by
any Judge that vii not be required in InIs. Ia
deed, defendant i more in the Governors hands
than defendants usually are il Courts for he has 10
right % a jury. II person who tries under
~ is Jldse, 50 Is his ExeelencY
in this case. A person is not Judge from his name
OF effise, but from his official function, and may be
50 from a temporary judicial function SO far az
the G0Tsrnar uses Judicial power, SO FAR ne is 4
Judge II Judges mad the power, aud used it to
make l2T5 Il would be legislative not iuic!al DOW er
But wheu the Sen4te tries cases Of impeachment il
Judicial power. But the senatorial Court has the
sanction Of age, and is open none OF the obiee
tons urged against tha. cf the Governor. For Sen.
at0rs 70 try high funcfionaes has always been true
since anything Is kn9wA about Senators besces It
Is eieariF expressed aud beyoad doubt. Let Us
consider what s involved in tie trial Of the case be-
fore us-ghat powers The accusation charges
neglect q duty d misconduct IN ofiee and asks q
determination Of these and removal from Office
Twenty pieces o. Conduct are specified as sach
misconduct 10 once, neglect of e.iiSal duty, etc