Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-06-07
srEEoH OF Ron. ". H. SEARS.

Directors, opened By sc argument en- the
question Of jurisdiction. The following is
the
SPEECH OF Ron. W. 4. SEARS.
liz sers-H the Court please During the argu-
ment yesterday, counsel for the people replied TO
some remark by Judge Darwin in regard - there
being some political complexion CONNECTED with
this proceeding. ] desire 70 say one word, and
would rot mention il were it not that il calls for
reply because the matter is entirely outside Of the
record OF the case. ! think counsel for the people
said That this Court could do nothing worse than
what was embodied IN the report Of the special
Commission appointed by Governor Perkins, and
that in the Directory the majority Of the people
were not represented. Now when the proper time
comes in the proceedings IN this case to introduce
our testimony We may show TO the satisfaction ol
this Court, ana OF counsel the other side, that
the Executive Of the State did take the necessary
steps to have the minority represented. II is oul
desire to keep, in the argument. as well as Ia the
whole conduct OF the case strictly within its record
for when person travels outside Of the record II i
almost sure sign that he has got no argument
within the record.
Counsel upon the other side, representing the
people, dwelt at length upon the question CT IT.
competency. While he admitted that Incompetency
is not charged in this preceding, ana is MOI pari
Of the record, yet to show that the Superior Courts
had no jurisdiction over the question OF incom
potency, he referred 10 that 70 show that this
Court had original jurisdiction in this case Now
there have been many c1ses in our Courts. where
TIE question OF ine0mpetency of the oficehoder has
been determined and adjudicsted. There are many
officers that require certain qualifications to make
them competent TO fill an Office. For
instance, superior Judge; the Con-
stitution requires that he shall have been
admitted to practice in the Supreme Court Of the
state. Now suppose the people had elected SUI
perior Judge who mad not been admitted to the Su
preme Court CT the STATE, does counsel contend
that writ OF quo lCaTTdntO would u t lie TO ties;
n as
suredy it would. There are ether officers that re-
quire certain qualifcat ons. Take the Harbor Com
missioners The law requires that they shall not be
interested in any vessels among other things, In
der to render them competent to Gil the office. III
the fourteenth California, in the case of the ap
pointment OF pilot, that question is there de.
terrnined. II is the case Of Palmer against Wood
bury. IL IS case where, in order for person to be
competent to ill the position Of pilot. that he
should be citizen OF the United States that he
should be u years old and that he has served on
board OF pilot boat for term of two years IN the
harbor OF San Francisco. The Pilot Commissioners
appointed man as pilot who had not served that
length of time. and therefore he WIS incompetent
and an action brought in the District court tC
remove him from Office, upon the ground of his not
having served two years required by law. In that
case the Court say Il read from the syllzbus):
" NO appointing power IN this State can deter
mine conclusiyey upon the capacity of the ap
pOintee to hold office. That question may be
examined in the Courts"
The ground OF this decision is that Woodbury. wa;
ineligible to this place because he had not served
for two years on board pilot boat. On the trial in
the District Court, the Court dismissed the com
plant upon the ground that the facts, If proven,
would not entite the plaintiff to recover, and the
Supreme Court reversed that decision.
SO in this case. Ii the Governor Of the State had
appointed man Prison Director who was not o
citizen when the law requires him to be citizen, il
would be incompeteney, and an action would lie 70
remove him on that ground. The definition OF in
in TutK- kaf
able not competent Can't act with legal efficacy.
Webster says: No legal fitness nor competency.
Counsel yesterday dwelt upon the theory that in-
competency refers only to mental incompe5ency,
he referred to lunacv, unacy seemed to be rnnning
in his mind. We are not surprised at that from
the position he has taken in this case. But there
are various other disquaifcations. 1t means
legal disqualification more than mental. v lille
there may be legal and moral and mental incom
potency, and perhaps physical incompetency, We
claim that any one OF these ot5nses, il such they
may be called, could be tried anddetermined by one
OF the Superior Courts of the State.
Now, in regard to the distribution Of powers
Judge Darwin has gone over this question very
thoroughly. He has almost exhausted the argu
ment inrelation 70 that hut counsel on the ctheI
side dwelt specially on Article Ill, Section l. which
reads:
The powers OF the Government of the State Of
California shall be divided into three separate de
partments-the legislative, executive and judicial
and no persons charged With THE exercise Of powers
property belonging TO one OF these departments
shall exercise any functions arpertaning to either
OF the Others except in the Constitution express
ly directed or permitted
Counsel for the people claim that this is the only
exception that found in Section 10 Of the Constitu.
ton. The old Constitution had precisely the same
language that the new one has ir Is not changed
10 a letter. And what did it mean in the Old Con
sututlonf Why, it referred most assuredly TO the
Court OF impeachment, the Senate Of the State.
That was the exception, and they added nothing
farther.
