The morning call., 1891-12-24

ing by which rule such judicial knowledge
had always extended to and embraced all facts
public and notorious In character as we'll as all
matters of public law including the tenor OF the
existing. statutes of the State In which the
court SITS.
1t must, therefore, be clear to all that In point
of fact before tie elisor was appointed here the
Sheriff and Coroner had been challenged as In:
cOmpetent precisely within the definition found
in Bouvier's law dictionary especially cited by
the Supreme Court-challenged by the court
ard the challenge of the court was not based
upon matter as to the truth OF which there could,
In the nature OF things, be any doubt or uncer-
tainty-it did not rest upon fugitive affidavit
volunteered here by an interloper. and which
might, after all, turn out to be false, but was
based upon the surer and far more reliable
knowledge of the court "itsen"-a knowledge
derived TO 1t from a public law which IL was
bound TO know. and by which the disqualified
ton OF these officers had been plainly and unms.
takaby established.
Surely these conditions must satisfy the re.
quirements OF all law, those OF the common law
as we'll as those OF the Codo of Civil Procedure
and the Penal Code, and all other systems OF law
which recognize the judicial knowledge OF the
Court as proper ground upon which the Court
is to proceed In the performance of Its duties.
Does Tie Supreme Court mean to maintain
that Superior Court, sitting in the performance
of the high duty to impanel a Grand Jury TO in.
permit disqualified Sheriff. Sheriff known 10
the Court 10 be disaualfed-and by reason OF
his official position unfit to summon grand
Jurors, to nevertheless proceed and summon
them, merely because no one volunteered to
come forward and by affidavit state to The Court
which the Court already had perfect knowledge
and by which IL was already bound to be gov
eTned?
AN UNwARRANTABLE ASSUMPTION.
1t can hardly be supposed that the Supreme
Court would admit IN terms that 1t means SO to
rule. ana yet the decision In the Bruner case as
sIIInes that proposition OF law and makes II It's
chief support; without this assumption the
whole fabric OF the deliberately constructed ar
gument OF Mr. Justice Mcfarland falls TO the
ground
win this leave this branch of the subject.
protesting that III all the proceedings taken here
by which this Grand jury was impaIeled Begin
Ming with he order directing the Grand jury TO
be drawn. ana concluding with the moment OF
time at which the Grand jury impaneled with
Drew from the presence OF the court to com.
mence the performance OF their dulles, every
provision OF tue law In this State had been care
fully examined with unspaflng research and The
most anxious desire upon my part that nothing
should be done or omitted In this business That
was not seen 10 have the warrant OF express law
in its support.
Second-It has been thus shown, / trust, tn at
the decision OF the Supreme Court by which an
affidavit is rendered Indispensable tindsn war
rant In the common law. nor in the Code Of
Civil Procedure, where the subject of impanel.
ing grand juries is especially dealt with, nor In
the Penal Code, specific portions of which have
been adopted by the Code Of Civil Procedure for
AN INHARMoNIoUs MARRIAGE.
In order, however, TO 0btrude the affidavit
proposition into the case 1t became necessary
that the Supreme Court should marry the Politl-
cal Code 10 tie Code OF Civil Procedure, for IL Is
in The Political Code only that the affidavit Is
mentioned, and unless these two codes can be
thus united IL could not be even pretended that
an affidavit had any possible connection with
impaneipg Grand Jury.
Que OF the difficulties of this proposed union OF
these codes Is that each one OF The codes them
selves has deliberately rejected the other for
such purpose. To say this Is only to again
point TO what has already been said: 1t Is to adj
vert 10 the fourth section OF each one of these
codes, In which section the demaTkation OF the
boundary line between thrm, and over which
neither one is 10 be considered as having gone,
is nj a saa n has OdAs oh
served before confines itself by direct expires
sion TO the subject TO which 1t relates" and In
the whole extent OF The Political Code no subject
such as that OF impaneling grand juries Is even
In The most distant manner alludrd 10. AT least
1 have carefully. and with the aid OF others
whose absolute familiarity with all the codes OF
this State IS known, examined the Political Code
throughout, and no such aliusion has been found
there
1t is to be observed that the Political Code
undertakes to define the duties OF county officers
Treasures, Clerks, Auditors, Tax Collectors.
Recorders, Assessors and the like-and among
them. OF course. the dulles OF the Sheriff as
being county officer, but this proves nothing;
for when the Political Code refers TO the "Sher.
if' as subject OF legislation il by no means re-
fers TO "ihe impaneiing OF grand juries" as a
subject OF legislation There would be the
same warrant of law 10 make an extract from
the provisions vi the Political Code concerning
The duties OF recorder or a surveyor and seek
10 apply It to the subject matter OF impaneling
grand 1uries as there is to make II from the pro-
vision concesnlng the once OF Sheriff aud so APP
ply Il.
