The San Francisco Call. Newspaper, October 7, 1897, Page 2

2 <& THE SAN FRANCISCO CALL, THURSDAY, OCTOBER 7, 1897 OLD OUSTED BOARD RESTORED T0 POWER BY THE SUPREME GOURT Continwed from First Page. legal, and should be accepted by the Auditor asan act especially enjoined upon him by law. Yet, notwithstanding that mandamaus lies to compel the performanee of such an act, and, in- deed, that 1tis usually the only effective proceeding for the purpose, it is contended that in this case it will not lie becau<e titie to office is necessar:ly involved. Since the Auditor couid make the sams defense to an attempt by the new board to compel him to recognize its rate, would then result that performance of this mostimportant official duty could never be edily or effe 1y enforced, or enforced ut all. It is the undoubted rule that mandamus tletoir e 10 office.” But this is founded upon the just and expedient principle he writ w ver issue when the remedy at law is plain, speedy and adequate. n applicatio of maudate to try title to office would be answered atonce by suggestion that the law affor equate process and procedure by an action of quo war- rento or usurpation of office. But, wheu the writ is evoked to enforce & specific duty, and remedies at lnw are not aaequate, aid wiil not be refused merely because occupancy or in- cumbaney or title is incidentally involved. It will act under such circumstances as does it ire into and defermine rights so far as, but no furtier than, may be necessary the granting of the relief sought. The case in which the doectrine is invoked that man- 1us will not Jie to try title to office, are those like People vs. O.ds, 3 Cal. 167, and Kelly vs. 460. where the respondent being admitted or proved to be at lesst a de facto ©Xpras. purpose of the action on the part of the petitioner is 1o establish in Dim- And this the courts uniformly hold may not be done biished that the respondent is a de facto officer, s the v holds valid the acts of such an officer, the question of itigated will be relegated to another forum. So in & admitted or established that one or another of the rther inquiry comes to an end, since the official scts by the Auditor and are valid. iied Lawrence vs. Hanlev, 84 Mich. J. L.332; People ex 1l Bank v q State . Lic question of th ¢ office as bétween tue contending is procesding, for itis the right ofeither to act, as coniradistinguished from the either has to the offi this inquiry goes; and, evew 1f_the lnw were is in favor of the power of the court to euter upoa such inquiry in consequences whicn must foliow the present uusettled condition of the delay, o on and injury to private and public interests vy reason disaster waich wouid iollow & failure to levy and collect taxes, and policy that public officers should be positively known, and the s definitely assured, would be warrant enough in this case to prompt a court to retain this proceeding when no express :aw prohibits it. Upon the hearing argument was advauced 1o suow the uuconstitutionality of the act r which these proceedings were had. 1f these arguments are sound it would of necessity QTD"O"O’ TS UT TSI SE BB U IT LIV VLTIV me und LACKMANN WILL STAY. g Supervisor Lackmann—I think that the decision settles the matter. I will go back to the old board, for that will leave us in the same position as we were before the new one was appoinied. Ido not intend to resign, for that would do no good. Gmmmumum&mmxuwumufl follow that the judgment of the trial court is not merely voidable on appeal, but absoiutely void. Those questions are passed, not us being unimportant, but as being more appropriate tor determination upon the appeal from the judgment. 3. Upon the character of the procecdinzs before the trial court it was insisted by respond- that i was tislly criminal, and that under a criminal judgment of foriciture an ap- :al does noi stay the execution of the judgment nor reinstate the evicied officer. Some Juntenance is given o this contentio: 5) ana by the language of the act . { which the boerd is to be onviction.” But the Legis| ance or malfeasance—in short, a oy the definition of crime in_the Penal Code (section which designates the failure to fix rates as ~mal- smed guilis,” and provides for a “forfeiture” ol ture may provide that an act of misfesance, non- dereliction 1n official duly—may work & ferfeiture of Yei that uct need not nec bea crime It maybe mude & crime punishable by ire under criminal proceeding; bui equaly it may be made a dereliction working a process. Prolonged absence of judicial ofticers fiom the State (constitu- 9), the futlure of the Sheriff promptly to sccount for fees col.ected . are scts working forfeilure of office waich may be exacted in & oftic torel! eiture u; The action was at the instance and in T process were served with the summons ise was conducted as would be s civil U y. Fina that the proceeding was crimina the utter dest:uction of his cause. For, if eriminel, then indisputably a denicd u right reserved to them and to all by the constitution of the Siate, namely, that osecutions siall be conducted in the name snd by the Authority of the heoplis Of the alifornia and Dot by a private person. (Constitution, ATt ec. 20.) " But it is ecessary to decide he proceeding was or was not Crimin matier will be cussed Upon be upheld. ing, visors ax & trendere nsisted by | that toe con for appeais in , that the | not te powe ¢ judgment of the : nuch weight mi r.al con ht be due is th argume aiter. ollow it cauno: ve opened for res nov . B cause undar igent urge iu the earlicr ¢ ion ot the | State (4 IV, se 2 Art. IV, sec. 18) it was held by our prede- | cessors ¢ e Legislatur proce 3, 1 20251110108 t ! be concluicd that it was adopt rpretation and construction which th h Suaron . 