The record-union., 1891-12-14

qualified" All the authorities, all law
writers and all customs agree upon that
definition. Now the law imposes upon
the Sheriff or Coroner the duty of serv-
ing the process and orders of the court.
When they or either of them are parties
to the case or proceeding, when there is
vacancy in the offices, or when it appears
to the court that they or either of them
are disqualified, or when it appears
that by reason of bias, prejudice or other
cause, they would not act impartially or
promptly, then an elisor may be ap-
pointed.
1t is contended, says the Supreme
Court, that another section provides that
process and orders in an action or ''pro-
ceeding" may be served or executed by
a person designated by the Judge, and
that this word justifies the action taken
in this case; but the appellate court dis
misses this point as ill-taken; for the
language "proceeding"-is not Especial
proceeding," and refers to both civil
and criminal matters, and includes all
things done wherein judicial procedure is
instituted.
The court then considers the question
whether the Grand Jury thus created in
part by use of an eltsor, is a jury de facto,
and hence that its legal existence cannot
be inquired into on an application for
writ of prohibition. It is unnecessary to
travel over the extended argument upon
these and similar points-it is sufficient
to state that the court holds that Grand
jury must be selected by rigid adherence
to the legislative will, and that there is
no security to the citizen otherwise; that
as prohibition" lies in all cases
where, as the statute puts it, ''there have
been proceedings without or in excess of
jurisdiction, and where there is not a
plain, speedy and adequate remedy in
the ordinery course of law" this case
was properly before the Supreme Court,
and cases are cited to show that this has
been repeatedly held by the chief ap-
pellate court of California.
The court, therefore, concludes that the
Superior Court of San Francisco ex-
ceeded its power in its method of erect
ing Grand Jury; that the Constitution
and the statutes require such iuries to be
drawn from the names selected by the
twelve Superior Judges of San Francisco,
and that no other method shall be pur-
sued until those names are exhausted.
Three of the Supreme Justices so decide.
Another concurs in lengthy opinion of
agreement. The Chief Justice concurs,
that the appointment of an eliser in the
absence of any finding of Disqualified
ton of the Sheriff, was violation of the
statutory provisions regulating the form
alton Of Grand Juries. But he holds that
the court below would not exceed its
jurisdiction in proceeding with the trial
upon indictment presented, and if not,
its action cannot be arrested by prohibi-
ton. The Grand Jury, he holds, was one
de facto, and it's legality can be attacked
"only by motion or challenge of person
indicted upon some ground allowed by
statute" Judge Beatty holds. also, that
in the case before the court, the offense
not being committed in San Francisco,
the Superior Court of that city has not
jurisdiction; nevertheless, ''prohibitionr
is not the remedy, but appeal.
Justice De Haven agrees that the Su-
perior Court erred in appointing an elisor
without a showing that the Sheriff was
disqualified. But the jury was de facto a
Grand Jury, and the remedy is for one
indicted by it to present objections on
the trial, and then appeal if overruled.
He thinks the irregularity of the court
below did not affect its jurisdiction, and
that its judgment rendered upon indict-
ments would not be void, and that the
rule set up in the Southwell case by the
Supreme Court of California must pre-
vail.
Justice Sharpstein dissents from the
majority, and holds that the ruling of the
Supreme Court in The People VS.. South
well covers this case, and that the Grand
Jury was not wholly illegal body, be-
cause it was not shown that the Sheriff
was disqualified. In the Southwell case
the Coroner was appointed to make serv-
ice, and it was not shown that the Sheriff
was disqualified; but the court held that
act without the proper showing being
made, still the Grand Jury was not a
wholly Illegal body, and that the judg-
ment of court on an indictment found
by it would not be void for the irregular
ity complained of.
Thus there are six out of the seven JUS
tices of the Supreme Court holding the
action of the Superior Court to have been
error; two or three think the remedy o1
prohibition not the proper one; one JUS
tice thinks the irregularity not fatal to the
jurisdiction of the court or to any judg-
ment it might make under an Indictment
and one other Justice dissents on like
grounds.
This settles the law of the case, but it in
no wise vindicates any party charged by
the illegal Grand Jury with crime. It is
not defense of venality, and cannot be
contorted by newspaper cunning, or the
passions of the unthinking into any pos
sible shielding of wrong doing. tits, in
short, simply defense of vital princi-