The San Francisco call., 1896-10-09
OFFICE AND FREE PASSES
Liability for the Acceptance Of
a Pass Discussed by
Justices.
Writ Aimed at Insurance Commits
sioner Higgins Is Denied by the
Supreme Court.

The Supreme Court yesterday denied
| the petition of the Attorney General for
the people, which WAS directed against
Insurance Commissioner NJ. r. Higgins.
The case involved the contest by @. Ges-
ford for the insurance commissionership.
There were two counts in the petition,
which was for writ of mandamus. The
first count alleged that Higgins had in
truded himself into the Office. and that he
had DO title to it. The second alleged that
Higgins had accepted and was using a
pass over the Southern Pacific road, and
it was asked that Gesford be declared,
therefore, entitled to the Office, and that
Higgins be fined $4,000.
A part of the opinion of the court, which
was written by Justice Mcfarland and was
concurred in by Justices Van Vleet and
Garroutte and by Chief Justice Beatty, so
far as denying the writ was concerned,
was partly given up to the consideration
of the degree of criminaiity in accepting a
railroad pass. On this point, the opinion
ran as follows:
1t is true that the mere acceptance of pass
is in itself no crime, but one who holds office
by proceeding like the one here to a severe
criminal punishment. 1t is at least doubtful
if he could be compelled to give evidence
against himself
The opinion concludes as follows:
The issuance of the writ would forever pre-
clude any defense upon its merits. Under the
above views it is. unnecessary to INQUIRE what
similaritv there is between the proceedings of
the people VS.. Higgins and the old writ of quo
warranto. The prayer of the petition is de-
MED and the writ dismissed.
Justice Harrison filed a dissenting
opinion, in which Justices Temple and
Henshaw concurred. In this the liability
involved in the acceptance of a pass by a
public officer was considered. The dis
senting opinion says:
There is n ground for considering that the
present action is instituted under the pro-
visions of section 772 of the Penal Code or
tnat it is to be regarded as criminal in its
nature.
The Superior Court can act under that Sec
tion only when it has received an accusation
in writing that the officer has charged and
collected illegal fees or has refused or ne
elected TO perform the official duties pertain
ing to his office. The only grounds alleged in
the complaint here are the failure to file
sufficient bond and the subsequent acceptance
and use OF a free pass. = OF neither of
| these acts can there be predicated any turpi-
tude or neglect of official duty.
The acceptance OF a pass has no more OF the
elements of criminal nature than would be
in the acceptance by any officer of lucrative
Office under the United States, or the absence
! from the State of judicial officer for more
| than sixty days, or the voluntary removal
from the county for which the officer was
elected, either OF which acts would be q
ground for declaring that he could no longer
exercise the Office.
Whether in addition to such Judgment a
fine shall be imposed upon the defendant is by
express terms left to the Superior Court; but
the right to exercise its discretion in this par
ticular does not limit or qualify its duty to en-
ter the judgment of custer. The dis
cretton given to the court is not to determine
whether IL will act, but is limited to the mode
in which it will act In my opinion
the application for the writ should be granted.