185 vs. Duns ; thira, the adoption of the accordance that principle, and ¢ Code oi Civil Proceaure, has uestion- iction of such appeals in @ mul e 0f cases of QUff rent kinds, aud this e aud sanetion bot tne Logisiature and the courts fixes the construetion e was vefore this courtin bank iu 1859, and it was then held wit u 104 Was not more restriei: sdiction in such cases. (Lo hese eircu nces and view of tne fact that therels ituiion of 1879 makiug the original jurisdiction of the S greater (xtent vas that of ‘tne county courti appeal to this con do not icel called upon t ecour: in Knowles vs. Yates is sound. It is sufficient tos eached has bee tioned by long acquiescence ou the pai ceses or whether the of te cous exposition, even of the cons i in for & periol of y the 13011, 17 Mas 1 Cal, ich T constit Packard vs Peopte vs. Fitch, 1 sap O L L L L L L L L L JUST WHAT DEVANY EXPECTED. : Supervisor Devany: *We never thought it conld be otherwise, for ;: our atiorneys assured us that there was no doubt of the final outcome. I supp! that the other side will appeal, but pendiug such action we will try to clean up the accumuiation of business that has been piling up since the time that we were ejected from the rooms of the board. I have heard that one or two of those who refused to stand by tbe board b o interpretation, unless it is apparent from the ianguage used that a more zeneral or res sense wes intended. Iu ¢ J % the weaning of & constitutiona: provision 1t wil. red tuat those who framed it and adopted it were conversant with the iDterpretation which sd been put upon it under the constituilon from which it hsd Le-n copies rule even &s 10 provisions takex from the constitutions of other States—ihe judicial construc- Francisco of fixing those rates in the month of Fehruary of each year. Section 8 of the same act declares: “Any Board of Supervisors or other legislative body of any city and county, eity or town which shall 1ail or rejuse to perform any ol the duties preseribed by this actat the time and in the manner hereinvefore specified shall be deemed guiliy of malfeasunce in office, aud upon conviction thereof at the suit of any interesied party in any cour: of competent junsdiction shall be removed from office.” The Board of Supervisors of the city and county of San Franciseo failed to fix water rates in the wmonth of February, and thereupon at the suit of one Fitch and under the authority found in the aforesaid section of the act uf 1851 the Suver- visors of said city and county have been removed from office by the judgment of the Superior Court. The construction given this act by the learned Judge of the trial court, as evidenced by the judgment rendered, is that the word ‘*board” has reference to and inciudes individually all (e members of the bosrd. This is apparent when upon inspection we find the judgment removing each member ot the board frum office. This construction is evidently ihe sound McENERNEY SAYS IT IS NOT FINAL. Garret McEnerner—The decision of the Supreme Court as rendered to-day is not final. It simply decides, according 10 the second para- grapb, that pending an appeal the old Board of Supervisors remainsin office. Judge Garoutte, in his opinion, declares the act is unconstitu- tional, because it makes no difference, uccording to Judge Wallace, whether a man is guilty or innocent he must go, and it is against alt laws of American jurisprudence to punish an innocent man. In my argument before the Supreme Court I raised six points, five of which are deciaed in my favor. They are as ‘ollows: First—Is mandamus the proper remedy to compel the Auditor to per- form his duties relating to the computation of taxes? To which the court answers “Yes.” Second—Is there an appeal from the judgment of the Superior Court removing the board? *Yes.” Third—Are the members of the board so removed entitled to remain in office pending the hearing of that appeal? *Yes.” Fourth—Is the appointed board a ““de jure’” board, which I shalt con- siger as follows: (a) Are the members who do not reside in the wards from which they were appointed elizivle to the office? (5) Are the under- takings given before the appointments were made sufficient qualifica- tions? (¢) Does the power of appontment 1n case of such vacancies reside in the Mayor or the Governor? (d) If in i1he Governor, are the bonds given and approved before the appointments were made by him suflicient? This point is not necessary to be decided at present. Fifth—Has the old board acquiesced in its removal so as to constitute the new board a de facto boara? *No.” Sixth—Is the signature of the Mayor necessary to constitute a valid tax levy, and, if so, hasit not been signed by alawfally elected acting Mayor? “No.” Tbis is the substance of the decision. The matter may come up again on appeal, but until that appeal is decided tue board will continue in office. n the act, for a ‘Board of Supervisors” is an vilty of a malfeasance in office, and could not be convicted of a malfeasance in office. *bourd” holds no office, and, thercfore, of necessity could not be removed irom office. 