Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-06-06
COURT OF INQUIRY.
EEARIsG OF CHARGES AGAIEEr THE
FRIsoH DIRECTORS.
The argument Upon Demurrer as TO the
NEUTRALITY-SUSPICIOUS. for Conduct
OF the Hearing.

charges against the state Prison Difeetols was
opened yesterday, Judge Wallace Of Napa sitting as
aid 10 Governor stonenan. The Court Of Inquiry
occupies the rooms in which Department Two Of the
suprcme Court is held. The Prison Directors were
represented BY Charles B. Darwin, W. a sears and
4. L Hart, and the State by Colonel Flournoy
THE RULES.
The following are the rules adopted for the con
duct Of the hearing
Ruls For the purpose Of keeping a corYec
record oi tle proceedings p K. Stockton Is hereby
appointed Secretary and Shorthand Reporter during
the pending iyestg ttion, unless sooner discharged
Rule I'll shall be the duty Of the Secretary Il
take doan ia Shorthand al motions and points o.
counsel 10 the preliminary proceedings, aud during
the Investigation al rulings and decisions Of th,
Governor OF 0y his authority, al testimony Of wit
nesses and such other matters and things as tbs
Governor may direct, and write it out IN longhanc
and furnish the as directed.
Rule 3-Ilmothy Lee Is hereby appointed Balff
whose duty shall be 10 preserve order serve pro
cess, call witnesses, and perform such duties may
be required Of him
Rule 4-The practice and procedure N the supe
ri0r Courts Of this State, defined in the Code o!
Civil Procedure far the same is applicable il
hereby adopted Es the rule OF procedure in this in
vestigatiOn.
Rule 5-The Attorney. General with his assistant
will have the right 10 appear and conduct the exam
ination on behalf Of the people, the respondents
personally, and with then attorneys, on behalf O
the respondents.
Rule 6-Auy witness refusing to answer proper
questions after fully understanding them, or refus
ing 10 be controlled, OF governed, OF in any other
manner becomes cOutumacious so 10 deprive
either party OF fair examination, the right is
hereby reserved in furtherance OF Justice to strike
out all testimony that such witness may have given
Each witness before testfyng shall be sworn as are
witnesses in Courts Of justice in this State
Rule When ruling or decision On any point
or question during the examination Is announced
by Judge ". c. Wallace, sitting with the Governor
the same shall be cOnsdered the ruling or decision
Of the Governor unless the latter reyerses, annu!s
or sets aside the same
Soon after the opening OF the session yesterday
morning, Ar. Darwin opened the argument upon
the demurrer fled BY the defense, and his remarks
were as follows:
sPEEcH or HON. @. B. DARWIN.
II the Court ease, the accusation filed against
the defendants under this pleading is
hirst-lhat said above nlue- defendants plead
that his ENcellency. the Governor Of the State oi
C1liiorni1 has not jurisdiction, and has not judicial
power io hear, nor % try, nor 70 ty aud determine
the subject Of this action, the complaint, nor
the written charges nor the specifications Of said
complaint, nor au, of them aud said defendant.
aver that the jurisdiction TO hear and try and tC
Try aud determine tue same is exclusively in the
superior Court u the State OF California in aud fol
the county wherein tie conduct coupIa.nsd Of i.
claimed On have taken place. and defendants pray
that said complaint NAV be qupshcd.
ALcA To make assurance doub.y sure. dettn1Eute te
further denur % the sad complaint, and Ia the
written charges and epecihcations, and to each oi
them ttcause on ths face thereof, AID Of each Of
the sanc, 10 -ppcars thar His ENcelency, the Gov
eTnor etc, las jurisdiction the subject OF the
action. ard has no Judicial power, ne,her TO hear
nor 10 try, nor TO try and determine the subject Of
the action, nor tho complaint, nor the writer
c'larses, nor the specifications, nor any Of them
snd 80 tcieudauts pray that the same be disnsse1
Ne say first that the Governor has no power q
try and determine; such power is judicial power
We expect 20 show completely thu all ildci3
power Is vested hy the Constitution III csrtaia
Courts named therein.
Article VI, section J. Of the Constitution reads
The judicial power Of this State shall be vested il
the senate, sitting % a Court of impeachment, in O
SupTCme CJu I, Superior Courts Jnstiees of tins
Peace, ard such inferior Counts the Legislature
may establish IN any Incorporated city or town. OF
city aud county.
This Court is not named therein. HIS ExceiieDcy
The Governor Is not named, Is the Court over
which lI1 may puesiie namei ia that section. I cite
also Section oi the same article. giyug the powers
ol the IpTeme Court, ia which nothing Is found
wh h t.ds in the cast to put aIy power to Try any
matter ~ the hn'ts ft the Governor Tprsias to
Section Fe have power. -hich are invested in
the Superior Court, aid viii call attention now TO
the facI that there s this statement IN thai article
After eoeferriug certain powers upon the Court i.
proceeds to say, Aud sll such special eases and
proceedings are not otherwise provided for
Now t7at seems 20 be the section from which the
Cour, or anything acting as q Court, assuming it to
u
ers by express grant are IN the said Courts beyond
question. II The Governor cqims It be ought %
show as clear grant Of power as those Courts can
show. Gaining their jurisdiction uuder the Cox sti
tuition. The Governor must overcome the presuup p
ton which holds against him by not being
named in Article VI. Of the Constitution.
