The morning call., 1894-10-20
The Laws Governing City
Street Work.
THEY Go AS THEY PLEASE.
Conviction for Fraud Is Almost
Impossible.
District Attorney Barnes to the
Grand Jury Anent the Fell
Street Sewer.

For some time past the Grand Jury has
had under consideration the advisablliy
Of bringing indictments against the con-
tractors Of the FelI-street sewer The evil
dence of fraud in the construction Is all
there, but whether an Indictment would
hold or a conviction he secured under the
laws as they stand is what worries the
jury, and they asked District Attorney
Barnes to give them an opinion upon 1t
out of his knowledge and experience. He
did this yesterday, and the picture he
draws of ihe loose condition of the laws
directed at the control of street and other
public work would indicate that not only
a coach and four Eay be driven through
but that sewers NAV cave in upon them
without pinning down.
The opinion, properly addre ssed, reads
as follows:
In relation TO the question whether il is pru-
dent TO prefer criminal charges for improper
and imperfect wok on sewers in the public
streets, / beg leave 10 report: One Julius
Premier was the Inspector for the Superin-
tendent of Streets, of sewer work done under
private contract on Eureka street. He made
return that the work was done according TO
| contract and eciications. ana further swore
TO four days services as Inspector. The work
was miseraDly done aud should have rendered
all engaged in IL amenabie 10 punishment as a
matter of public policy. Premier, as Inspector,
was indicted for perjury. but the prosecution
had to e abandoned, as the oath taken applied
TO four days work, and not 10 the workman
ship of tie labor performed. A second indict-
| ment was found upon the charge OF presenting
false paper TO be used as evidence upon the
| inquiry of the Super intendent OF Streets into
| the manner in Which the WORK had been per
formed pending acceptance. The indlctme ut
was found under section 134 of ;he Penal Code,
which provides:
Every person guilty of preparing any false
or antedated book, paper, record instrument
in writing or other matter, or thing with iu-
tent TO produce il, or allow it TO be produced
for any fraudulent or deeeltful purpose as
genuine or true, upon any trial, proceeding or
inquiry whatever authorized by law. as guilty
OF d felony"
There is also In the same code, section 169,
which reads:
Every public officer authorized by law TO
make or give any certificate or other writing
who makes and delivers as true any sucn GER
tifcate writing containing statements which
he knows TO be false is guilty Of a misde-
meanOTs"
1t was Immediately contended that the indict-
ment showed misdemeaDor under the last
section instead of felony under the first. 1t
was also contended that the Inquiry in the for
mer section did not apply to the action of the
Street Superintendent but TO some inquiry
judicial In character. and demurrer was
in exposed to the Indictment, which was over
ruled. The trial went on. The original con-
tract 10 do the work was private in It's char
acter and numerous technicaities were at once
thrown into the case: VIII ther a proper copy
had been filed III the superintendent Office
Whether survey had been made and pre-
seDted as required by law, and did the Inspector
see IL? Whether specifications bad Oren fur
nished by which TO DO the work, as none were
attached to the contract, and the certificate
stated the work was done according TO the
specifications attached to the contract?
Whether it was necessary to have any permis-
sion from the Superintendent TO proceed under
a private contract?
Some of these matters were answered by
reference to the Vrooman act the law then In
force. But I'D several instances what was done
mad resulted from custom and habit established
and coming down from earlier days and arbi
| trary in character. 1t was not until after con-
siderable litigation rnat the general street law
was adjudged to apply TO the city ana county
/ The consolidation act and It's amendments had
! previously governed, and under these had
| sprung up numerous ordinances. These, iii
| turn had been modified. amended ana repealed
| and observed under later acts, often without
| regard TO whether there was any conflict with
the latter act or not. hese ordinances were not
| codfed so as TO be able 10 trace them and in
/ addition 10 these were the customs and habits
| unauthorized by anything but use; and ib
| this beautiful cOndi lou we found the laws re-
| lating 10 our city's streets to-day. The result
| of continuous legislation. State and municipal,
| under a contract OF nearly forty years age,
| amended from time TO time and finally sup.
| planted by general law of the state. with the
| ordinances indiscriminateiy scattered through
/ the history and customs and habits preserved
| only In the minds OF those filling the Superin-
lend nts office. Under these surroundings the
Premier case was tried. In his testimony he
| denied a knowledge of making a certificate.
saying be believed he was only swearing to the
| days OF service he had rendered and the
amount due.
Under this defense as made the court in
structed the jury that II he acI ed through negi-
! gence In making the certificate, and by atten-
lion 10 his act he would have had knowledge
of il, they should find him guilty. The Jury
| found the defendant guilty.
new trial was asked for on the ground that
| the theory OF the court was erroneous. as a
| specified intent was required to constitute the
| crime ana a constructive knowledge was not
sufficient. AS the Supreme Court had decide ed
! in the Brown vs.. Wee case. IA Cal 3O6 in
constituting the same section of the code, almost
| in terms that the construction contended for by
| lhe defense was correct, no course was open
| but to grant new trial. The poIni was made
| anew with considerable show of reason that the
! offense. il any, was misdemeanor under sec
| ton 167, aud therefore not IndicIa BILE as being
| strictly within the jurisdiction of the Police
Court. An arrest of judgment also was asked
| for on the ground that false PAPER meant a
| forged paper. and not one which contained
| false substance. The court held TO his view OF
the case. which had been fully argued on both
sides. aud thus disposed of the case az being
| without the terms of the section under which il
had been prosecuted.