1ce the section has uo iuteitigible meaning, the word “malfsasance” relates to the members individually constituiing the board. This is the necessarv construction of the act, and such construction renders it paipabiy un- coustitutional. It violates {uneamental principles of iaw. The Legislature has no power arbitrari.y to deprive men of vsluable rights. It has mno power to declare an office Torfeited becanse, forsooth, the holder of another office has failed to do his duty. Justice is not administered that way. 'Proceedings under this_section are quast criminal, and one person y noi bs punished tor the crimes of another. Under this section the innocent and toe guilty are punishable alike, and the law never justifies tae punishment of a person who has committed no crime. A public official who has aone his duty in all things is not guilty of ma!feasance in office, and the Legisiature has no power to s declare. It section 8 of the act had declared the peu: 10 be & flue of §500 or an Imprisonment in the Couty Jail for thirty days, rather than removel from office, it cou:d hardiy be contended br anybody that a Supervisor who had done eversihing in Lis power to earry out the law in the fixing of water rates could be fined or imprisoned because the rates were not fixed in the month of February. Noactof the Legislature could iurnish legal justification for such a pro- ceeding, aud the fact that this judgment is one of forteiture of office rather than fine or - prisonment is wholly immaterial. The Legislature has power to fix the tenure of office. 1! has the power to declare that, upon the happening of a certain event, that official tenure shall cease, but it is evident tnat such was not toe intention here. By this act the Legislature was not fixing terms of office. This section was enacted in furtherance of the cousii utional provision which provides that the Legislature may declare penaities for a failure to fix water rates. The purpose of the Lexislature in enacting section 8 was to visit a penslty upon each member of the Board of Supervisors in the form of a for eiture of oftics 1or a neglect of the board to fix rates. The phrases *‘gulity of malfessance” and ‘‘upon conviction,” which are iound in the act, abuad- one, and the only reasonable one that can be g ity ounly w in sexsion. It could not be antly tndicate that this was the purpose of the section Sec'ion 11 of articie XX of the Constitution declares: “Laws shall be made to exclude from office, serving on juries and from the right of suff-aze persons convictad of bribery, perjury, forgery, mulfeasance in office or otner crimes.” We here find “malfeasance 1n ofice” piaced in the'Category of high crimes and the Legislature directly empowered (o cut off the rights of citizenahip from ail those adjudged guiily thereof. The Supervisors have been convicted of malfeasance in office. Grave conscquences follow from such a couviction and no legisiative sact, however expilcit its in‘ention, can visit those consequer.ces upon innocent men. For the for :goinz reasons the law is uaconstitutional, tne judgment of the trial court re- moving the individual members of the Board ol Supervisors irom office void and the writ of mandite should issue. Iconcur in the juagment. GAROUTTE, J. Auditor Broderick said last night: “This dacision is pot ary surprise to me, but it will make a great deal of work for my department. I have handed the printers the copy for the charts, based on the old board’s levy, so marked a3 ta simplify the clerie cal work on sums from $5 10 $50,000. I shali put a foll force of men on at noon to-day | and work three shi'ts rignt throuzh the twenty-four hours for nine or ten days. I:] usnally requires three weeks for the work which we now have but ten days to tinish. *‘There is one phase of the decision that pleases and surprises me agreeably. It is that part wherein the court aeclares that ths Mayor has no veto power where the tax levy is involved. The Mayor's signature is now unessential, and Ishall pay no (T TTTTTTTTITTTTTT LIV S OTTTT THTTTTETTTTXNTTTTY E- A BAD PRECEDENT, SAYS BAGGETT. : W. T. Baggett: “They say that is the law, and while we differ with them we can but bow to the decision. I think that it is a bad precadent to establish, for it virtually makes a dead letter of the law which says that offending officers may be removed summarily from office. “This decision makes a very bad precedent, for hereafter the people will be powerl; to remove any offending cflicer, for :f one were removed he would take an appeal, snap his fingers at the people, and in all likeli- attention to it. This has been my contention ail the time. The resalt of this will be that people will not have to wait eight or ten days for the Mayor and Colonel Sullivan to look over matters that do not in any way belong to them.”’ The Board of Supervisors met in the Fulton House yesterday afternoon at 4 o’clock, but as no word bad been received from the Supreme Court the gathering was adjourned without any business having been transacted. When most of the members bad left the weicome news of the decision arr.ved ana there was a quiet JANIE T FIRST 10 TRE WIRE Wins the $5000 Ken- tucky Futurity for Two-Year-Olds. Driven by Fuller, She Takes the Second Mile Heat in 2:15 1-4. Sallle Toler and Countess Eve Cap- ture Their Respective Events at Lexington. €pecial Dispatch to THE CALL. LEXINGTON, Ky., Oct. 6.