The San Francisco call., 1907-06-25
DUNNE MAY GALL
ON SUPERVISORS
To GUST MAYOR
Code Provides for Ending
Dispute as to Status of
Schrnitz
FEARS TO STEP OUT
Believes REIMBURSEMENT of
Post Would Be Taken
as Confession
LANGDON CONFIDENT
District Attorney Feels As
Sured Office Will Be
Vacant
LANGDON CONFIDENT

Whenever an officer is removed,
declared insane, or convicted of fell
ony or offense involving a violation
of his official duty, or whenever his
election or appointment is declared
void, the body, judge or officer be-
fore whom the proceedings were had
must give notice thereof to the officer
empowered to FIJI the vacancy"-Sec-
ton 9e7 Of the Political Code.
Decisive action may be taken by
Judge Dunno on Thursday. when Eu-
gene E. Schmitz comes up for sentence.
to remove any lingering doubt that the
one time chief executive of the city has
as to his Official status. Acting upon
the section of the political code quoted
above. it is within the authority of the
judge to notify the. supervisors that
Schmitz is no longer mayor and thus
pave the way for the election of his
successor. Significant in this connec-
tion is the announcement of the prose-
steps until after Schn,itz has gone be-
fore Judge Dunno for sentence.
Schmitz will fight until the end to hold
on TO the Office of mayor. After con-
ference with his attorneys yesterday it
was announced, first, that Schmitz
would not resign, and, second, that he
would continue to resist the attempt
to supplant him with an acting mayor.
It was stated that Schmitz would make
every effort to cling to the job from
which the prosecution contended his
conviction separated him.
The attorneys who represent Schmitz
have made preparations to fight in the
courts the action of the prosecution in
placing Supervisor Gallagher at the
head of the city government. Attor-
neys William H Metson and C. H.
Fairall, speaking for Schmitz, said yes
terday that their client would continue
to exercise the functions of the, Office
from the jail
Serious complications are threatened
unless the matter is speedily adjudi
Gated. and both sides appear to be un-
willing to take the initiative in a court
action. The attorneys for Schmitz
take the view that he is mayor and
that any court action to question his
authority should emanate from the
prosecution. The prosecution, on the
other hand, takes the view that it has
acted in a perfectly legal manner in
naming Gallagher as acting mayor,
and that If the matter is to be dis
puted it is up to Schmitz and his at
torneys to begin an action at law.
MEANING OF CONVICTION, :.
The claim of the prosecution that
with his conviction by a trial jury
Schmitz ceased to be mayor is dis
puted by Fairan. The attorney said
yesterday that the Judgment must be
made final by higher court before
Schmitz lost his Office. Reduced to its
lowest terms, the question hinges on
the meaning of conviction" the prose-
cution contending that it means a YER
dict of guilty by a trial jury and the
attorneys for Schmitz holding that it
means the final stamp of approval by
the higher court.
In support of it's contention the
prosecution referred to the case of the
people VS.. Ward, 134 California Reports.
In this case the Judge said.
1T is contended that at the time
the witness testified he had not been
convicted of felony; that to sustain
the ruling of the court 1t must be
assumed, as a matter of law. that the
verdict of guilty constituted a convic-
tion. That such verdict does constitute
q conviction within the ordinary as
well as the technical meaning of the
word seems to be well settled
Justice Story of the United States
court in the case of the United States
against Gilbert said:
And here In order to avoid ambig
uity. it may be proper to state that
conviction does not mean the judg-
ment passed upon the verdict; but il
the jury finds him guilty he is then