The record-union., 1891-12-14
Acts of the San Francisco Grand
Jury Null and Void.
SO DECLARED BY THE STATE SU-
PREME COURT
Five Justices Render Opinions Against
Judge walIace's Manner of Select
ing the Jury-Two Dissenting Opin-
ions-FuIl Text of tie Opinions
Rendered by Justices Mcfarland.
Sharpstein and De Haven.
special to the REcoRp-uN1oN.

Court yesterday afternoon rendered de-
cision regarding the legality of the Grand
Jury selected by Judge Wallace. 1t de-
clares the body to be illegal.
The opinion is written by Justice Nc
Farland and is concurred in by Justices
Garoutte, Harrison and Paterson.
Chief Justice Beatty also declares the
Grand Jury an illegal body, but he does
not think that writ of prohibition is the
proper process.
Justices DeHaven and Sharpstein dis
sent from the prevailing opinion.
IN BANK.
Elwood Bruner Petitioner and Plaintiff, VS..
the Superior Court OF the City and County
of San Francisco and Hon. William L.
Wallace Judge thereof, Respondents and
Defendants. No. ID, ,S14.
This is an application for Il writ OF prohlb1-
ton to prohibit the Superior Court OF San
Francisco, Department Number Six, and the
Judge thereof from proceeding further against
petitioner upon two certain paper-wrltlngs
purporting TO be indictments. The main
ground OF the petition is that the body of men
who presented said writings had no legal eX-
lstence as n Grand Jury, and that. therefore,
The respondents have no jurisdiction or au-
thority 10 arraign or try petitioner upon the
same. Upon the record presented two prlncl-
pal questions arise. First, was said BODY a le-
gal Grand Jury? and, second, If 1T was not.
then is prohibition proper remedy?
The material facts in the case are und1s-
puted and are as follows: The respondent, the
presiding Judge, made an order that twenty
i've names be drawn in the usual way nom
the 'sGrand Jury boX' (Which contained the
names of 144 persons selected by the twelve
Judges of the Superior Court) for the purpose
of procuring a Grand Jury. Alter service by
the Sheriff on all of said persons who could
be found, eighteen OF them appeared. Eight
OF them were excused by the court Tor good
cause and the others were accepted. NO 1ur-
ther drawing from the Grand Jury box an
fol1f hoT
nameS) was made; but thereupon the court
made the following order: "And 1t now ap-
pearing TO the court that of the entire number
of persons drawn to serve as Grand Jurors
there are only the number of ten proper and
competent to SO serve and not excused, IL is
now here ordered that a sufficient number, 10
wit: the number of nine good and lawful men,
be forthwith summoned by an elisora appointed
by the court here for that purpose, to be and
appear before the court here on THURSDAY, Au-
gust 20, 1891, at IL o'clock meridian, to
complete the said Grand Jury, and that Henry
NJ. Scott be and is hereby appointed such
elisor; and all further proceedings in impanel-
ing a Grand Jury are continued until the
20th day of August, 1891, at IL o'clock me-
ridian."
Another order was also made formally ap
pointing said Scott elisor, who, after being
sworn as such, returned nine other persons as
Grand Jurors The whole of said nine per-
sons were accepted; and thus the requisite
number of nineteen Grand Jurors were pro-
cured and sworn. No reason was given why
the Jury was not completed by additional
craving from LlG NJrdnu jury DOA, nOT was
there any cause why, when the other method
OF getting jurors was adopted, the Sheriff was
not ordered TO summon them instead of an
elisor. No charge of partfality, interest or
disqualification of any kind was made against
the Sheriff by affidavit or in any other man.
ner, and the record shows that the Sheriff
was discarded and the elisor appointed
simply because the court chose to do So And
the contention of respondents counsel is that
the power of a Judge to appoint private
person to select q jury is unlimited and un-
nnalifipH hV provisions of law
alterations whatever, his will being supreme
IN the premises. No question, therefore, arises
here as to the Jurisdiction of court TO pass
upon the issue of disqualification of a Sheriff
in such a case, because there is no such issue
The provisions of statutory law upon the
questions here involved may be somewhat
briefly stated. The formation of grand and
trial juries is provided for in the Code OF Civil
Procedure, commencing with Section 204,
and the general provisions on the subject are
these: In January of each year the Superior
Court of the county must make an order des-
ignating the estimated number of grand
jurors that will be required Tor the business OF
the ensuing year and thereupon the Board of
Supervisors must select from the qualified
citizens of the county-taking them as nearly
as NAV be from the different wards and town.
ships in proportion to population-the num-
Der designated by the court. A certified list
of these names is given to the County Clerk,
who must write the names of the grand
Jurors on separate pieces of paper of uniform
appearance, and having folded them so as to
conceal the names, must deposit them In a
whenever, during the year, court orders a
Grand Jury it is provided that the jurors
shall be drawn by the clerk in the presence of
the court. He must shake the box so as to
mix the slips containing the names before
drawing and must observe other statutory
directions providing against the unfair draw
poses tSecs 241, 219.) In cities and counties
of more than 100 900 inhabitants. which in
cludes San Francisco, the Jurors are selected
in January, by the Judges of the superior
Court, instead OF by the Supervisors. Sec.
2O4) IL all other respects the law is the
same. Such is the general method provided
by statute for the formation of juries, and it
is as wise method as could well be devised
10 procure fair and Impartial jurors, and TO
prevent public officers from bringing together
certain persons on a jury in oroer to secure a
certain result, to annoy the innocent or pro-
1ect the guilty.
There is, however, another provision of the
code, intended evidently 1or cases of neglect
of duty or inadvertence and to prevent in
some instances great delay or expense, on
which the right OF the court 10 procure Il
Jury as il was procured in the case at bar is
based. The thought of the Legislature in en-
acting tho provision would seem 10 have been
directed more. particularly to trial than TO
grand Jurors; but If its language be wide
enough to grant the power here contended
for, then the power exists. But II the language
does not grant such power, then ii does not
exist for it is granted nowhere else. The said
provision is contained in Section 226 and is
as follows: - w Whenever jurors are not drawn
or summoned 10 attend any court ofrecord or
Jurors fail to appear, such court may order q
Sufficient number TO be forthwith drawn and
summoned to attend the court, or 1t may, by
IN order entered on its minutes, direct the
Sheriff or an elisor chosen by the court, forth
with to summon so may good and lawful men
of the county, or city and county, 10 serve as
iurors as may be required, and in either case
such Jurors must be summoned IN the manner
provided in the preceding section.n
II is auparent that the claim of power under
The saiCi Section 226 to do the thing com
planned OF in the case at bar should be closely
scrutinized and denied unless the power be
found to be clearly given; for, il it exist it is
most arbitrary and dangerous power-one
that can easily be used TO unj Justly destroy
character liberty or life. And In determining
whether or not there be such legal power we
must discard all consideration OF the worthi-
ness or unworthi3ess of the purpose sought to
be attained in any particular case. There
must be attributed 10 the learned Judge of the
If he have the power claimed then such power
must be conceded to every other person who
may at any time occupy similar judicial
position. Under such power court could
easily procure the indictment and, perhaps
the conviction of any person whom it deemed
10 be an offender, by simply appointing q per-
son favorable to its designs to select jurors
with q similar bias. In times of great public
ssxcitement-political or otherwise-a citizen
who had incurred censure in certain quarters
would have scarcely q remnant left of that
protection which is afforded by fair trial be-
fore an impartial jury: and to say that such
unlimited power can be safely lodged with al
the men who may happen to be Judges would
be to ignore human history and the principles
of human nature. It must be rememb bered
that unauthorized power may be used