—Another large crowd witnested the second day’s sport at the meetinz of the Kentucky Trotting-Horse Breeders’ Association. The weather was perfect and the track fast. The event of the day was the §5000 Futurity for two-year-olds, won in record- breaking time by Janie T, half-aister to Leone, which held the yearling race rec- ord of 2:281{ in 1892. Summaries: The Wilson stake, 2:20 cluss, pacing, purse $2000, Sallie Toler won, Satin Slippers second, Nora L tnird. Best time, % Two-year-old Futurity, vilue 35000, Janie T, b. £., by Bowbells, dam’ da (Fuller), won in straight seats. Time, 2:1714—2:151;. Peter the Great second, Limerics third. Charley Herr, Miss Duke, Ambi aud Mattie Geraldiue also startec. 2:15 class, trotting, purse $1000, Countess Eve won, Dr. Robinsou seconc, Sunland Clay tuird. Best time, 2:09)5. CINCINNATI, Ouio, Oct. 6.—Results at Latouia: Seven furlongs, selling, Dago won, Parson second, Lady Britannic third. ~ Time, 1:3054. Six furiongs, Frank Thompson won, Ponius second, Millstresm third. Time, 1:153. One mile, Whateryou wou, Belie bramble second, Madeline tnird. Time, 1:43%. One mile, Madrilene won. Fissy & second, We Know 1t third. Time, 1:453(, Five furlongs, The Red fii.y won. Lena Myers secoud, Contrin third. Time, 1:03%. Seven furlongs, selling, Kalitan won, Domi- nica second, Feunette third. Time, 1:293 DETROIT, Mici., Oct. 6.—The attend- ance was large and the sport of an excel- }enx character at Windsor to-day. Track ast, Six furlongs, selling, Nover won, Tommy Butter second, Eisie Forgusou third. ~ Time, 153, Seven furlongs, Go To Bea won, Tally Ho secoud, Mary Prather third. Time, 1:2915. e furlongs, selling, Aunt Bird wou, Earl Fouso second, Florie third. Time, 1:0315 One mile,” selling, Traveler won, Lisket s.cond, Gioja third. ime, 1:4834. Six furlougs, selling, Gasperone won, Braxey second, Gomor third. ' Time, 1:15%. R PEA ON EASTFRN ZRACKS. Purser’s Buckwa Wins a Handi Aqueduet, AQUEDUCT TRACK, N. Y., p at Oct. 6.— Buckwa, piloted by Wiilie Martin, took | the handicap to-day by a sbort head from Lobengula with Thorpe up. The winner was favorite in the betting, Three of the tirst choices lanaed purses. Five furlongs, two-year-olds, selling— Gen. Maceo 99 (O'Cennor). 6tol.. 1 *Long Acre 101 (Forhes:, 7 to 5. 2 ‘The Kid 107 (Thorpe e 3 time. 1:0214. Gen Harry Craw.ord 107, Julius Cre: 107 Seivoria 104 and insp tion 101 also rau. >Favoria, 2 | sumniary: Whitman and Ware of Har- Tom Coop:1, Detroit. third; Nat Butler, Bos- ton, fourth. Time, :33 5-5. One mile, open—Tom Cooper, Detroit, won; Nat Butler, Boston, second; Arthur Gardiver, Chicagu, third: A. C. Mertens, St. Paul, tourih. Time, 2:09 3-5. Two mile: a dicap—Dr. A. I Brown, Cleveland. won; H. R. Steenson. Davton, sec- onc; Nat Butler, Boston, thira; Wat<on Cole- man, Boston, fourth. Tim: 3435, ONE MORE FOR BALTIM.RE. Orioles Win With Ease the Third Game in the Series for the Temple Cup. BOSTON, Mass,, Oct. 6.—The last ball game of the season and the third in the Temple cup series was as du.l aud uninteresting a contest as has been scen here for many & day. The Baltimores won with ridiculous ease, and closed their engagement here by practically exhausting the pitching talent of the Boston nine. In the three games all four of the new cham- pions’ crack twirlers have taken their turn in recefving the severest kind of pounding, and for the third successive game the home team was obliged to makea change beiore the game wasover. A slight shower, however, came up just as the Bostons were ending their half, and the game was called, tue score reverting to the seventh and cutting off four runs and five hits for the visiiors. Score: FALTIMORES. AB. B B PO Mctraw, 3b. E Keeler. r. Jeonings, 8's. Kellev. 1. 1. Stenzel. . Dov.e, 1 v, Reitz, Clarke, c. . Hoffer, p 1 3 3 | e me | cumomuoer | mccecorcet momccwee? gl crrrccrc ey | meccccemen? ol memrmoe My Totals. 9 2 B P = 2 [ 1€g 0 0 3 o 3 2 [ T i 0 1 2 o o5 X 1 " .. 01 1 Lewis p v 0 0 o Klobedanz. SRe0s X Vg 3 10 u1 10 2 ex1¥Gs. Baltimores. 0 44000 0-8 Bestons, 0035000 0-3 SUMMARY. Earned runs—Baltimore 2, Boston 2 Two-base bits—Mcuraw, Doyle Sto.en bases — leuney. Doy e Doubie pluys — Lone and Dufty.. First base on balis—Off Hoffer 4, 6ff Lewis3, off Kiove- daiz 4. Hit b pitched bali—By lLewis 1, by Kiobedanz 1, by Hoffer 1. 1ime of game—1 nour aud 55 minutes Umpires—Hurst aud Emsiie. At endance, 5000, e HARVARD'S WINNING STREAK. Her Men Continue to Score Victorres in the New Haven Tennis Tournament. NEW HAVEN, Coxx., Oct. 6.—Harvard men kept on winning games in the inter- coilegiate tennis tournament this morn- ing. The play consisted of a single match in the semi-finals of the doubles and sev- eral in the third round of the singles. In the douoles Ward and Davis of Har- vard easily defeated Noyes and Hackett of Yale and the score stood 6—2, 6—4. In the singles Richard Hooker of Yale won from D. H. Fuller of Cornell, 6—3, 8—6. L. E. Ware and M. D. Whitman, Har- vard's stronzest plavers, came logether and Whitman won, 6—3, 6—3. Whitman took the championship in the singles at last year’s tournament. Tbe match between G. B. Dodge of Yale and Joseph D. Forbes of Harvard proved the hardest fought of the tournament, | Forbes winning in 10—8, 59, 6—2. Do ge mude a stubbora fight, but went to pieces in the last ret. Hooker is the only Yale man now left in the tournament. O one mateh was played this after- noon, Whitman and Ware meeting Hooker ana Dodge in the sem:-final doubles. The Yale men were the last representatives of that college leit in the doubies zna they lought well the first set, but were com- pletely outclassed in the second. The One mile, selling— Albert S 104 (Thor:e), 8 to 1 01 ~sugus 1U5 (Hirsch), 5to James Mouroe 99 (Hewlit), 5 101, *Rey del Tierra 102.W B 11 ober: Bonner 94, Waterman 97 an: *Favorite. Time. 1 Dalgretu 97 Rossiter 95 also rai. About seven forlongs Kinuikinnie 114 (W. Martin), 7 to 5.. + indoozet 100 (Thorpe), 6 10 1. . *J. A. Gray )65 Time, 1:243;. Oricl nd 100, Alice Fariey 109 and surnap 1u0 al:or.n. *Favorite. One and a sixteenth miies. bandicap— *Buckw. 