The San Francisco call., 1907-01-08
JUDGES ACTIONS
MAY UNSEAT
HOSNER
Graham and Kerrigan Work
Trick Which Paves Way
for Contest Over Office
ASSUME POWER AND
MAKE CHANGES
Governors Appointment Is
Followed by Mix-Up That
Probably Clouds Position


A juggling Of departments and an
assumption of authority which were
strongly suggestive of political motives
was indulged I'm yesterday morning in
the Superior Court by Judge Graham
ed down n decision n Judge of the
Superior Court after his term of Office
as a Judge of the Appellate Court
had begun, and Judge Graham sane
TONED Kerrigan's action, which opened
the way for contest of the seating of
Judge Hosmer under Governor Par
dee's appointment.
Despite the fact that his term of
Office as Judge of the Court of Ap-
peals dated from midnight Sunday
night. or at best. in face Of serious
doubt as to any other construction of
his position, Judge Kerrigan went
through the form of holding court as
a Superior Judge yesterday. giving
a decision in a minor case. Judge
Graham accommodatingiy closed his
eyes to the possibility of the complica-
tions which might. and probably will.
arise from Judge Kerrigan's action,
and approved the latter's assumption OF
authority by issuing an order trans
ferring him from Department to De-
partment OF the Superior Court to
eliminate q conflict when Judge Mogan
appeared to assume his duties at the
head OF the former department.
The accomplishment OF the trick by
which the foundation was laid for
fight against the Legality of Judge
Hosmer's appointment was thinly veiled
under an excuse OF constitutional au-
thorfty. In the constitutional amend
is provided that the judges first ap-
pointed should hold Office until" the
first Monday after January l. In pro-
viding for the election of their sue
cessors the amendment states that
their term of Office shall be the same
as that of the Judges of the Superior
Court. The term of the Superior
Judges. in the language of the consti-
tuition, is from and after" the first
Monday after January 1 succeeding
their election.
The words from and after" accom-
modatingly loaned themselves to a lib
eral construction. Taking them to ex-
clude the Monday following January
/. Judge Kerrigan's term would not
begin until midnight last night, and
this was the construction he accepted.
Accordingly he held court, and in spite
of the fact that Governor Pardee ap-
pointed Judge Hosmer yesterday
morning to succeed to the vacancy
caused by Kerrigan's change to the
Appellate Court, the records of the Su-
perior Court show that Judge Kerri-
gan returned a decision at 10 minutes
TO IL o'clock.
A literal construction of the constitu-
tional provision that the appointed
Judges of the Appellate Court should
hold office until" the first Monday
after January / sets the expiration of
their term Of office at midnight Sunday.
This was recognized by Judge Graham
himself, in relation to the Superior
Court. as was shown by the fact that
he personally installed Judge Mogan
in office and sanctioned Judge Hosmer's
withdrawal at midnight Sunday. More
over, the most competent local authori-
ties on constitutional law declared yes
terday that the words from and after
must be construed as inclusive as well
as expressive of futurity, and that
from and after the first Monday after
January 1" includes the Monday re-
ferred to. According to this Judge
Kerrigan's term as Superior Judge ex-
pired Sunday night at midnight, when
his term as Appellate Judge legally be-
gan. His decision given yesterday
was therefore illegal and Judge Gra-
hams order transferring him from De-
partment to Department to assume
Judge Hosmers calendar was without
effect. except the effect it may have in
forming the basis of a contest against
Judge Hosmer-
The complications resulting from the
retention by Judge 'Kerrigan of his seat
caused trouble in Superior Court circles
and proved a harder nut for the judi
cial minds to worry over than did ever
the classic problem of How old is
Ann?"
Was Judge Kerrigan a Superior
Judge? He had the advantage of pos
session of the office and Judge Gra-
hams sanction to support his conten-
tion that he was. yet there was the
constitution and Governor Pardees ap-