The record-union., 1891-12-28
JUDGE WALLACE, THE SUPREME
COURT AND THE WRIT OF
PROHIBITION.


PROHIBITION.
The RECORD UNION was confident at
the outset that the action of the Superior
Court of San Francisco, presided over by
Judge Wallace, in the matter of the i'm
parchment of a Grand Jury was Illegal.
On the rendition of the decision of the
Supreme Court this journal at length
reviewed the opinion and found it to adj
dress the reason and to agree with our
conception of the law. The more we
have studied the case since the more pos
tive has become the conviction that the
Supreme Court is sound in its position,
and recently we took occasion to again
treat it and point out its strength.
Pending the hearing of the case in its
various phases the RECORD UNION, in
pursuance of what it deems the only true
and wise policy, one that ought to be
adopted, and, with rare exceptions, adj
hered to by the press, refrained from dis
cussing the issue raised. It deplored the
fever of passion, bias and prejudice man
lfest in the sensational press, and that
was calculated to influence the people
where cool consideration of vital princi-
pies of the law were involved, lying at
the very cornerstone Of the superstruct-
ure of free government.
All such infiammatory debates as have
been INDUCED in are harmful; all at
tempts to warp construction of laws to
suit preconceived views and meet espe-
c1al ends menace not only the liberties Of
the people, but tend TO defeat the very
ends of justice they are supposed to seek.
Judge Wallace has now replied to the
Supreme Court and to that reply we
address consideration. We pass over
the extraordinary and humiliating
spectacle and alarming novelty of
an inferior court, defensively of itself, at
tempting to reverse by review the judg-
ment Of the tribunal constituted by the
organic law as the court of final resort and
Interpretation, and come to dispassion-
ate and unprejudiced consideration of the
law In the case, since it is essential that
laymen shall understand the principles
involved. Their comprehension is not
difficult, and we venture the prophecy
that the calm reason and final Judgment
will support the appellate court. The
people, despite all attempts to infame
them and to bring the laws into disre-
pute and make them mere conveniences,
have still regard for them, and are, let
az for the sake of freedom and free gov
eminent hope, deeply sensible of the
fact that the safety of their lives, liberty
and possessions depend upon their main
tenance and execution as interpreted by
the appellate tribunal of the State.
All the courts and all the lawyers in
the country are agreed, that Judge Wal
lace erred in appointing an elisor to select
and summon jurors, without making the
essential record of the disqualification of
the Sheriff and the Coroner. AS to that
we have not heard single dissentient
saving and excepting Judge Wallace,
who travels outside of the record that
went to the Supreme Court, in an attempt
to justify his action; that, it is submitted,
is begging, weak and unworthy a Judge of
undoubted legal learning and long ex-
perience. In fact, we believe that Judge
Wallace himself is convinced that he
was in error, else he had not attempted so
weak an excuse.
Judge Wallace claims that he stated in
court, on making the order for an elisor
that he found the Sheriff disqualified;
that he took judicial notice of what he
claims to be the statutory disqualification
ofthat officer, because the statute makes it
the duty of the Grand Jury to inquire into
the administration of all public officers,
and of some must make special examina-
ton. This appears to be a wholly new
idea, and warrants the suggestion that it
is an afterthought and vain grasping in
excuse for an error that cannot be de-
Tended.
No such construction was ever before
put upon the law; from time immemorial
the Sheritfs' offices have been investigated
by Grand Juries that Sheriffs have served
with summons, and clerks, courts and
District Attorneys have been put under
inquisition by Grand Juries in the forma-
ton of which they have taken part.
Lord Coke, more than $50 years ago, de-
fined elisors to be those appointed to do
the duty of the Sheriff when the latter
was challenged for and charged with
disqualification by reason of bias,
alleged crime, etc. But at no time
has it ever been suggested, until adj
vanced by Judge Wallace, that the ex-
porting and examining into the affairs of
the county, as administered by its several
officers, disqualified the officers in their
relation to the Grand Jury.
Judge Wallace has himself held-when
in the upper atmosphere of judicial calm
that such suggestion, fever advanced,
would be stupidity absurd. In the South
well case, when he was Chief Justice, he
fled an opinion. The court below had ac-
cepted q portion of the jury as summoned
by the Sheriff. 1t then appointed the
Coroner to summon talesmen from the
body of the county to complete the Jury,
because the court proposed to submit to
the jury when formed certain alleged
malfeasance and negligence ofthe Sheriff,
thus putting into the record what it
deemed the disqualification of the Sheriff
But Judge Wallace there held that the
disqualification had not been established
because sit did not appear that any crimi-
nal charge had been pending against the
Sheriff" More than that, he added, even
If such a charge had been pending, it was
error to substitute the Coroner, because
it was the right of all others accused and
to be accused to have the Sheriff summon
the jurors, he being the instituted officer
for that purpose. That as to the charges
against the Sheriff, a special Grand Jury
could be called. So emphatic was Judge
Wallace that he thrice repeated this in
three distinct forms in his opinion, and
so lucidly that none can misapprehend
the language.
In that case the appellate court held the
appointment of the Coroner to be illegal,
but it was on appeal from denial of a mo-
ton that the court held was in legal eff