DISTINCTION CLEARLY DEFINED.
IL Is the section Al 80 OF the Political Code
which Is especially rell upon. Ii Is TOO long to
copy II here. IL begins by providing h ow process
aud orders In AN action or proceeding may be ex-
eculed In the first instance. and subsequently
how they may be executed in case OF disqualiti-
cation OF both lie Sheriff and The Coroner, where
such disqualification appears by affldayit 10 the
satisfaction OF The Court; but the impanelng OF
a grand jury is not an action" neither Is IL a
proceeding" In civil suit, ana moreover, The
section oil le Political Code under consideration
in each and every one OF its provisions coItem-
plates a contention In court of justice, and one
in which one or the other Of The parties Is unwil-
ling thai the Sheriff Coroner. by reason OF bias
or prejudice against him, should execute the
proc such suit. II either party to such suit
be so dissatisfied, then IL Is made his business TO
make IL appear by affidavit 10 the satisfaction OF
the Court That his objection to The officer is we'll
founded aud thereupon tile Court is 10 appoint
an eltSor.
All this is. upon Its face and in every line of
II. utterly foreign 10 aud aside from those pro-
ceedngs in courts OF criminal Jurisdiction by
which grand 1uries are are To lie impaneled II
cannot be supposed that IL was the intention of
those who framed the Code OF Civil Procedure
and In that code provided plan for the mpan.
elment OF grand lufies, perfect In ITSELF and to
which nothing could well be added, mad a pur-
eral expression in The Political Code and
in that portion of II the subject matteriof which
IS expressly declared in It's caption tSec. 4l75)
SHERIFF" 10 disturb and defeat The plan OF I'M
paueling grand jures already established in
the Code of civil Procedure; and especially such
supposilloH Cannot be INDUCED In view of the fact
that In constructing the Political Code they de-
clred In effect that II should not relate to the
subject OF impaueliDg grand iuries.
IMMATERIAL MISTAKES.
Third-BuI let II be supposed for The pur-
pose of Tie argument here that all that
has been now said in reference TO The
law applicable here is a profound mis-
take, aud that this was not a ease Ia The
language OF the Supreme Court TO (which the
power Of appointing an eisor applied; what
then? Does II follow that writ OF prohibition
should issue by which the entire proceedings
here are arrested, and the Court and the Grand
Jury forbidden to proceed with the investigation
OF crims alleged TO have been committed? By
no means. These mistahes or misprisions even
If made are but Irregularities; they co not affect
the jurisdiction oil The court, the court Itself Is
cour' Of general criminal iurisdiciou; IL has the
authority TO impanei Grand jury. and 1t did
impanei one; being court OF general criminal
jurisdiction. all the inteudments OF The law must
30 in support of its jurisdiction.
For illustration one of the indictments against
Bruner charged him With the commission OF per.
jury here In the city aud county OF San Fran
cisco. That Is felony, and a Grand Jury i'm.
paneled and sworn In a court OF general criminal
Jurisdiction and OF unQuestionable Jurisdiction
over such felony committed presented their in-
dicnent against him. Thereupon he applied 10
the supreme Court that all further proceedings
out the trial the law had provided for
in such a case. His petition for the writ
curing In the impeachment Of the Grand Jury.
but which. II they had in TACT occurred
could not IN the nature Of things amount to
more than the irregular exercise OF the jurisdlc-
tion of this court-in no sense TO usurpation OF
jurisdiction not conferred upon this court by
law That such matters cannot be jurisdic-
tioual In their consequences is plain 10 every
lawyer, by remembering that II Biuner had
been tried and had been convicted and had taken
an appeal TO the Supreme Court, The Judgment
against him would have been affirmed by that
court, II no other supposed error was shown ex-
cept such error as Is put forth in his petition to
The Supreme Court for writ OF prohibition.
That proposition of law was settled In the
Soutbwell case-most quoted and appar emily
least understood.
STRONG CASE.
In the S0uthweil case IL appeared In the record
Oh appeal that lie had been indicted by Grand
Jury, Tie nameS oil which though formally drawn
out Of the box had never been placed In the box
according TO law. BY statute of that day-the
Statute OF 1S63-it was made tile duty of the
Board Of Supervisors 10 select and prepare he
Grand Jury list; the board had failed to do this !;
1t had failed TO make up any list-tne whole Of
the duties cast by law upon the Board OF Super
ylsors would appear TO have been done by the
clerk-an unauthorized person who assumed TO
himself the functions OF the board that res pect;
the trial court found that all these allegations
were true, and that the facts were as alleged;
Cstn,