Properly belonging to one of these depart.
ments." Now does not the examination of this case
properly belong to the judicial departu ent What
authority has this Court to exercise the various
powers under our Codes TO give protection 10 the
Prison Directors 10 this case You have to sub.
pena witnesses from afar. What power has this
Court to compel a witness 10 attend here from a
distance beyond the thirty-mile boundary? Sup
pose they refuse TO come. Can This Court commit a
witness! Most assuredy not. Can this Court issue
an order for Comm sion to take the dispositions
OF those witnesses l have my doubts about that.
And uniess this Court organized can exercise and
call to its and the necessary provisions of the Codes
OF TINS state which throw protection around the
citizen and give him what under the laws, may be
required for bis protection then this Court is not
competent to near and determine this case ] don't
think that the counsel for the people viii claim that
this Court can exercise those functions under our
Codes that it can exercise all the functions Of q
Court, because there is no machinery provided for
such exercise.
Article w., Section 7, Of the Constitution says
Each house shall chose its officers and Judge t
the qualifications and returns / its members"
In 1880, speaking OF this question Of competency,
the people of the district composed OF San Nsteo
county and portion of San Francisco elected Mr.
Destv Senator to the Senate of tbis State His
case was examined into by the Senate, sitting with
judicial powers. It vas shown concusively that he
was not citizen Of the United States that he was
wholly incompetent to 6ll that positon AID there
fore he was removed from Office. That is a Court
provided for in the Constitution.
There is another question that comes to nv mind
in the discussion OF this case and it is this: That
this Court, organized is called upon 60 pass upon
the c0nsttutiouaity OF that section OF our Consti.
tuition. You are called upon to eoustTue our Con.
stitution, 3 duty and prerogstive which certainly
belongs exclusively 70 Courts, according to our
republican government. You are called upon to
decide whether or 10 you have GOT the c0nstitu.
tiona jurisdiction in this case, and you must deter.
mine that by passing upon Article OF the CoRstt-
ton. We have tried every way in power to
bring this case into the C9urts. We have made the
offer to counsel fof the people that IL they WOuid
transfer this action into any Superior Court in the
state, care not which one 1t might be, we would
waive any question Of Jurisdiction, We would waive
any question Of service or time, il order that this
might be sdjud Gated in Court Of justice in the
state upon It's merits We make the prop osition TO
them now.
Mr.. FlournoY-Do yer think you en- give iuris-
Ciction 20 i Court by eonscntI
Mr.. Ssars-We viii make up case wherein the
Court csn have jurisdiction.
ar. Eoumoy-i ask you as lawyer. Can you
do it No.
ar. Sears--we viii make up case and go to the
Supreme Court, and let the Supreme Court decide
tins question OF i1rtsdic ion We claim that the
Superior Courts have got jurisdiction. and they
alone The question Of jurisdiction in these cases
has been decided many times. The case e Marks,
in the 45th California. BE tried for misc nduct
In office. There IL the elss Of Kirkpatrick, the
Sheriff % San Francisco. We have numerous in-
stances where the Superior Courts have taken iuTs
dicti0n but defy tue gentleman 10 find prece-
dent decision in any state OF this Union where g
Court has been organized as this on with ths Ex-
eoutVe as Judge, to try person char ed with al
criminal eheGso. Ny learned associate states that
perhaps did not make It clear IN that proposition
70 make up g case to test the i1risdict oil Of the
Executive, sitting : Court, u try and determine
the case We propose 70 rake up & case,
and make i clear and complete, there be no
question about 1t, and submit this matter 10 the
supreme Court 70 Determine whether the Executive
can sit IS Court and try and determine the
question Of misconduct competency or neglect Q.
duty Of the $ ate Prison Directors. Article VI.
Section 5, Of the Constitution OF California says
" Tne Sape-ior Court shall have original iurisdic-
ton 10 all cases in equity and IN sll cases at Law
which involve the tte OF possession OF real prop
cry or toe legality al any tax inp0st assessment
toll or municipal f1e, and in ali other cases in which
the demand, exclusive Ct interest or the value OF
the perty in controversy. amounts 70 800 and
"a al cTfBiHa3 cases aHoisnting 10 fsl0nu ana
eIseS Of Htisdewea5oT NOT ottsY1rsss proriGsl fo4
actions of forcib!e entry ad Gessi1ier Of prcee
ings l. insolvency; OF actions 20 prevent or abate
nuisance; q al matters # probate; Of divorce sDd
for sauuimsut Of marriage, ara of az suck special
and proceedings arc not Cthersciss prcEfdei
FIR"
IN The charges contained here they charge felony,
or what amounts to felony. They easTge frzud.
They iadirsetIy charge the directors With the en-
bszzien1sat Of pubic money! :. Not otherwise
p-ovidea tor means that the Superior Courts have
original jurisdiction q 81 cases and proceedings ss
axe D0s oshsTFise provided for. That would cover