The San Francisco call., 1899-09-17

Of the proceedings upon which the 1ur-
isdictlon depends. 1t brings up no is
sue of law or fact not involved in the
question Of Jurisdiction. Under no c'r-
cumstances can the review be extend
ed to the merits. Upon every question
except the mere question of power the
action Of the inferior tribunal is hnai
and conclusive. This we understand
to be the settled doctrine both In Eng
land and in this country"
The position of the petitioner in this
matter is substantially that the sad
respondent acted as magistrate IN
acted within his authority as such
magistrate up TO the point Of holding
the defendant to answer; that his au-
thor1ty in respect to bail is dependent
upon the. ascertainment or tact,
namely, does the testimony snow that
the proof is evident or the presump-
tion great? and that inasmuch as the
jurisdiction to admit to bail depends
upon the ascertainment of fact, such
fact is the legitimate subject of review
under a writ Of certiorari on behalf or
the people.
The position of the respondents,
however, is that the said respondent,
Hon. Thomas F. Graham, acted regu-
lariy within the general jurisdiction Of
magistrate, which jurisdiction ex-
tends to the determination Of the
question of bail in capital casesssand
that having acted regularly therein
behalf Of the people.
1t is true, as counsel has pointed
out, If certiorari does not lie in case
like the one at bar the rights Of the
people might be seriously invaded II
the magistrate failed to prudently or
even conscientiously perform his duty
therein, but such liability attaches to
the enforcement of the law generally.
The law itself approximates right and
justice Every power has its corre-
spending responsibilities. The people
in a country like this select those who
shall enforce the laws, and If there
be a failure in the administration
thereof the fault is not in the law it
self but in the administration of 1t.
The best and most beneficent of laws
may be the subject of official abuse.
The enforcement thereof in the con-
creto can be no nearer perfection than
is human nature itself.
Upon a full consideration Of the is
sues in this matter, however. the court
is of the opinion that the authority Of
the magistrate in fixing bail in a cap
ital case is found in the general juris-
diction conferred upon him and not
made to depend upon the .sufficiency
of the evidence introduced before him
in each particular case; that in this
case the respondent. Hon. Thomas F.
Graham. had authority TO determine
the question Of bail under such general
jurisdiction; that his action in the ex-
ercise of such jurisdiction appears reg
his determination therein are not the
subject of review by this court.
After the decision had been read Geors
D. Collins carried the matter TO Presidin
Judge Daingerfeld with the result state,
while John A. Hosmer, who represents tn
defendant, appeared before Judge Grs
ham with a bond for Frennas releas
Before acting in the matter, howeve
Judge Graham presented the bond to E1
pert Newman for investigation. Eve
though it is passed upon the bench wal
rant still stands between Frenna and II,
erty, and the story of his crime will pc
haps be told again before final decisio
in the matter of bail is reached.