115 (W. Martin), 2 to 1. Lobengula 104 (Thorpe), 410 1. Miss Prim 93 (U'Counor). 15 to 1. -8 Time. 1:48. Ben Kder 126, Brandywine 08, Orion 110. Maune 110, Campanla 92 aud Our Jobuny 9% aisoran. *Favorite. 21 Five furlongs, selling— Nearest 100 (Maher), even... Gypceiver 108 (i borpe). 7 to 5. 3irs. Heeves 85 (0'Conuor), 10 o 1. 3 iime, 1:02%;. Festa 108 a's0 ran. *Favorite. | __One mite, selling— | *Manassas 103 (Hewitt), 1to0 2. 1 Passover 108 (Doggett) 6 10 1 hood serve out his time belore the appeal came to be acted upon. *We will petition the court to take up the maiter of appeal and aa- vance ii on the calendar, so as to have it settled.” jollification. Those who were present left for their homes as early as possible to avoid the congratulations of the crowd that was expected to invade the rooms. Be- fore ieaving for the day the acting secretary placed a to let sign in the window of the apartments the board bas occupied since it was ejected. Supervisor Biggy of the “new'” board received a telephone message last night which set him to wondering what the next move in the supervisorial game would de. The message was to the effect that the new board, which the decision of the Supreme Court rendered invalid, would bave a meeting early in the evening in the Mayor's office, Mr, Bigey hastened to obey the summons. When he arrived at the place gesignated for the meeting he discovered that he had been made the victim of some Belle of Kiliarney 88 (Jee) 15101 Time, 1:42%a. Astzal 107, Hi Daddy 95 and Dr. Jim 8 also ran. *Favorite. CHICAGO, IiL.. Oct. 6 —Favorites, with a single exception, swept everything be- fore them, Travis beiug the only one to meet with defeat. Tommy Burns rode three of the winning horses. six forlones, selling— Loyalet's 10< (J. Woods), 8to L. Fo feii 102 (Reltz), 12 to i joker, for the Mayor bad vot authorized any meeting. Several other members of the new board had reccived messages to the same effect, but they were communicated with by the Mayor, whe explained the matter tothem and prevented them from being bave threatened to re ign, but I hope that in the interests of good gov- ernment and the pubiic they will keep their seats and aid us in carrying on the busin of the board. “1 do not expect any radical changes. A few of those who have been partisans in the cause of tie Budd-Phelan boara may be removed, but otherwise there will be nothing done as far as I know,” o piaced upon them in the 11 the State which adopts them. in Marks’ Appeel, 45 Cal., 199, which was a special proceeding such as this, 1o re- move an officer for misconduct, it was held that an_appeai would lie. i tnat case the act stself provided for an appeai, while now the right of appealis conferred by sections 52 and of the Coae of Civii Procequre. 5. What may be the effect of the Covarrubiss vx. Supervisors, 52 Cal., 6 moved irom office b: tes from which they are takexn will be followea by the courts sppeal ma case such as this is fully answered in 2. Covarrubias, Sheriff of the county, had beew re- procedure. Upon the day of the entry of the judgment viug @ vACANCY 0 exist in the office, were ubiis made application to the Subreme Court for & writ of prohi- ¢ had an appeal from ihe judgment of the trisl court, and that the “ipse facto cperaiei asupersedeas.” Wacther, theu, the judgment d & seli-executing judgment of not, the appeal is equully seii-exe- T 10 his rights of office until 11s final determination. Nor coald :d proved, ibat the new voard was appointed and qualified and met judgment was entered and the appeal iaken, affcct in any way the about to fill it, when Cov bition. It wes heia that appeal when well taken, in such & case be conside cuting and restores the offi the facts, if they be deemasd and organized before the legal situstion. The case isnot that of an officer who after judgment retires from his office and leaves it 10 s appo.nted successor, who clothed with the ins gois and surrounded by the iudicia of office acis in un official capacity. Thereafter, if the ousted officer, who had thus vo natarily Tetired, should endeavor in mandamus to assert a legal titie against oue who was clearly do iaco, ihe court, as has been said, wouid in such a procee {ing go 1o further thanto determine that the office was full de facto. But in this case there was never any voluntary surrender or withdrawal upon the part of the oid board. It maintained its right to aci, and continued 10 aciasa Foard of Supervisors duriugall thetime. Soaiso, it is trne, did the new bosrd, but there cannot be at one and the same time two de facto officars any more tnan there can be two ge cficers. The case is one Where two contending boards are simuitaueously sciing and claiming ihe rignt to act. In such a case ii is sometimes snid tha the Ll.e to the office de jure draws 10 it the possession de iacto. (Shorti, maucamus, 337. 