The San Francisco Call. Newspaper, July 1, 1902, Page 3

THE SAN FRANCISCO CAILL, TUESDAY, JULY T 1902. JUDGE CARROLL COOK HEARS ARGUMENTS AS TO LEGAL RESIDENCE OF GOVERNOR GAGE AND JURISDICTION OF SAN PEDRO MAGISTRAT Attempts Made to Block Habeas Corpus Proceedings Are Defeated and Court Takes Question Under Advisement Attorney for Chief Executive Pleads That Call, Regarding Libel Suit, Is Pub- lished Only in Los Angeles County CDGE CARROLL COOK ryesterday | Governor Gage, had attempted to demur heard procee Spreckels corpus Johs and er 10 the \» Peace Down- San Pedro, Los Angeles sit ag a committing in the criminal libel . c Henry T. Governor ‘he proprietor and manager phell, E were present to rep- i e habeas cor- 1t District Attor- the peopla, represented by and W. W. Foote. asertions on the rneys that an bel suits is end W. nd Attorney Moore in order to further get the case tried in v making it as inconve- for all parties con- Moore showed &n absolute in the arguments made e habeas corpus proceed- vored to make out that es of the libel suit published only e sake of a cheap employer the attorney plea in his argument, the right to bring the h argue at length that no formal surrender of and Leake by their at in consequence they their 1 PROPERLY SURRENDERED. dge Car Cook «more than once in- Xr::;ln‘\vd Moore that he had heard enough of his srguments on certain points, and i t ernogn flatly toid Gage's attor- Cook, was satisfied ) the libel suits had srrendered by their bonds- T lice Wittman and @ 3 dgt hat the @ | been proper! men to Chief of they we: egal ¢ stody. Moore jsted that the defendants should h been turned over _to the to & writ of habeas corpus, : was emphatic. on behalf of Messrs. ke, did not take more s to present his argu- He clearly presented facts and argued that the Jus- he Peace at San Pedro had no sn the criminal libel suits for gal residence of Sacramento. Camp- read from the by ge, wherein the ess and seeker for vin- time of the the sections of ical Code of t in_ crim- :e might be brought ither at the aper is published he complaining e Pol Call is pub- he weak at- s attorney to published ir er f1. Cam bell age Attorney of Governor was ab con- wed the ras ter and that .he where the Capitol hed, Attorney n Gage went laint in criminal proc d Leake ! al stand- ¥ mmitting magistrate. of the Peace at San isdiction to hear evi- offense charged his county, the issuance of 2 warrant for the arrest of Messrs. Spreckels and Leake was illegal. ampbell demolished the claim " Gage's lawyer that Judge Cook. uld not decide the question of the J: fetion of e Jus the Peace of Ban Pedro b; g8, empbell quoted a_section of the Polit- Code which distinctly states ere the process is proper in form but court has no jurisdiction, & writ of as corpus will prevail.” udge Carroll Cook @id not allow the torneys for Gage to take u y valuable time In Teplying Campbell’'s argument. to go all the torney over ce of Governor Gage. As y says that the Governor re- ved & setback, ibsided after say that he was wiling to submit the case the statutes. Cook _informed the attorneys sout to leave for a vaca- t he desired counsel for both h him with a list of author- Judge Cook _stated his decision to this city y s possible. Despite the *efforts of Gage at- torney to pre Judge Cook deciding the questior the jurisdiction of the r of the Peace in the , that matter is now rist. ‘A similar attempt to Cook from deciding where nce of Governor Gage is a4 _speedi LEGAL QUESTIONS risdiction of Libel Suits Rests on Governor's Residence. arguments on the habeas corpus roceedings were heard by Judge Carroll 0ok &t morning and afternoon sessions court yesterday. Attorney Moore, on behalf of Preston ! beas corpus proceed- | gally restrained of | s Angeles County bétore they | . Spreck-{ vesterday | | | | | | be tried in the county where such news- | aint or any the arguments of -ounsel in | to the petition for the writ of habeas ings | corpus and was informed that it was too late to do so, he was requested to make his arguments on the questions raised by the petitioners in the w Attorney Moore in part said: V“There are two petitions here, if yvour Honor please—there are two proceeding they are precisely the same, so that, so HE.NR7 \ ® THE COMPLAINT SAID AND T GAGE, WHo WwAsS 1z 5 GOoOVERNMOR. oF TH OF CALLFORMIA ~ E S, “THAT HE HIMSELF NoT ©ONL. 1S A~ LawBsRE AeR BOT LA DXS-OBE7E_R..' THE CHIEF EXECUTIVE GOoES UPAN RECORD, = far as I see, they may be simply argued | together. They are alike, word for word | and line for line. The petition in this case is addressed to the Hon. Frank J. Murasky, and sets up that Mr. Leake is restrained of his liberty by George W. Wittman, Chief of Police of the city and county of San Francisco, at his office in the Hall of Justice in the city and county of San Francisco, State of California. “That the said restraint is illegal and that the fllegality thereof consists in this, | to wit: That heretofore, to it, on lhfi} 14th day of June, A. D. 1902, Henry Gage did appear before Henry C. Dow ing. a Justice of the Peace of Wilming- | ton Township, County of Los Angeles, State of California, and make complaint and depose under oath, charging this pe- | itioner with having committed the pub lic offense of libel, and did file a com- plaint with said Justice of the Peace, | and the said complaint and deposition un- der oath of said Henry T. Gage so filed with said Justice of the Peace.” READS PETITION FOR WRIT. Attorney Moore then read the petition | for writs of habeas corpus, and continu- ing_said: “Your Honor can see that so far as we have proceeded the discussion here sur- rounds and has reference to that section | of the State constitution which provides | that any libel charged to have been com- mitted by publication in newspapers shall sapers have their publication office, or 1 the county where the party alleged to se libeled resided at the time of the al- leged publication. And the whole con-| tention of the gentlemen on the other side | is that the Political Code requiring the Governor to reside in Sacramento makes | that his residence, non constat that he | did at the time of the libel reside in the county of Los Angeles. It was the In- tention of the constitution framers that ‘he party who had been charged to be idbeled should have his election as to where the hear'ng should be had. NO SURRENDER WAS MADE. i the first point that there has ‘meln ':gl::\rrander of these suspected ge! lemen. No surrender such as would per 1nit the writ of habeas corpus to perform its function. The Chief of ‘Police never (id have any custody of these men at all. 1’ever had any inspection of any com- warrant or anything else, 21d he has none now, except such as is row apparent on the face of these pro- coedings. 