The San Francisco call., 1910-01-04
POINT OF LAW
TURNS TABLES
ON ATTORNEY
Counsel for Rudolph and Jus
SpreckeEs Forced to Take
Defensive in Proceedings
Attempt TO Have Officers of the
Oceanic Steamship Co. AM
swer Questions Fails

nOIDn ana Gus 0IIt' hNlo 81 Nl'~'-
to have the Union trust company re-
moved as trustee Of the s2,5oo.00o bono
issue of the Oceanic steamship COMPANY
was forced to take the defensive yes
terday in the hearing before Juose
Muraskv. This hearing grew OUT OF
the applfcations of Sullivan's clients Tor
= citation commanding John D Spreck-
els and other officers OF the defendant
companies to show cause why they
should not be punished for contempt OF
court.
Two sets OF citations were served
last week. the intent being TO put John
u. Spreckels. A. 3. Spreckels, w
Hellman Sr.. X II. Thomas. +. :. sam
uels and ". .. *. Gibson on the de-
fensive in 4 contempt action on ac-
count of their refusal to answer certain
questions put TO them as witnesses
when called TO give depositions before
= notary public These We're MADE
returnab bic YESTERDAY afternoon. and
the unexpected reversal or the case re-
suited from the showing made by the
attorneys Of the two defendant compe-
nfes that the plaintiffs We're seeking by
illegal means and procedure TO deive
without limit or restraint into the pri-
vate affairs Of the companies concerned,
ARGUES AGAINST SECTION
instead Ol DIAnklIS A4lt 4lAFoNA'li ~
alleged contempt Of court 10 4 focus,
sullivan appeared in the light of argu
ing for the unconstitutionality of A sec
lion Of the code of civil procedure on
which last week he based one set of
the contempt petitions At the same
time he insisted that the procedure
taken had been carried out according
10 the provisions Of this section, while
the attorneys for the witnesses of the
ha4
was not the case.
The first set of citations issued last
week on the showing made in peti
tion and affidavit of Gus Spreckels or
dered John D. Spreckels and the other
witnesses who had refused TO answer
questions before the notary to show
cause why they should not be punished
for contempt OF court This citation
was based on section 1909 and succeed
ing sections OF the code of civil pro-
cedUre covering the general subject OF
contempt.
Friday of last week. however. the
second set Of citations was issued, or
dering the witnesses to show cause
why they should not be forced 10 an
swer the questions put to them. In his
opening statement yesterday Sullivan
declared that II was not the intention
10 ask that the witnesses be actually
punished for contempt, but merely TO
secure an order from the court in
structing them to answer and warning
them they would be punished in case
of 2 second refusal.
II. J. Brobeck, speaking for the at
tornevs Of both defendant companies
responded TO Sullivan's statement with
2 motion TO have the citations an
nulled. set aside and qusshed on the
ground that they were issued by the
court without authority or jurisdic-
tion. without due notice and in denial
Of the right OF the witnesses to be
heard in their own behalf.
CITES LAW GOVERNING CASE
In support Of his motion Ia annul the
citations, Brobeck relied upon section
lssl Of the code Of civil procedure.
adopted in 1907. in which an express
procedure for such cases is provided.
The section refers explicitly 10 refusals
by witnesses 10 answer questions. and
continues as follows:
When the subpoena, in any such ca Sc
requires the attendance of the wit
ness before an officer or commissioner
out OF court, il is the duty of such
officer or commissioner TO report anv
such disobedience or refusal TO the
court issuing the subpoena: and the wit
ness must not be punished for any
refusal TO answer q question or TO
subscribe 10 an affidavit or deposition
unless, after a hearing upon notice, the
court orders him to so answer or sub
scribe. and then only for disobedience
10 such orders
The method of procedure described
in this section, Brobeck asserted was
prescribed by the legislature for the
particular purpose OF protecting wit
nesses from illegal inQuisitions attempt-
ed without any regard for the rules
governing admission of legal evidence
and Of putting a stop TO boundless fish
ing expeditions by attorneys into sinh
9ects into which they had no right 10
inquire
II is plain that the procedure pre-
scribed in section 1891 has not heen
complied with, declared Judge Mu
rasky, interrupting Brobeck and look
ing 10 Sullivan for an explanation.
sullivan asserted that the second set
OF applications fled last week full
hlled the requirements. but Rrobecl
insisted that they did not In his at
tempt to make an adequate answer Sul-
livan was forced to attack the con
stitutionslity OF the section in question
Brobeck promptly offered TO take this
question to the supreme court for set
tlement without more delay Sullivan.
however, insisted that the superior
court in which the action was pending.
had the power to go on with the con-
tempt proceedings despite the pro-
visions Of the section.
Brobeck answered that the matter Of
the relevancy Of the questions which
the witnesses refused to answer could
be inquired into only after the pre-
fiminary matter OF procedure had been
determined.
We do not propose to submit to q
fishing expedition or to any such in
QUESTION this unless we have 70. /"
lie asserted. Until the proper pro-
cedure is taken and we have an on
portunity to argue the question of rel
evancy upon due notice in regard to
each question propounded, as is our
right under this section. we shall re-
fuse to proceed. It is practically ad-
mitted by Mr.. Sullivan that the whole
thing hinges on the constitutionality Of
this section. The process under which
We are brought here does not comply
with the provisions OF the code. What
would be the limit OF this inquiry If Mr..
Sullivan should have his way? We
would have to go back and answer all
kinds OF questions and be absolutely
at the mercy OF the inquisitors, or else
accept imprisonment for contempt
In this particular case we have been
charged with fraud and other things.
Are we then, 70 be at the mercy of
those who make these charges, and