338.) This, however, is bat & concise exp: ou (Leeds vs. Ar City, 52 N. J. L, 332) ot the rule that in m~udamus, where conflicting boards or officars are aciing simultaucous.y,each under s claim of +ight. Since there cannot be two de facto boards or officers, that one aione Wiil be recognizea s the de facto board o: officer which js acting at the time under the better apuarent fezal right, (Braidy vs. Therit, 17 Kan., 468; Hamiin vs. Kassofer, 15 Or., 436; State vs. Draper, 48 Mo., 213 ¥s. Johason, 35 Fia., 2 J. L., ! the judgment of removal the old board was the unquestioned de jure and de frcto body. Upcn the day of the eniry of the judgment 2n appes: irom it was periected. The members of the old board never ahandoned theis offices, bur alWATE acted fr claimed the right to act. Even if it b2 sald ihat ihe judgmen: was self-executing sud :hat a vacancy existed by operation of law aud without procss of the court upon the entry of judgment, it must necessarily fol.ow under the decision in the Covarrubias case that it existed onty uniil &0 appesl from the judgment was periccted, and that this sppeai restored ihe incumupent to hus rights ol office until final deierminztion of the controversy, and that, therefore, the better present, apparent, legal right 1s wiih the old board. 6. Toe tinsl contention of the respondent the matter is that the levy of the old board is illegal and invedid because it lacks the signature of the Mayor of the city and county of San Francisco. Thatsigns:ure was not made necessary by any other law (Truman vs. Board of Supervisors, 110 Cal. 12 butin terms is required by the ‘rmvwnm Of an acto! the Legis- lature of 1897, entitied “An sCt to require ordinances and resoiutions pussed by the Lity Couucil, or otoer legisiative body of auy municipality, to be presented to yor or other chief executive officer of such municipaiity for Lis approval.” (Stats. of 1897, p. 190). But before the passage of this act it had Leen believed by the Logisiature and by the people thet it would be wiser to relieve the chacters of cities from the operaiion of zeneral legis.a- tive iaws affecting municipal affairs, lest otherwise there wour; be dauger of the charter provisions being enurely “rittered away.” In eccordance with this belief an amendment to ihe comstituiion was sdupted in 1895 (Stats. of 1895, p. 450), providing that “cities and towns heretoiore or hereafter organized, sid ail chariers tierevt tramed or adopted by authority of is convention, exeept in municipel afairs, shail be subject to and co:troiled by geueral ; Lawrence vs. Hanley, 54 Micn., 390; Leeds vs. Ausantic | NEBRASKA WOMEN T0 'NEW LAND OF GOLD IN THE F4R NORTH BYCOTT A CHORCH Scheme of Methodist Ladies to Enforce Recognition for a Recently Found of Their Rights. El Dorado. Wili Not Shoulder Further Burdens Untll the Vexed Question is Settled. ; It Is Across the Mountains Fifty Miles Southeast of the Kiondike. Special Dispatch to THE CALL. LINCOLN, Nese, Uct. 6.—The women membe:s of the Methodist church in Ne- braska are about to inaugurate a boycott, inorder to enforce the church government to recognize the rights of women in the church. At present the movement is con- fined to the members of tue Methodist de nomination in the State, but the ideais | meeting with such favor by the ladies of | otier denominations that it will proba- bly be adopted by others before the sub- ject is disposed of. The idea originated with Mrs. Caroline H. Woodward of this city. The lady has been an earnest worker in the Methodist churen for a long timeand bas been active in attempting to secure her sex proper representation in theaffairs of the chureh. Now she think- ther should adopt more vigorous methods to demonstrate the claims of the female members of the church. The plan she advocates is that the ladies stop accepting any positions of responsibility in tbe church and retuse to enczage officially in the chiurch affairs un- Speeial Dispatch to THE CALL LOS ANGELES, CaL., Oct. 6.—Notwithe standing that each arriving steamer from Alsska brings tales of the hardsbips and distress endured by the prospeciors along tne Yukon, another party of adventurers has just left this city, and others are pre- paring to leave soon, their destination being a newly discovered mining region filty miles southeast of Klondike, and separated from that jamous country by the Rocky Mountain range. The first news received in this city of the new fields came several weeks ago in the form of a leiter addressed to W. H. Fugard, a_Randsburg miner, by George Tolman. The writer says: “Unless you are positive that your mine at Randsburg will yield you a larger for- tune than you can handle, get together a iew men and jo'n me immediately, There are big fortunes here.” Fugard and eignt otvers, employes of the Los Angeles Railway Company, left on Monday evenming for Ban chiteo. | laws.” The amendient is found in tue nalicized words. The 8ct of 1897 nuquestionably witn & :aunicipal affair, the mole end manner of the passage of ordinsucss and resolu- tious provided for in th- charier. Under this constitutional amendment such scts now apoly only 10 cities and 1o their charters which have orgenized under the general scheme embraced in the municipal corporation act. (Stets ot 1853, 1. 