Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-06-07
spEEoH OF HoN. ". 4. srAEs.

Directors, opened By Sc argument en- the
question Of Jurisdiction. The following is
the
SPEECH OF BON. ". Il. sEAEs.
Mr sears-n the Court please During the arg1-
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 to say one word, and
would rot mention il We're it not that it 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 embodled IN the report Of the special
Commission appointed by Governor Perkln3, and
that in the Directory the minority OF the people
were not represented. Now, when the proper time
comes in the proceeding in this case to introduce
our testimony, We may show 70 the satisfaction oil
this Court, and u counsel on the other side, that
the Executive Of the State did take the necessary
steps to have the minority represented. Il is our
desire to keep, in the argument well as Ia the
whole conduct OF the case strictly within its record
for when person travels outside Of the record it il
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 of IL
competency. While he admitted that Iucompetency
is not charged in this preceding anG is not part
q the record yet to show that the Superior Courts
had no Jurisdiction over the question OF incom
potency, he referred 10 that 10 show that thli
Court had original jurisdiction IN this case Now,
tie question OF ncompetency Of the oficehoder has
been determined and adiudicsted There are many
officers that require certain qualifications to MAKE
them competent to fill an office. For
instance, a : 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 a Su
perior Judge who had not been admitted to the Su
preme Court Ct the Safe, does counsel contend
that writ OF quo trGTrGatO would nat lie TO test
the competency OF that Superior Judgef Most as
surediy 1t would There Are other 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 il the office. III
the fourteenth California, in the case Of the ap.
poiutment OF q pilot, that question is there de-
terInined. II is the case of Palmer against Wood
bury. IL is case where in order for person to be
competent to Fill the position Of pilot, that he
should be citizen Of the United States that he
should be q years old. and that he has served on
board OF pilot boat for term of two years the
harbor of San Francisco. The Pilot Commissioners
appointed man as pilot who had not served thai
length of time, and therefore he was incompetent
and an action vas brought in the District Court u
remove him from Office, upon the ground OF his moi
having served two years required by law. In that
case the Court say q read from the syllabus):
" No appointing power IN this State can deter
mine conclgsiveiy upon the capacity OF the ap
pointee to hold office That question may b.
| 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 il
the District Court, the Court dismissed the com
plant upon the ground that the facts, ii proven
would not entitle 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 3
citizen when the law requires him to be a Citizen il
would be incompetency, and an action would lie tC
| remove him on that ground. The definition OF in
competency in Abbotts Law Dictionary says: "Nol
able, not competent. Can't act with legal efficacy.
Webster says: 'No legal fitness nor competency.
Counsel yesterday dwelt upon the theory that III
competency refers only to mental incompeseBcy
He referred to lunaey iunacy seemed to be running
in bis mind. We are not surprised at that from
the position he has taken in this case. But there
are various other disqualiications It means
| legl! disqualification more than mental While
there may be legal and moral and mental incom
potency, and perhaps physical incompetency, We
claim that any one OF these ofsnses, il such they
may be called could be tried undetermined by on,
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 exhauiJed the argu
ment in relation to that but counsel on the othel
side dwelt specially on Article H., Section I, which
reads;
" The powers OK the Government of the State o.
California shall be divided into three separate de
partments-the legislative, executive and judicial
and no persons charged with the exercise Of powers
properly belonging TO oue OF these departments
shall exercise any functions arpertaining 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. Ii is not changed
10 letter. And what did it meen in the old Con
stitution 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 ease
properly belong TO the judicial deparsu ent What
authority has this Court TO exercise the variou:
powers under our Codes to give protection TO the
Prison Directors in this case You have to sub
pena witnesses from afar. What power has thi;
Court to compel a witness 10 attead here from a
distance beyond the thirty-nilo boundary? Sup
pose they refuse to come. Can lllis Court commit
witness Most assuredy not. Canthis Court issue
an order for Comm ssion to take the dispositions
OF those witnesses l have my doubts about that
And uniess this Court as organized exercise and
call to its and the necessary provisions of the Codes
OF this State which throw protection around the
citizen and give him what, under the laws may be
required for his protection then this Court is moi
competent to near and determine this case. don'i
think that the counsel for the people will claim that
this Court can exercise those functions under our
Codes that it can exercise all the functions Of
Court because there is no machinery provided fol
such exercise.
