Los Angeles herald. [volume] (Los Angeles [Calif.]) 1890-1893, 1891-12-13
The San Francisco Grand
Jury Knocked Out.
Justice Mcfarland Delivers an
Elaborate Opinion.
Garroute, Harrison and Patterson
Concur in the Decision.
Chief Justice Beatty Also Thinks the
Grand Jury Had No Legal Power.
De Haven and Sharp
stein Dissent.
Associated Press DISPATCHES.

bWO, UcClQtQ IOOdJ SiaO VIZ P'SSNHS
grand jury of the city and county of
San Francisco is an illegal body.
The question came before the supreme
court on application of ex-Assembly-
man Bruner for writ of prohibition to
restrain Superior Judge Wallace from
proceeding against him under indict-
ments found by the grand jury, charg-
ing Bruner with malfeasance in office.
Chief Justice Beatty concurred in the
opinion that the grand jury had no
legal power, but thought writ of pro-
hibition not proper way to bring the
matter before the supreme court.
The decision, which is very volumin-
Gus, was written by Justice Mcfarland,
and was also concurred in by Justices
Garroute, Harrison and Patterson !;
Justices DeHaven and Sharpstein dis
scented.
The grand jury which is by this decis-
ion declared an illegal body, was i'm
paneled by Presiding Judge Wallace
of the superior court. August Goth.
Nine of the nineteen members of the
grand Jury, including the foreman, Bar
clay Henler, were selected by an elisor,
Henry T. Scott. appointed by Judge
Wallace. and the question OF the legality
of the jury arises from a discussion of
the power OF the court to appoint such
elisor, without first having exhausted
the regular venire OF jurors, or having
afforded the sheriff an opportunity to
secure the needed jurors.
The proceedings of the grand jury
have been OF great Importance, it
having had under investiga-
ton scandals affecting the late
legislature, and the conduct Of munich
pal affairs under the present and prior
administration. Considerable testimony
was taken in connection with the Taylor
case, in which combination OF mem
bers OF the last state legislature were
charged with receiving and dispensing
money to effect the passage of a number
of bills. Steven I. Gage and Richard
Chute were summoned at different times
by the jury as witnesses, but refused to
testify, on the ground that the jury was
not a legal body. They were cited to
appear before Judge Wallace. and Chute
was ordered fined and imprisoned
for contempt. Superior Judge Muir
ply, however, granted Chute a
writ of habeas corpus, thus releasing
him permanently, but when the SUI
preme court, in a prior decision ruled
that witnesses bave no power to decline
to testify on the grounds of illegality of
the grand jury, Chute and Gage APP
peared and testified.
Last month the grand jury indicted
Christopher Buckley, a local politician
who is now in Canada; Samuel Rainey.
superintendent of engines in the san
Francisco fire department, and closely
allied with Buckley, and also found an
indictment against ex-Assemblyman
Ellwood Bruner, OF Sacramento, for Of
Tense lying, it was charged, part
ly in this county. Brnner Immediately
applied TO the supreme court for writ
of prohibition to restrain Judge Wallace
from taking further proceedings, claim
ing the court exceeded its powers in APP
pointing an elisor.
In granting the writ today Justice
Mcfarland, who delivered the opinion
of the supreme court, holds that no
disqualification OF any kind was made
against the sheriff by affidavit or other
wise, and that the sheriff WAC discarded
and an eisor appointed, simply because
the court chose to do SO. 1t was held
that the court was without power to APP
point an elsor under the circumstances,
and had exceeded its jurisdiction.
Justice Mcfarland, in ordering writ
to issue, restraining respondents from
further proceedings, says that upon the
record presented, two principal ques-
tons arise: First, was said body a
legal grand jury? second, if it was not,
then is prohibit on remedy?
IT Al [ "a hon Il
ment of the grand jury by Judge Wal
lace, and says no reason was given by
Judge Wallace why the jury should not
have been completed by an additional
drawing OF names from the jury box, in
addition to he nine so selected, nor
was any cause shown why the sheriff |
should not he ordered to summon them
instead Of AN eiisor. No question there
fore arises as to the jurisdiction OF the |
court to pass upon the issue OF the dis
qualification of the sheriff, because |
there is no such issue.
The justice quotes the provisions OF |
the code and constitution for the selec-
ton of juries, and Gays the asserted |
power Of the lower court in the case at |
the bar comes, if at all, from the words |
in section 226 OF the Code of Civil Pre-
VI tiloOIi
the term "elisor," said it would seem
clear that the section quoted uses the
word as designating a person to be APP
pointed in event the sheriff has been
challenged as incompetent.
Justice Mcfarland further contends
hat there exists statutory definition
and description Of the word ''elisor," in
ul accord with the meaning given it
by the general law.
Alter stating that a writ OF quo war
-anto does not lie against the mere tenn
oorary employment of q jury, the JUS
ice goes on to say that the appoint
nent of Scott as eiisor was all act en-
ireIy independent of. and distinct from
he orderof drawing jurors from the box,
md ii there was any power to make 1t
UGH, it must be found in the law and
lot in any previous action OF the court.
He quotes number OF authorities
nd adds: "Our conclusion is that the
curt below had no authority in law to
ppont said Scott to select grand jurors,
ecause there was no case in which the
over OF the appointment OF an ellsor
pplied."
On the second point, as to whether
rohibition is the proper remedy, the
)urt SAYS: Prohibition lies in all cases
here there has been proceeding with
1T, or in excess of jurisdiction,
nd when there is not plain,
,eedy, adequate remedy in the ordinary
,urse of law. If the views heretofore s
avr, Innu NJ a