The San Francisco call., 1897-08-28
CITY DADS
HAD VERY
HARD LUCK
They Lost Their Third Point
in the Suit to Gust
Them.
THE LAW SEEMS TO BE ADVERSE
Judge Wallace Orders Them to
Go to Trial Next
Thursday.
B. ClUSg THIS is A SUMMARY ACTION
Attorney Nc -nerney Discusses the
Plan of Campaign on Behalf of
the Defendants.

The Board OF Supervisors have met their
third defeat in the litigation Instituted by
George X. Fitch to oust them from Office
for alleged malfeasance.
The first victory for Mr.. Fitch was in
the order male by Judge Wallace over
ruling their demurrer TO the complaint :;
the second was recorded in the Supreme
Court proceedings, whereby it was held
that the Superior Court has jurisdiction
of the case, and the third setback came
yesterday, when Judge Wallace ruled that
the defendants were not entitled to delay
beyond few davs to prepare for trial, and
set the matter for hearing on Thursday,
the second OF next month.
When the case was called on Judge
" allace's calendar yesterday Attorney
Garret McEnerney filed the answer of the
defendants, as was required by the Su-
preme Court decision. He then requested
that the matter be continued for several
weeks IN order that the accused men
might have an opportunity to prepare for
trial.
The court denied this motion, remark
ing that this is a summary proceeding and
ought to be disposed of at once. He
therefore set the trial down for the first
dav available on the calendar.
MI. MCEHSTnol ulSClOSSu lue meluOQ Ol
his defense in the formal answer that he
filed in open court. The answer alleges
that the Supervisors were not guilty of
malfeasance in office, though they failed
to fX in February the water rates TO be
charged by the Spring Valley Water Com
pany. 1t is further set up that the statute
does not require n specific compliance with
the direction to fix the rates in February
but that it is intended 10 control tic Sn-
pervisors in the discharge OF their duty in
such manuer that they may best serve
lhe interest of the community; that ii
the rates were not fixed in February it was
because the Supervisors were making
proper and necessary inquiries IN regard to
the business under consideration. and that
in any event no one had been injured,
since the rates have been fixed in q legal
and Legitimate manner, even though such
action was not formally taken in the
month specified by the constitution and
statute.
Attorneys Schell and Baggett repre-
senting Mr.. Fitch, contend that the stat
ute must be construed to mean just what
it says, as it was enacted 50 ubsequent to
the adoption of the consti uition and in pur-
suance of provisions contained therein.
The trial next Thursday promises to
prove a well-fought battle on both sides,
and already politicians and other citizens
are asking who Will proba bly, be appointed
cided that the Mayor has the power TO
name their successors, should they be
ousted.
There seems to be general opinion that
the Supervisors have q hard igh: on their
hands and that the legal chances are
against them, the constitution and stat
ute being both adverse 10 their conten-
ton.
There is q difference of opinion in regard
to the appointing power in case of a
vacancy ensuing. The ma iority of lawyers
appear to think that the Mayor will ap-
point the new board if the present board
should be cast out, but there is chance
that a special election would be necessary
to fill the vacancy. The consolidation act
says the Mayor shall fill vacancies, subject
10 confirma ton by the remaining men,
bers of the Board of Supervisors. Il there
be no remaining mem bers, OF course there
could be no confirm alton, and as they
could not legally act before they were
confirmed, the Mayors power to appoint
would seem to be nulIity. A few hold
that the Governor would be the potent
factor in the naming of the new mem mbers,
so taken altogether there is delicious un-
certainty in the situation that is more in
terestipg than pleasing to the politicians.