The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-06-18
Assessments of Property the
Exercise of Judicial
Power.
ERROR OF JUDGMENT ONLY.
1t Could Not Be a Crime Other Closely
Connected Cases May Be
Dropped.

dismissed by Judge Wallace.
Last week District Attorney Barnes sur
prised every one connected with the mat
ter by moving that the case be dismissed.
He urged that the Assessor was a quasi
judicial official, and as such could not be
prosecuted except it be shown that he had
been guilty of bribe-taking. As this was
not the idea of the prosecution mistakes in
assessing property could only be held to
be errors of judgment.
Judge Wallace took the matter under
advisement and. yesterday decided that
Mr.. Barnes was right in the matter.
Following is his decision in part:
The accusation against siebe upon prelim-
mary examination pending here is that OF
perjury; the District Attorney OF the City and
County OF San Francisco moved that the case
be now dismissed, because, as he thinks, Slebe
could not upon trial had before jury be con-
victed OF any criminal ohense, and IN his ludg-
ment he ought not TO be prosecuted Tor the
offense of perjury charged in this case This
announced position OF the District Attorney
should put an end 10 this proceeding ii would
be idle for me to hold Siebe TO answer
to this charge of perjury when it is apparent
that if he were so held, the District Attorney,
entertaining the views he does, would, in the
exercise of his discretion, refuse to prosecute
him. While II is clear that the District Attor-
ney cannot assume to formally dismiss the pro-
ceedings here before me against Siebe, 1t is
equally clear that he considers it hts duty to
refuse TO file an Information against him for
the offense OF perjury should hold him to an
SWer; nor is there power anywhere to be found
which can oyerrule the judgment of the Dis
trict Attorney in that respect, or compel him
to file an information and prosecute it against
Siebe; TO hold Siebe to answer would, there
fore, be but TO do an idle thing.
The accusation, generally stated is that
Siebe was guilty OF perjury when, In 1893, he
made oath that he had assessed the property
OF the MarketStreet Railway Company at its
full cash value, according 10 the best OF his
judgment, information and belief. He swore
that he had done what every Judge swears he
will do-decide according to his best judg
ment. in the affidavit upon which the war
rant OF arrest was issued II is charged that
though the property OF that company was
worth upward OF ST., 500 900, Siebe had
sessed ii at less than $4,00o,000, and, more
over that he had made this under assessment
knowingly, willfully and eorruptly"
The substance OF this when analysed is that
Siebe, as Assessor, had decided that property
worth ST., 100000 was worth no more than
81 00O, 900, and moreover, that. he gave this
what he was about when he gave it; "wlll-.
fully"-that is, that he did II on purpose;
"eorruptly is, that he had design. to
thereby acquire some advantage, either for
himself or some one else penal Code, section
Z, passim). But what particular advantage
was TO be thus secured-whether it was an adj
vantage for himself or for another, whether il
was pecuniary, political OF social in char
acter-is not stated or attempted to be stated
in the accusation, as it should have been if the
purpose OF the affiant was to thereby add
another and specific charge to the charge of
characterization otherwise already set FORTH
1t was no doubt supposed that the mere fact
distinctly set forth in the afidavitl that prop
perry worth ST., 500, 600 had been set down
ON the assessment roll as worth less than
81, 600 900. necessarily imported corruption
on the part OF Siebe. How could an under
valuation so marked as that be honestly
made? How could the apparent omission of
some $13 100000 out OF 100000 from
the tax roll be reasonably accounted
for as having been the result OF a mere
oversight, or q mistake honestly made? These
considerations plainly embody the idea upon
which the accusation was really founded;
they. cons titute the striking fea ture of wrong
doing appearing upon the face of the affidavit,
one which, l confess, profoundly impressed
me al the time when issued the warrant of
arrest. And here it ought TO be understood
honest purposes that no accusation OF
bribery has been made, or is under in
yes tigation here-no affidavit charging siebe
with that offense has been presented
as vet. 1t is true that Mr.. Clunie,
who has conducted this case with zeal and
ability, has repeatedly asserted in speech here
that he was confident that if he could get hold
OF certain books in possession OF this company
he could prove that Siebe had been bribed TO
make the alleged under-yaluation; he has ae-
cordingly attempted TO compel the production
of these books before the court, and I have
supported his attempt with whatever power
had. We have so far failed to obtain IN in
force their production l have considered it
circumstance not little embarrassing that,
while the avowed purpose In hand was TO
thereby prove the offense OF bribery, there was
in fact no distinct accusation of bribery
pending here; Notwithstanding that circum-
stance, however, / have pressed the effort TO
enforce the production OF these books TO the
extreme limit of my authority-haye, in TACT,
overstepped the line which ordinarily protects
private affairs from exposure l have done
this because, in my judgment (, these books may
be fairly characterized as not absolutely pri-
waite but as quasi public. They are not the
books of corporation which is strictly pri-
yete corporation, but OF q corporation which
I is quasi public certainly has public
side 10 it-a corporation in which the public
has recognized inIerest-a corporation which
exercises franchise over the public streets of
, the City; and though / know OF no adludi-
Gated ease which has announced such dis
tinction my own view was and is that in such
q condition there should be relaxation OF the
recognized rules applicable TO the production
OF strictly private papers. l remark, again,
however, that no distinct accusation that Siebe
had been bTibed in this business has been as
yet made or is pending for consideration here,
and II is but fair TO hum 70 add that / have
heard no testimony which would justify me in
holding that he had.
Irrespective of precedent and authority,
presently TO be adverted TO, his power is 1.-THE
power 10 hear and determine" and therefore
it is in its nature and essence judicial power.
Should he take bride to influence his de-
cision he would thereby commit crime for
so may Judge who agrees for bride; in that
particular condition personal responsibility
would attach TO the Assessor and to the Judge
not however, for the decision given but for
agreeing for q bride. Aside from this q
decision upon question OF value pronounced
by an Assessor is not distinguishable from
such decision pronounced by Judge, for
such decision rendered by either is but the
authoritative exercise of judicial power for
an erroneous exercise of which in g particular
case neither the Assessor nor the Judge would
incur personal responsibility. The civil re-
| sponsibility OF an Assessor because OF a sup
posed wrong decision he has made in fixing
values has sometimes been asserted in suits
brought against him by private persons sup
posing themselves TO have been injured there
/ by, but so far as / have observed the plaintiff
| has uniformly failed on the ground that in
making the assessment complained of the As
SCISSOR was in the exercise OF Judicial power.
and therefore not personally responsible
surely the same principle mustavail TO protect
| him from q criminal prosecution.
have not yet seen reported case IN which
criminal prosecution in any form has ever
before been set on foot against an Assessor be-
cause of decision made oy him in fixing
values Tor purposes of taxation; so far as
| judicial proceedings appear to have gone
II would seem that such decision was
never before characterized as crime by
-