93.) San Francisco is notone of such cities and the act of 1897 hes, therefore, no appiication to it For ine forezoing reasons s peremplory writ of mandute should issue as prayed for, and it is ordered accordingly. HENSHAW, J. We coneur: BEATTY.C.J. VAN FLEET, J. HARRISON, J. MCFARLAND, I TEMPLE, J. Concurring Opinion. Section 1 of the act of the Legislature found in the statutes of 1881, which de ith fixing of water raies, casts a duty upon the Board of Superyisors of the city snd eo.;;t': of g‘n From there they will go by steamer to Vancouver, thence bv the Canadian Pa- cific to Edmonton. They go thence by siage to Fort Calgary. The trip from this point will be made entirely by dog-sleds. Anotter party will leave next Monday, and will join the advance party at Ed- monton. til the long-azitated question is settied. In view of the fact that the proportion of female members of the church to the maie members is about the ratio of five to one, the plan, of course, would seriously cripple the church, and if adopted zener- ally will force a very early settiement of the dispuees. No definite plan of action has yet been agreed upon. The ministersof the church in the Siate do not appear very much alarmed, asserting that the women of the church love the work too well to volun- tarily resign their part in the affairs of the denomination. LA B R Neal Dow Memoriai Services. CHICAGO, Irw, Oct. 6.—The geveral officers of the National Women's Temper- ance Union have requested all the local unions to ho!d m- morial services for the late General Neal Dow, | 7 ar . H. Wheian 10% (Donaldson z Time, 1:143; A1 Lone 10, Gallante 107, Sen. ator Quay 10o, Eisie D 107. Warren Point 107, *Travis 112 and senator Morrell 112 aiso rac. *Favoriie. Five furiongs. selling— *Daliy Racing Form 97 (Gray), even. Rus<in 104 (T. Burns). 7to 5 Lottie Burns 94 (Donaidson), 20to 1. Time, 1:0ils ~i-sie Chance 94, Bativerso 97, Halsmouui 97, Judge Napion 99, Juy Bird 99 aud M. Ciarkston 100 aiso raa. *Favorite. One mile— *Meadowthorpe 103 (Burns), 1t0 2 Dr. Sueppard 103 (Cayweod). 2 to Moriecai 84 (Weaver), 20 to 1 Time, 1:41. Frauby 109 aiso Five furlongs— *Abuse 112 (T. Burns), even. *May W 104 (R. Narvaez). evi Goilghily 104 (A. Barreit). 4101 . Time, 1:00. " Sugarfooi 104 and Cheniiie 104 also ran. *kqual choices. Owners' handicap, one mile and seventy yards— Buck Messie 80 (T. Buras), 310 5. The Swain 78 (J. Word.), 5 10 2. Davia Tenny 84 (W. Doisey), 3 (0 o Time, 1:4413. Three stariers. Six furlon<s, selling— *W O 7103 ( verei:), 7 105 ~ea Robber 107 (I. Burns). 360 1. Uncss 143 (Cayw. 0d), 610 1, x Time, }:14 Touy Henig 95, Vitrola 6, Digzs 99, Lizzie Mles 163, ~ilver Se: 104 aud Piomeria 105 aso ran. *Favorite. WINNERS AT SaN JOSE, Oneko Mald the Ounly Uutsider to Earn Brackets. SAN JOSE, CaLn., Oct. 6.—Four races were decided at the county fair to-day. | The talent retrieved its losses of ve-ter- day, making but one mistake. Oneka Maid, a lonz shot, won ine five furlonz dash. There were five heats in the 2:40 trot, Etta Wilkes winning. Fanadma tcok two heats. In the 2:20 pace Fiora- cita took the first heat ana then Fiiz Lee won the next three. Trotting, 2:40 class, Etta Wilkes won, Fan. ;dfil second, Ned Thorp third. Best time, ‘Pacing, 2:20 class, Fitz Lee won, Floracita second, Lvnet: third. Best t'me, 21417 Runzing. five furiones, Oneko Msid won, D‘(‘)“; of York II second, Ercica third. Time, 1:023¢ llnxmh‘ll. about six furlongs, Mss-ero won, Meudow Lark second, Mollie R inird. Time, 143 D e -WHEELME> AT PEORIA. Fine Sport om the Upening Day of the Fall Meeting. PEORIA, Irw, Oct. 6.—The first day of the Peoria Bicycls Club's fall meeting was & success as regards weather, atiendance and sport. Tae circuit chasers were rid- ing in great form acd some fine work was done by the amateurs. Quarter of a mile, open—Arthur Gardiner, Chucago, won; Harry Marsh, Chicago, second ; 1| the same weight, but to weigh in at the 3! - char vard beat Hooker and Dodge of Yale, 6—4, 6—2. g CEEEDON AND JecCOY MAICRED Hones: John Kelly Will Bring Uf the Fight in Canada. NEW YORK, N. Y., Oct. 6.—Dan Cree- don and Kid McCoy met to-night and | signed articles for a finish fight to take | place between December 15 and December | 30, and *“Honest Jonn Kelly,” on behaif | of the Canadian Athletic Club, zot the at- | traction with an cffer of $7500. | There was a misunaerstanding as to the | weight, Creedon wanting to fight at 158 | pounds ana weigh in ut 2 o’ciock the day of the fight, and McCoy warting to make ringside. | They finally agreed to fizht at catch- weights. Three sets of articles were drawn {up. McCoy and Creedon signed them, | and tben the bidding began. W. A. Brady offered $10,000, and agreed to bring the fight off in Nevada next April; two San Francisco ciubs made offers on a percentage basis; Louis Houseman of Chicago was willing to give $3000. and then John Kelly put in a bi. oi $7500, agreeing to bring off the fight in Canata and within $600 miles of New York. His | | | | | | J { the first week’s production of “*A Lady of | offer was accepted. He put up $2000 to | $1000 from each of the principals as forfeit | money, and will ndme the ds'e and place | within the next ten days. Creedon and | McCoy will make a side bet of $5000. RO R ZIMMERMAN 10 RACE AGAIN. Will Make His Eeappearance in Paris Next March. NEW YORK, N. Y., Oct. 6.