The record-union., 1893-06-07
The LivermOre Case Being Heard On
Its Merits.
Judge Grant Refuses to Indefinitely
Continue 1.-THE Case to be
Resumed To-day.

tue sO-c2lleO constitutional dIneudlhenI
by the last Legislature declaring San Jose
70 be the seat of government.
l.. T. Hatfield and Grove L. Johnson
appeared as counsel for the plaintiff; San
Jose's interests were looked after by d.
NJ. Delmas and II. V. Morehouse, while
the Secretary of State was accompanied
by Attorney-General Hart, Deputy At
torney-General Layson and j. II. Nc
Kune.
At the request of plaintiffs counsel the
Court Stenographer was called i'll to make
a full record of all the proceedings.
All the parties being in readiness, Judge
McKune moved that the case before the
court be continued indefinitely, as the
case of Rideout VS.. the Secretary of State,
involving the same issue, is already be-
fore the Supreme Court awaiting the con-
sideration of that body. In support OF
his motion he asked to be allowed to offer
In evidence the papers in the Rideout
case, showing a judgment against the
plaintiff and the subsequent appeal.
The Introduction of this evidence was
opposed by attorneys Hatfield and John
son, who argued that it in no way con-
cerned the case then before the court
For the purpose of Mckune's motion
only, Judge Grant admitted the docu-
mentary evidence.
Judge McKune then argued at consid-
cradle length in favor of his motion TO in
definitely postpone the hearing of the
LivermOre case, holding that a multi
phcity of suits to attain the same object
should not be allowed to interfere with
case that had been properly presented
and was in better shape and condition.
For that reason the proceedings in the
Liveruore case should be stayed. He
quoted various authorities in support of
his position.
Counsel severely criticised the COM
plant in the LiVermore case and con-
tended that it contained matters that
should not be brought before the court
ON the other hand, the Rideout case had
been properly brought, and it contained,
he argued, all the real points at issue
more cOncisely stated than in the other.
During his remarks Judge Mckune in
dulged in some sharp criticisms OF Liv-
ermore's counsel.
In reply Mr.. Hatfield said the Liver
more case was filed a month earlier than
the RideOut case, and was, therefore, en-
titled TO precedence. The authorities
quoted by Judge Mckune had no appli-
cation to the situation. The Livermore
case was an application tor an injunction,
which the RideOut case was not. Judge
Mckune, he said, had been taking up the
time of the court arguing abstract prcpo-
sitions of law which bore no relevancy to
the facts at issue.
Grove l.. Johnson inquired of Messrs.
Delmas and Morehouse if they acquiesced
in the motion of Judge McKune for a
continuance. Mr.. Delmas replied that
they were present by permission of the
ACKNOWLEDGEMENT, and would have to re-
fer the inquiry to that gentleman They
were here representing the people Of San
Jose, and came expecting the case to be
heard. However, they were willing to
abide by the Attorney-General's wishes
Replying to General Hart, Mr.. More
house said that personally he desired the
hearing to go on.
The Attorney General then had an inn
ing. He said that, so far as the facts of
the matter are concerned, he agreed with
Judge Mchune. The only issue is
whether or not the Constitutional Con-
NentiOn of 1879 Withdrew from the people.
in express terms, the power to amend the
sections ofthe Constitution relative to the
state Capital, or whether it was intended
that the Capital could only be removed
by law. All other pretended allegations
In the Livermore complaint are, there
lore, eXtraneOus matter. Ittollows thatthe
IlVermore suit should not be maintained,
lie would move counter motion, dis
missing the proceedings on the ground
that the questions involved had already
been disposed OF by this court ami were
now pending i'll the Supreme Court. 1.-THE
IlvermOre case contains an issue not in
the RldeOut matter, Judge Grant should
Try that issue now. Mr.. Hart further
said, taking into consideration the record
of the RideOut case, that the Mvermore
case did not now constitute a cause of
action.
Proceeding. General Hart said that.
pending the determination of the Rideout
case, which he did not believe could be
acted upon before next March, he was
opposed to the Secretary of State being
prevented from doing his duty, under the
law, by an injunction such as was asked
for. The RldeOut case, he said, would
not enjoin the Secretary of State from do
ing his duty, unless the Supreme Court
should see nit to act.
The court announced that he would be
guided by the judgment and orders of
Judge Johnson in the Rideout case and
therefore he would only consider the
issues in the Livermore complaint not
contained in the Hideout complaint.
At the afternoon session of the court
Grove l.. Johnson replied at length to
Judge Mckune's argument and personal
illusions made during his motion tor
continuance, and scored the latter Sc
Verely. In his argument he cOntended
that issues were involved in the Liver
more complaint that did not appear in
that of RideOut. The attorneys in the
latter case, he said, had agreed 10 a state
lnent of facts which 1t Is contended III the
Livermore complaint are not facts at all.
Mr. Johnson proceeded at some length to
compare the two complaints, showing
wherein they differed.
Judge Grant said at the conclusion of
Mr.. Johnson's argument that he would
have to deny the motion to dismiss In
stating before recess the course he would
pursue, he was not then aware of the
stipulation as TO facts in I'll Rideout case.
The court added that he had no hesitanev
IN expressing 1t as his opinion that the
Judgment in the Rideout case was not
binding in the Livermore case, Both
cases place the court in somewhat
anomalous position, as there appears to
be TWO different statements of facts in
vOlved in the same question.
Mr.. Hatfield called attention to the
fact that he had filed petition in the Su-
preme Court that the Rideout case be not
heard until after the Livermore case had
been determined. The Supreme Court
could not consider the records of both
cases at the same time in arriving at its
decision.
After some further arguments the
court denied the motion to indefinitely
continue the hearing of the Livermore
case, and Secretary of State Waite was
called to testify:
He said he had in his possession the
Journals of the 18th. 18th and 18th OF
March. the original resolution presented
in the Senate, the standing rules of the
Senate and Assembly, and the original
proposed amendments.
Mr. Hatfield offered in evidence the
Senate Journal OF the llth of March for
the purpose of showing that the Senate,
at 10 P NJ, excused Senator Ostrom; that,
after that the resolution of Senator Sey-
mour for the removal of the Capitol was
introduced and passed, the proposed
amendment was introduced and passed,
and an adjournment taken at 1915 P. NJ,
all this important action being taken