The herald., 1895-09-27
Mr.. DONNELL IS SUSTAINED
The District Attorney Upheld by
the Supreme Court
DECISION IN PARALLEL CASE
II Is Brought Under Section 772 of the
Penal Code
A Class Of Cases in Which There Is No
DECISION IN PARALLEL CASE
A Class Of Cases in Which There Is N o
Appesl-The Belmont Hall 1atter.
General Court News

District Attorney Donnell was IN good
humer yesterday afternoon and with
good reason. for he is apparently we'll
out of the little tangle in which he was
put by his refusal to issue complaint
aAainst the Times Mirror company for
criminal libel in the Belmont Hall case.
The District attorney, after examining
into the matter refused to issue com.
plant, saying that III his judgment
case could not be made out. The Bel
mont Hall people then commenced pro-
ceedings under section 772 of the penal
code to GUST Donnell from Office for refus-
ing to do his duty. The case was tried
before Judge Van Dyke, who decided
that it was in the discretion of the dis
trict attorney to refuse to issue a COM
plant, when in his judgment facts did
no. warrant it. From this decision the
Belmont Hall people appealed to the su-
preme court.
It now appears that the supreme court
has passed on this question and holds
that it has NO jurisdiction in cases of
this kind. The opinion covering the point
is that if a supervisor OF Sacramento
county, charging HIM with collecting
illegal fees and neglect of official duties,
and is brought under section 772 of the
penal code. 1t is No. 1S.401, sand is
printed In California Decisions of Sep.
TENDER sd. The opinion was written by
Justice Harrison and is concurred in by
Justices Garoutte and Van Fleet, and is
as follows:
In the matter of William Curtis, super
visor, respondent:
While the respondent held the Office OF
supervisor of the fourth district OF the
county of Sacramento an accusation was
fled against him in the superior court
for that county by d. J. MCGOWAN under
the povisions of section 772 of the penal
code, charging him with collecting ille-
gal fees and neglectine to perform his
official duties. To this accusation the
respondent filed a demurrer upon various
grounds. which was sustained " the
court and the accuser declining to amend
his accusation, the court entered judg-
ment dismissing the proceeding. From
this judgment MCGOWAN has appealed.
The respondent has moved to dismiss the
appeal upon the ground that an appeal
from the action of the court under this
section OF the code is unauthorized.
The charge against the respondent IS
OF a public offense-a neglect of official
duty. or misdem eanor in otfice-and the
proceeding against him is criminal pro-
ceeding in the nature of an impeach-
nent. Case of J. ]. Marks, 45 CAL. 1879.
At the common law an officer guilty of
neglect of official duty was liable to in
dictmsnt and punishment by removal
from Office. Tnroop on Public officers.
chapter XXXII.; BAG. Arb. Offices and
Officers, n. See also opinion of Kent, j.;
in note to People vs. Denton, John.
Gases. Article w., section IS of the con-
stItution of this state, after providing that
certain state officers shall be liable to i'm
peachment for misdemeanor in Office,
9TH Cfxy;l off oh al
be tried for misdemeanor in office in
vuch manner as the leg islature NAV pro-
side.'' By SEXTON 772 OF the penal code
the legislature has provided a manner
for the trial OF certain misdemeanois in
Office by authorizing an accusation IN
writing. verifeds by the oath of any per-
son, to be presented to the superior court
and, if upon hearing thereon after
ctatiion to the accused the charges are
sustained. the court is authorized to re-
move the accused from office. These pro-
ceedings are intend ed to be summary and
as the legislature has made no proyisi on
or review of the action of the superior
fourt its judgment is final. See appeal
of:Houghton, AZ CAL. So; Bixlers appeal,
8 CAL, $50.
Bv article VI, section 4. of the con-
stitution. the supreme court is given APP
pellase jurisdiction Sin all criminal cases
prosecuted by Indictment or information
IN a court of record on questions of law
alone" Section $50 of the penal code de-
clares that
3 1852. Every public offense must be
prosecuted by indictment or information
except.
Where proceedings are had for the re.
moval of civil officers of the state
The Inform alton" here authorized is
that named in tho constitution (artI-
Gle 1, paragraph 81 as the equivalent of
an indictment and which is to be prepar-
ed by the district attorney under the pro-
visions of section 800 OF the penai code.
The case of Marks, su pra, was prosecut-
ed under the provisions of the act of
March IA, 1853, (stats, of 1858 p. 40, and
by the provisions of section OF that act
either party might appeal to the supreme
court as in other cases. The provisions
of this section ceased to exist upon the
adoption of the codes, and section 1885 of
the penal code authorizes an appeal to
this court only in such criminal actions
as amount to a felony. As the appellate
jurisdiction of this court in criminal
cases given by the constitution, extends
only to such as are prosecuted by indict-
ment or information. we have no jurs-
diction to entertain the present appeal.
The appeal is dismissed.