—Arthur | Zimmerman, who defeatea the fastest cyclists in America, Europe and Australia during the seasons of 1892, 1893 and 1894, has decided to enter competition events again, and beileves he will beable to make the fastest men of the present day exert themselves to the utmost todefeat him. “Zimmy’' will not make his reappear- | ance in this country, but signed a con- tract to-day with the manaczement of the new Princess track in Paris to ride in com- petition races and record trials from March 1 to September 30, 1898. The French fairly idolize Z mmerman since his memorable trip to their country when he defeated ali European champions with almost incredibie ease. His sports manfike behavior enfeared him to al riders, as well as to the general public, and the estimation he is held in tuere is shown by the fact that & prominent cy- | cling event of the year is called the Prix | Zimmerman. —_— FAN HEEMI KNUCKED OUT, Put to Sleep in El v-n Rounds by Oscar Gardner. LEXINGTON, Ky, Oct. 6.—Oscar Gard- ner knocked out Johnny Van Heest in the | eleventh round of what was to have been atwenty-round fghbt at 120 pounds before the Navarre Athletic Club tiere to-night. The eleventh round was but a minute, “vhen the knock-ont biow, a right swing on the jaw was delivered. pEE RS D) Feeults of Freeno's Reecss. FRESNO, CaL., Oct. 6 —The attendance at the races to-day was good and the racing first class. Five furlongs, two-year-olds, Kylee won, St. Caiatine second, Queen May tuird. Time, 1:04. Five furlongs,” Roadwarmer wou, Polish sec- ond, Kitty Brady third. Time, 1:03. Six iurlongs, M:jorS won, G-boetti F ibbet second, Minta Oweir toird. ‘iime, 1:17. Six furlongs, selling, Lena won. Howard second, Emma D third Time, 1:15}{ CRESPUO Da>GrRUUSLE ILL, Alarming Condition of (he President of Vimezuela. NEW YORK. N. Y., Oct. 6—A special from Caracas, Veaezuela, to the Herald says: President Joaquiu Crespo is aan- gerously ill, and grave TS are telt ‘or his recovery. His condition is so serions that Vice-President Senor Alvarez is tem- porarily acting as President of tne Ro- public, FIERGR FIRE I TEE HEAR? OF DRTROIT Breaks Out on the Stage of the Opera-House After Midnight. ) The Structure Consumed, Together With Other Large Buildings and ‘Their Contents. DETROIT, Micu., Oct. 7.—The center of Detroit was the scene at 1 o’clock this morning of a conflagration which totally destroyed three large buildings and con- tents, damaged several others and threat- ened destruction of at least an entire block of the most valuable propertyin the city. The b'aze originated on the stage of the Detroit Qoera-house. Simultaneous'y with the breaking out of the fire there were several loud explosions, presumably the bursting of stage lighting apparatus. The flames quickly enveloped the rear of tie theater and made a furnace of the interior. The opera-house, with all its contents, inciuding the handsome scenery, COS- tumes and equipment of the Julia Arihur company, were destroyed in short order. The rear of ten-story builaing occu= pied by the H. Leonard Furniture Com- pany was next ablaze, and nothing of the structure or contents remains but the steel frame, The four-story building cf the Mitchell Table Supply Company, east of the thea- ter, was gutted and partially destroyed and several other] buildings were slightly azmaged. At 2:30 the fire had besn confined prac- tically to the above baildings. The losses have not yet been approximated, but it is believel they will reach to the vicinity of $250 000. All the new scenery and costumes of the ulia Arthur Company, which was playing Quality,” were destroyed. Manager Lewis of the company sayvs its loss is $20,000, insured for nalf, and that the stage settings will bed:fficalt to reproduce. A block of tenement houses at the foot of Hastings street caught fire from sparks from the opera-house fire and were de- stroyed. —— OELRICHS’ CASHIER DEFAULTS. Will Be Arrested on His Return From His Vacation Trip to Europe. NEW YORK, N. Y., Oct. 6.—Detectives will board the Iloyd steamer Barbarossa to-morrow on her arrival! from Germany to arrest Cart Faber, the defaulting cashier of Herman OQOelrichs & Co., whose veculations foot up from $10,000 to $30,000. Faber had been away on a four weeks' vacation and the shortage was discovered during his absence. A bench warrant has been issued by Judge Cowing, charging grand larceny. He had charge of the financial division of the importing depart- ment of the firm = UNABLE 10 F0OOL THEIR INSUES. No Compromise Betwoen the Union Pa- cific and Oregon Short Line. CHICAGO, IrL., Oct. 6.—Officiai notice has been given by the Union Pacitic to its connectionsin the city that the negotia- tions between ihatroad and the Oregon Short Line have been brought to a con- clusion without any of the matiers'jn ¢is~ pute being settled. There was areport some days ago that the trouble had been aajusted, but the notice sent out by the Union Pacific settles that matter conclu- sively. The Union Pacific absolutely re- fuses to cousider a proposition which em- braces as a partof it the allowance to the Oregoa: Short Line of greater proportions than the established ones to all its con- nections and ail the other roads in the countr KEW TO-DAY. $10 All wool cassimeres, cheviots and clay ! worsteds An air of respect- ability about them New fall styles, the right sort. Wear well and keep their shape. Single or double breasted. Pockets right, buttons sewed on to stay. Buy of the maker. BLUE signs, 2d block from Market. BROWN BROS. & €0, - S 121-123 SANSOME ST. =4 CARRIAGE Ubholstered. Stee' Wheels. Bsst Va ue In the Clty. CONVE AND SEE THEM. WAKEFIELD RATTAN C ‘125 GEARY STR.ET. RUPTURE U-E NO MURE IRON S7> Hcops or Steei Nprings. Ruptare reaiud with ease \ ? i _ A comfor;, and TiH - SANDS rudicaliy CUR: DDII:y DR PIER(E'S Celesrated Mag- neuic Elasi. Tross. ggo: office = Ocwrite for New Pamph et o} Adaress M LGS ETIC ELA TIC TRUSS .. 704 Sicramento s'., or o 0 Market si., Sam