The power there is given to the Courts.
The power seems 20 be thus given to all persons
and all parties who may Justly claim 70 OK srcise
ludici1l powers, and we fad that the Governor Il
not uainod in that article. II his EXceleney should
claim the power under the Constitution to act, it
ought % be as clearly given as II Is given to the
Others named therein. There is a farther thought
that the power to exercise this power creates pre-
sumption against Itself, from the absence OF such q
grant tn any Constitution. II am rightly informed
and my Inquiries have not extended through all
the Constitutions-but am informed that there is
no Constitution that conftrs judicial power upon
the Governor. Again, one would naturally ask why
should they transfer from department the
power c1mplet ly invested in that department and
deposit il in another? We find it not given. Hav,
ing been fullY and completely and wholly and eX
clusivey invested in some Courts, should not the
party furnish some reason Why the Constitution
does not name that party as having such
power. More than that, one naturally asks
for what reason should it be done
There are Courts Of equity tnat have been invested
with equity. Another party claims part OF those
powers what sufficient reason is there that part o.
that power should be givn to another, especially
When the ether is named and vested with that
power, and when il is so clear that the Courts are
vested with It, and so claim Besides, the powell
that Is claimed % have beeu given clearly belong
rg 70 the ordinary Courts. More than that, by tat
gay, the conduct here charged IS criminal conduct
hillW u may bc said that whilo u is CRIMINAL con
duct, this Is only 70 inquire INTO IL fer the purpose
81 renewal. Nevertheless, it is criminal conduct
and Is so defined In the Code-Seotion Is OF tbt
Penal Code: " crime or public otfense is an act
commit or omitted IN violati. OF a law forbid
ding or commanding Il, and TO which Is annexed
u2on conviction, certain punishments.' Il oecuJs
- ne 20 ray that the proposed removal Il
this case IS for q viola.isn Of law. Il
cannot be for anything else. It is for violation
Of the lag To- the omission ta do du'y imposed by
las7 which under section l76 Is a misdemcinor. Il
Is toT misconduct IN Office, which Is crime, and
there is no room 10 this case for the Governor 70
act merely upon his discretion. for If that was In
tended i would have been said, ia other cases i:
has been said, that su incompetent person can be
removed 40 the pleasure Of the Executive, which
comes from the appointment itself. unless the ap-
pointucut be for term, or unless the removal be
conditioned upon a state af crime There are at.
tached here cert2in Turishmsuts FOR public Of
tcuses-death tTprislument, tine, rcBigrI{ from
Qgce. Ihat is a crime and even the rules which
We havo hen ignore the Penal Code, and introduce
The Civil Code, which, Il Il be A crime, IS deuyIng to
the defendants the rithts which are guaranteed to a
defendant by this Co1e Of Criminal Procedure, and
without ah hich there be no fair trial and no
proper removal.
Nov et US read this section upon which this
power is olaiuisd e. res, Article y of .h, Coustta
lion, the lsster part q the section The & svernar
shall have The power 70 remove eitheroi the D.
rccslrs for misconduct iaco npstcncr or neglect Of
duty Nos, Z il hsd stopped at that, the CUES
ton would stl remain open determining this
iucompsteney, anything that follows fails to de-
ternire the tribunal vested With the right ard es-
pccAilY when We remember that judicial tribunals
exist which have hsd thst power from time i'm
mortal snd have exercised IL After an cpo3r-
tcu!tv 70 be heard UPON Srstien charges Now
where was the Opportunity to be heard 20 be eXer.
Cissd suppose thst it need not be exercised at
AL suppose Tie opportunity 20 be heard must be
claimed. Il not eiAm,d, il Is Confession oI the
accusation made against the party, and no trial is
necessary ~ al, AID al thst needs to be
done Is 70 remove. I suppose there are css 5
where men would never make a oou-
test. man who hss been convicted
There would need 10 be 60 c9utestation. 10 answer,
no al eSatl5ns would want 70 Be denied, No triG TO
see whether the allegation Is true or not. The
power 20 remove Nculd be conceded But the mo-
niens that tue defendant appears ard denies the
allegation or even dsnuss to the fact as being IN
Sufficient thsr uic!sl inquiry slises- not merely
the exercise Of the executive power, but judicial
transmitting & 20 = Court competent ane hs, sES
appointed by the legislature % ~ II. such S
Court has always existed. AID proceedings & this
kind hsVe always been tried there. The SeI2te-
that Is = Court hy the Constitution called q Court
and provided as Court BY tie Co1sfitution- Ghe
Superior Court is another Court appqiuted BY the
Legislature - try those eases not tr-sole before
the Senate Tue thing ought % be tried By a
tribunal ft % try il. Many Court, ike the Courts
OF equity Of ED tines. sent cut rneiT lssles
70 Courts that c,uld Try them Il Il nothing
unusual n something comes hefoTe tie Governor
which he csnnot psss oH he mus; ss1d L % those
thst cas- PISS upon &, aud have Il deterniinei lc
littlr frGt her: u ssCnIs 20 be apparent, fraz
further rasdrE OF the artclc that my cons E7c oa