The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1897-09-30
Merits Of Morton's Mandamus
Petition Discussed at Length
by Attorneys.
BUT one REAL is UE is RAISED.
Did the Appeal of the Old Board From
Judge Wallace's Judgment Act
as Stay.

Evidence as to fact and argument as to
law are now before the Supreme Court
The Justices are expected to reach a
decision to-day in regard to the merits of
the petition OF ex-Supervisor Morton for
writ of mandamus compelling Auditor
Broderick to accept the tax levy fixed by
the old Board OF Supervisors.
The Justices of the Supreme Court
sitting in banc. listened all day yesterday
to the representatives, of the contending
boards, and when Mr.. CARRIER ended his
talk and the Justices were informed that
the questions of law were submitted to
them they adjourned.
The Justices promised to render an
early decision. This is of course pleasing
to the people, tor they will soon learn
whether they shall pay taxes fixed by the
new or old board.
The session OF the court was devoid of
interest. Law and constitutional rights
were all that were heard. The attorneys
for the rival boards talked increasingly of
them, and after all was over the support
ers of the old board were willing to bet
dollars to peanuts that it would be recog-
niZed by the court.
They may be good mindreaders, but it
must be said that the Justices gave no
intimaton in any way to the crowd which
filled the courtroom as to what their de-
cision might be.
When the Justices took their seats in
the morning Chief Justice Beatty called
for argument in the case of Morton versus
Broderick. The testimony which had
been taken by Commissioner Searls was
before them, having been written up dur
ing the night by the stenogra pher.
III response TO Mr.. PilsDury's question
as to the time that the court would devote
to argument the Chief Justice said he
thought two hours would be sufficient for
each side. Then the argument started,
and it was centered, az expected, upon
the proposition as to whether or not the
appeal from Judge Wailace's judgment
acted as q stay. Many o.her Incidental
questions were raised in the argument.
The contention of the attorneys for the
new board that the Judgment of Judge
Wallace was seize xeCuting, was bitterly
opposed by the represen tatives of the old
board. They ridicuied the idea, and cited
many cases to show that the appeal flied
by the old board should have acted as a
stay.
Mr. CARRIER, who concluded the argu-
ment for the old board, made much of the
appeal staying the judgment, and quoted
authorities galore on the subject.
He dwelled particularly upon the case
OF Covarubias against the Board OF Super
visors of San Diego County, and held that
the doctrine laid down by the Supreme
Court in that case had never been de-
parted from.
During the proce seedlings Thomas V.
Gator, representing the intervenor, Jo-
seph Greenberg, addressed tie court after
being snubbed by the Justices. He argued
in favor of Petitioner Morton and the old
board, and tired his hearers with a con-
stiJutional argument.
In afterunoO old man
who is an attorney, interrupted the court
and caused considerable amusement by
filing a pencil written brief in regard to
some other case
The argument was opened in the morn
ing by Mr.. McEnerney, and after he had
recited the case of the petitioner cited
what he considered the points at issue.
He stated that the following questions
arose and were in a way involved in the
case at issue:
First-Is mandamus the proper remedy
to try the disputed questions in this case?
Seconds there an appeal to this court
from the judgment entered in the case of
Fitch versus the Board OF Supervisors?
Third-Are the defendants in that action
entitled 10 remain in Office pending APP
peal, having served and filed their notice
of appeal and given the undertaking re-
Quired by law?
Fourth-Is the appointed board de
iure board? In this question are in
volved, Were the six mem bers appointed
to represent wards in which they never
resided or were eligible to the offices to
which they were appointed? Were the
undertakings given in the manner de-
tailed as qualifications for the offica2 Is
the power OF appointment to these places
In the event of vacancies, lodged in the
Mayor or the Governor? If lodged in the
Governor, were the bonds not given before
these appointments took place, and are
they not therefore bad.
tifth-Without regard TO the question
whether the new board is, or ever was, a
de lure board, has the old board acqui-
esced in its removal and abandoned or
surrendered its offices so as to constitute
the new board de facto board2
Sixth--ls the signature of the Mayor
necessary to the validity of the tax lew
and if so, has it not been signed by the
lawful acting Mayor
Mr.. McEnerney argued on all these
questions at length. He called up the
Covarubias case and read to show that the
now-famed gentleman had been removed
from the office OF Sheriff and that he was
awarded the right of appeal. He cited
other cases to show that appeals SO taken
acted as supersedeas. He cited the case
of Marks, and after explaining about the
changes in the constitution of the State
declared that he had right to appeal on
four different grounds.
Then he talked of the hasly appoint
ment OF the new Supervisors, argued
against the county government act, and
also de clared and cited cases to show that
the forcible removal of Supervisors and
recognition by the Mayor amounted to
nothing, He contended that the Mayors
signature was not essential to a tax levy,
arguing that the law so providing is I'M
constitutional because it was special legis-
la;ion, applying to San Francisco alone.
Mr.. Baggett, for the Auditor, followed
Mr.. McEnerney. and made strong argu-
ment in opposition to the granting OF the
pc tition OF ex-Supervisor Morton for his
writ of mandamus. He answered Mr..
McEnerney questions Ill a clever way,
but when he intimated that the old board
was removed tor malfeasance Chief Justice
Beatty stopped him and instructed him