The morning call., 1891-12-24

provisions were thus referred to; they were
omitted and omitted ex industrial. And why
for what reason-was the Political Code aud all
and singular its provisions thus omitted and re-
1ected In the legislative plan for the impaneng
OF grand juries? Because the legislative pur-
pose easy 10 be seen, was that none OF The pro-
visions of the Political Code should apply to the
impanelinR OF q and juries. Ii this be not the
correct answer can any one account why il was
that when The Legislature undertook to specify
and enumerate what code or codes other than
the Gods OF Civil Procedure should be looked to
In impaneing grand juries it mentioned the
Penal Code and omitted to mention the Politi zeal
Code? IL mentioned only the Penal Code, and 1t
did not adopt even the whole OF that. The adop-
ton oil The provisions of the Penal Code was
cautiously restricted; 1t was carefully confined
to specific portions OF that code-to the port ions
In which are TO be found certain independent
and pertinent provisions concerning the i'm.
paneling OF grand jurors, and which are set forth
chapter OF the fourth lille of the second part,
ana s are there very c9nspcuously entitled.
"FOrmation of the Grand jury"
In the Code of Civil Procedure no such refer.
ence as this was even q tempted, nor indeed
could have been intsliigibly made to the Polii-
cal Code, because the Political Code Contains
IN itself nothing whatever that subject (Do
such subject as the impaneling OF grand jurors
was to be found there), and besides The Political
Code had Itself expressly discarded the subject
OF impaneling grand juries, for II had declared
(Secion A. that IL was TO be considered as law.
NOT generally, but only upon the subjects TO
which 1t related; no such subjects as the I'm
lanelment OF grand Jufies being found In the Pc.
litical Code, of course no reference 10 II upon
that subject could be inteliigibly made, and none
was attempted by the Legislature; IL II had been
II would hav but introduced into the otherwise
consistent plan OF our statutory law concerning
grand lurieS The hopeless confusion and irrecol-
cilable Inconsistency which 1t was left to the
ruling Of the Supreme Court in the Bruner case
TO bring about.
Now, Notwithstanding 1t is expressly pro.
vid, by The Political Code that 1t shall not be
construed as affecting the plan OF impaneiing
Grand Juiies, and The equally expressHrovlsion
of The Code of Civil Procedure that 1t alone pre-
scflbes tile law on that subject, the decision OF
the supreme Court. in open disregard OF both
these provisions, has declared that there are
certain expressions, clauses and provisions to
be found In The Political Code which do affect
and DO disturb the otherwise plain provisions OF
the statute touching the impanelnent OF Grand
Jurors; aud that Court THINKS that for this pur.
pose the Political Code and tile Code OF Civil
Procedure are TO be read together upon a sub
lect mentioned III the one and not mentioned in
lie other.
THE FIRST ERROR OF THE BRUNER DECISION
If this construction is to prevail generally and
The codes are TO be construed after that manner
they must henceforth be read as though the
provisions in each qualified, restrained aud, as
would In some instance be the case, altogether
defeated the provision of each and all the other
codes; and yet. in order to avoid the confusion
and uncertainty which such construction would
involve, have already bad occasion 10 observe
the iac that 10 each OF these codes-that Is to
say. In The Code Of Civil Procedure and IN the
foiitlcal Cone-it Is expressly provided lSeclion
~ that each code Is 10 be construed by Itself
upon any subject 10 which II relates and is to be
taken as establishing the law OF tile state upon
the particular subject TO which IL does relate
TO hold oIherwisr, as the Supreme Court has
done. Is therefore, plainly TO disregard rule
OF construction thus prescribed by the statute
iseli; 1t Is Ia this that the first and fundamental
error OF the Bruner decision Is TO be seen; the
provisions OF the Code OF Civil Procedure Though
clearly purportug 10 deal upon their face TO deal
with the tmpaneling Of grand juIles, aud as a
distinct subject, are therefore TO be understood
as changed. altered, modified by the other and
independent provisions OF The Political Code en-
tlfely other QlHptent suDtecf,- and
none of which upon their face purport TO deal
with The impanellug OF grand jurie> at all.
These ma tiers. gentlemen. aud lie conclusion
10 which they point, are SO plain in themselves
that the mere statement to person Of even the
most ordinary lntellig nee Is supposed TO be
enough.
This unauthorized-nay, plainly forbidden
mingllDg OF these codes was necessary in order
TO maintain that AN affidavit showing The dis
qualification of the Sheriff should have been first
nled here before the ellsor could be appointed,
Tor unless the Political Code could be Injected
into the body OF the Code OF Civil Procedure the
suppus necessity of such an afIldavlt could not
be even surmised, the Political Code being the
only one III which the affidavit is mentioned.
Just AT this point, and In support OF The gen.
eral proposition that the appointment OF Mr..