Article w., Section 7, Of the Constitution saws
the qualifications and returns its members"
In 1880, speaking OF this question of competency
the people of the district composed Of San Mated
county and portion OF San Francisco elected Mr.
Desty Senator to the Senate of this State His
case was examined into by the Senate sitting with
judicial powers. it was shown concusively that he
was not citizen Of the United States that he was
wholly incompetent to Gil that position and there
fore he was removed from Office That is Cour;
provided for in the Constitution.
There is another question that comes to my min
10 the discussion OF this case and it is this That
this Court organized is called upon to pass upon
the constitutonsity of that section OF our Consti
tuition. You are called upon to cOpstrue our Con
stitution, duty and prerogstlve which certainly
belongs exclusively 20 our Courts, according to our
republican government. You are called upon to
decide whether or 10 you have got the eonstitu
tonal jurisdiction in this case, and you must deter
mine that by passing Article of the Constitu
ton. We have tried every way in cur power to
bring this case into the Courts. We have made tbs
offer to counsel for the people that il they Wond
transfer this action into any Superior Court in the
state, We care not which one IT might be- we wouic
waive any question Of jurisdiction, We would waive
any question Of service or time, IL order that this
| might be adjud Gated in Court Of justice in thl
State upon its merits. We make the proposition Il
them now.
Mr. FlournoY-Do yog think you can give juris
cietion to Court BY consentf
Mr.. Sears-We viii make W a case wherein Ia.
Court can have jurisdiction
1r Fiournoy-I ask you as lawyer. Can yor
dol No.
ar Sears-we viii make up 5 case and go to tn,
| Supreme Court, and let tie Supreme C5urs deci3.
this question Of igrisdic ion. We claim that til.
| Superior Courts lave got jurisdiction, and they
alone. Tne question OF jurisdiction in these case,
! has been decided many times. The case Ct Marks
/ in the 45th California he was tried for misc nduc
/ IN office. There is the css5 Of kirkpatrick, the
/ Sheriff Of San Francisco. We have numerous IN
stances where the Superior Courts have taken jurs
dicti9D, but | defy tue gentleman 70 find prece
dent or decision ia any state 81 this Unian where
Court has been organized as this on with the Elk
ecutive Judge, to try person ehsr-ed with al
| criminal ofenso Ny learned associate states tha
perhaps did not make it clear IN that proposition
| to make up case to test the jErisdict on Of th,
Executive sitting as q Court II try and determine
| the case We propose 70 rake up 5 case
and make il clesr and complete, 50 there esn be nj
1 question about it, and submit this matter 10 tn
Supreme Court to determine whether the Executive
! can sit IS q Court and try aad determine tn
! question Of misconduct, competency or neglect o
auty Of the Safe Prison Directors. Article VI.
Section 5, OF the Constitution OF California says
:" TIE Superior Co1rt shall have original jarisdio.
ton 10 all eases in equity and In sl cases at las
which involve the tile OF possession OF real prop
cry, the legality q any tax inpost assessment
toll municipal fine and in ali other cases in whic.
the demand, exclusive of interest or the value o
the property IN controversy. amounts 70 $500. al.
N al crfleiIiG. cases amounting 70 felony, IN,
es1sss Of HisaessgIoT not otherwise pr0rised fer
q actions q forcale entry and Getier of proceed
!ns i insolvency; Of actions % pr-vent or ahate
nuisance; Of al matters n probate; Of divorce an
Tor znnuimsnt Of marriage, ard Of ali sffct sBectG
eses and pToesedsJs as gre not otherrise rortia
for"
In TIE charges contained here they charge falony
o. what amounts 70 feloEy. They Charge fc2ud
Trey indirectly charge the directors with the en-
bszrienent q pubic moneys. " Not otherwis
provided FOR means that the Superior Courts har,
crigtna jurisdiction q 81 czss and Proceedings a
are not oshersise provided for. That would cove;