The San Francisco call., 1897-09-09
ABLE LAWYERS
TN ARGUMENT
Presentation Of the Case
For and Against the
Supervisors.
Attorneys Pillsbury and Baggett
Arrayed Against Each
Other in Court.
Judge Wallace Listens to the Discus
sion of the Constitution and
the Statutes.

Judge Wallace had ano,he big aud dience
when he opened court yesterday morning
to resume consideration OF the suit
brou yht By George K, Fitch for the purpose
of ousting the Supervisors from office
because they failed to fix the water rates
in the month of February, as required BY
the constitution and statute enacted in
1881.
Attorney Pilsbury, representing the
defendants, undertook to show why his
clients should not be punished for their
alleged ne glect Of duty. He did not con-
tend that the rates were fixed in the time
specified by the law, but insisted that the
Supervisors when engaged in considera-
ton Of the water rates were in the dis
charge of quasi judicial functions, and
therefore were entitled to every in
tendment of the law in their favor;
tnut this was, in fact, criminal proceed
ing, and that the court had no jurisdiction
to try the accusations without jury /;
that it vas improper and illegal to pro-
ceed 10 trial on the petition of private
party, and finally that such petition as
had been flied by Mr.. Fitch ior the re-
moyal Of the Supervisors could not legally
be entertained by the court until after o
conviction ad been secured.
In opening his argument Mr.. Pillsbury
said he would address himself to the
motion to dismiss which he hao presented
at the beginning of the discussion.
Mr.. Pillsbury read from the opinion of
the Supreme Court, in which that tribunal
set aside the action taken By the Super
yisors in fixing rates without properly H.
vestigating the subject
Mr.. Pilsbury gave 1t as his opinion
that the Supervisors while fixing the
water rates were acting in jude al capa
city, but Judge Wallace indicated that be
did not agree 10 this.
In his speech MIR. Pillsbury gave it as
his opinion that it was neither practical
nor possible to have fixed water rates in
February.
Judge Wallace called attention to the
language of the constitution providing
that the rates must be fixed in February
He seemed to think that the language of
the constitution was mandatory, not
directory.
Mr.. Pillsbury further declared that the
law denounces this omission on the part
of the Supervisors as nalieasance in office
and insisted that every definition of NAL
feasance shows that it is highly criminal
in character. Therefore. in order to secure
conviction it is necessary to show a
criminal intent on the part Of the defend
N
exist here; but even if it had been shown
this court sitting without a jury could
not pass Judgment on the respondents IN
this proceeding, as there had been no i'll
dictment or information presented IN the
name of the People OF the State of Cali
lornia. as is required in the trial of every
criminal accusation that threatens 10 de-
prive cihzen OF any OF ms rights.
Judge Wallace-Isn't the common law
in force here so far as this proceed ing is
concerned?
Mr.. Pillsbury-I think not. The in
tent of the statute must be strictly con-
strued in favor OF the RESPONDENTS.
At this point Judge Wallace called the
attention of counsel 10 section 10 of the
Penal Code, which reads as follows:
The omission to specify or affirm in this code
apy ground of forfeiture OF a pubic Office or
other trust or special authority conferred by
law, or any power conferred by law to i'm l.
peach rem owe, depose or suspend any public
officer or other person noIulng any trust, ap-
ferred by law, does not affect such forfeiture
or power. or any ceedingiauthorized by law
TO carry into effect such impeachment, re-
moval, deposition or suspension.
Mr.. Baggett made forcible arsument
in response 10 Mr.. Pilsbury's presentation
of the defense. In the beginning of his
speech Mr.. Baggett SAL that the constitu.
ton had declared in express terms that is
provisions are mandatory and that no au-
ihoriiy has been given to any court to de-
are otherwise.
In conclusion Mr.. Baggett asked the
court to declare that the constitution and
statute mean exactly what they say and
to give judgment turnl e the Supervi~ors
out of office for disobeyine the plain pro-
visions of the law of the land.
Judge Wallace announced that he would
take the matier under advisemen, and or
dered court adjourned untii Tomorrow "
morning, at whicn time decision is ex-
pected.