Scott as an eisor was unauthorized, the ma.
jority opinion OF the Supreme Court embarks
upon an elaborate and erudite consideration Of
the meaning of The VOID elisor " AT common
law. The dictionaries OF the Law are accord
ingly exhausted upon the definition Black
stone and the hornb books OF Jurisprudence are
brought Into requisition to prove that nj the
common law eltsor Is officer appointed
only in case the Sheriff and the Coroner be dis
qualified; but all THIS might well have been
spared, since no one at least so far MS as Snuwu
TO me- has ey~r disputed this asserted rule of the
common law in that respect. Their Honors
would indeed seem 10 have overlooked the i'm
POI taut consideration that The precise question
In hand is one of practice merey-of the mere
mode oil making The fact OF disqualification APP
pear TO The Court. Is the particular mode of
proof known as an affidavit Indispensable? They
have cited nothing 10 show that an affidavit es-
tabli,hlng The disqualification was INDISPENSABLE
even unGer The practice at common law. and II
they had shown II 10 be so IL would have been Of
not The slightest impoitancr here, Slice our
practice IS coDIesseuly not that OF The common
law, but only such as Is prescribed by our own
codes, which supersede and supplant the whole
BODY OF the common law upon questions of mere
practice, civil anu criminal as well.
THE QUESTION OF CHALLENGE.
Admitting, Then. and 10 It's most ample extent,
the propos tion that before an elisoT could prop
eIly be appointed the Sheriff (and the Coroner
too since the court Will have IL SOY must have
been challenged as incompetent, II stu remains
TO inquire if II be indIs pensabie that such chaI-
lenge must be made by affidavit only-that all
other, even The most satisfactory methods OF
proof OF the fact OF disqualification, must lie re-
jected-absoluteiy disregarded. For myself, |
have as yeI seen no such law, common or statu-
tory.
But ali OF this discussion is merely fanciful;
II C nnoI affect the question OF the validity OF
MI. Scouts appointment, because before he was
appointed a. an eli>or both the Sheriff aud Coro-
Der had been III fact chdlleug u here as ing
Observation-Disclosures summon the grand
jurors; they had been challenged by the court
Itself, and this challenge had been made In open
court at the time The elisor was appoint d. and
before lie was appointed. and upon the certain
and judicial nowledCe OF this court that these
officers were disqualified 10 summon the Grand
Jury.
The fact of their disqualification was judi
cially known to me here, aud therefore IL was
must rave been-1udicialy known TO the SIl.
pTeme CourI also; that tribunal as well his
knew aud wen knew that neither The Sheriff nor
the Coroner WAS indifferent in This business. As
fnf my NAT nr m AK m iair a
tcat0n was not only ludicialiy known 10 me
which was enough-but II WAS also IA mat er
about Which The law was especially commended
10 ME 10 inform you accordingly III my Charge
delivered 10 you here when you were impaneied
as Grand jury.
To aver that either the Supreme Court or this
court was Ignorant of this disqualification of
these officers is but 10 say that thai court or this
court was ignorant OF the public statutes OF tie
State in which they both sit. for the Penal Code
Section 92S. Is as follows:
1T shall be the duty of the Grand Jury to
books, records and accounts OF all The officers of
the county and report thereon. Z.
| The Judge. upon the impaneliug OF such Graud
Jury, shall charge II specially as to their duties
| under THIS section"
AFFIDAvITs UNNECESSARY.
In view of This public sta ute OF what possible
| utility would have been an affidavit OF some per-
| son TO The same effect interposed here when such
| affidavit could in any event have only In
| formed me OF a fact which, as observed before
| / not only already well ADew, but was also bound
| TO communicate TO you-the fact that both the
| Sheriff and the Coroner were persons whose
Offices and official conduct 1t was your sworn
! duty to investigate with diligence, and more
! over with strict Iinpartiality.
| VIII any on claim IL TO be law, either statu.
| tory common, ar that IL Is common sense or
even decency tha either one of these officers TO
| be thus Investigated by you should himself Sc
lect you. or select the persons by whom this pre-.
scribed investigation OF bis own official conduct
| was 10 be conducted? Certainly not.
This disqualification OF the Sheriff was ad-
| verled 10 by me here In open court when MIR
| nsAIru tAttnr cd a al md
| signed by me The reason why the Sheriff was
| not directed to summon the grand jurors. The
| fact that lie was disqualified 10 ac, because he
| was an officer to be investigated by the Grand
| Jury, was then pointed out and expressly stated
| as the reason why the appointment of an elisor
| had become necessary.
The Court then already knew-judlcIally
| knew-the facGtnat the Sheriff ana the Coroner
| were disqualified; and IT Is because OF such
| knowledge thai an affidavit OF any on else star.
| ing that fact, had such been offered. would have
en- super fiuous, vain. and therefore unneces-
| sary.
| AXIOMS OF LAW.
| To saw This Dut reDeat n known rnIa ~;