1 am now making the point that these men were never surrendered. A sur- render is never complete until the accused has gone back to the custody of the law. The %ondsmen may surrender him at any time before the forfeiture of the under- taking, or he may surrender himself to the officer to whose custody he was com- mitted at the time of giving bail. There is nothing here to show that the officer he should be surrendered to was the Chief of Police; to the contrary it does appear that the officer to whom he should be surren- dered was the Sheriff of Los Angeles. ‘When one wants to surrender himself, or his bondsmen want to surrender him, they must put him where he was. He was in the actual custody of the Sheriff of Los Angeles County, and the policy of the law is and ever has been that when he desires to surrender, or his bondsmen want to surrender him, he must be put back whera he was; and that is what this section means. We have the curious and anoma- jous situation here now of bail given here, under provisions of the code clean-cut and explicit; the warrant’ has been returned and filed in Los Angeles County; and we have the curious condition against the provision of the law that the prisoner must go back to the custody of the law, of the bondsmen wending their way down Market street to the office of the Chief of Police, who had absolutely nothing to do Wwith the matter, and their saying to him: “I surrender to you this man, and I re- quire that you arrest him.” A certified copy of the undertaking must be given to the officer. ““This attem: surrender upon mat- | Los Angeles. pted ters and proceedings in ILos Angeles County cannot be effectual. Your %mfl Tequires but a moment’s reflection that there are requisiies of the code are entirely necessary to be ol = wkich make it neces: that the render be to the Sherf® of Los Enunty. ‘There is a tractural between the accused afpd his bail one hand, and his bail the the other, and it is that that man will be in court when his case is called. These bondsmen never have been exon- erated, and the accused are still in the| custody of their bondsmen.” After quoting many decisions continued: DEFENDS GAGE'S COMPLAINT. “I come now, if your Honor please, to the discussion of the other point—that is that the petition is insufficient. This writ must be discharged. Your Honor notices that the point of attack lies simply and solely upon the averment in this petition for discharge that the accused were publishing a paper in_the city and county of San Francisco, which was the one charged to have circulated the libel; and that Henry T. Gage re- sided in the county of Sacramento. It ap. pears from the petition: First=That the accused was held by the Sheriff of Los | Angeles County, and gave bail; and, sec- ondly, that the bondsm®n ne rendered him, and have mot L tempted surrender placed themselves in a position where the writ will lie. The writ will not lie because it does not ap- pear by the face of the petition or return or both that Gage is not a resident of A certain newspaper was published in San Francisco; Gage made complaint in Los Angeles County, charg- ing the defendants with printing in San Francisco and publishing in Los Angeles a libel. The complaint charges that Gage was a resident of Los Angeles County. That is a perfect complaing, a warrant was issued on that complaint, and the defendants arrested and gave bail. It appears in the averments of the petition here that Gage resided in Sacramento. There is Gage's complaint showing full Jjurisdiction, with the denial of Spreckely and Leake. It regularly on its fac charges a crime, and venue properly laid, with denial by defendant that venue is not proper. This is a case of venue on which the writ will lie—it is & mere mat- ter of venue, As well as if Mr, Spreck. els and Mr. Leake mlg:lt raise the point that they should not compelled to go to the court where charged, the process perfectly regular on {ts face, because making a denial of one of the material facts necessary to the jurisdiction or to establish their guilt, to wit, that it was not the proper county. “It follows, thefi that, with equal force, they could apply for a writ upon a peti- tion stating that the illegality consisted in that the defendant was not guilty. If they can do it for one of the things con- signed by law which the court issuing the warrant has as one of the facts to_be de- termined as establishing its jurisdiction, they can do it as to any one of them. I1f they can do what they are doing here, then in a case where one is charged in Alameda County with murdering a man in Alameda County, with every proper le- gal averment, habeas corpus would lle vpon his petition, saying that he mur- dered the man in San Franecisco. And there is no difference as to an examining magistrate in that regard. n other words, this petition here simply attacks one of the jurisdictional facts of the complaint. TRIAL COURT MUST DECIDE. “If Los Angeles County was Gage's home that was the best place for him to file his complaint. On this peculiar alternative Jjurisdiction given b{ the section of the constitution im question it was necessary, it was jurisdictional. The hardship upon the accused, who does not even have to prove his innocence until a case is made out against him, amounts to nothing. The action lies there, a part of the venue. The prosecuting witness in this kind of a case must prove, before the accused is called upon to make any defense, that he was a resident of the county of Los An- geles., Again, the charge here that Gage resides in Bacramento is the oath of Sgreckels and Leake. They each swear that Gage is a resident of the county of Sacramento) though in the complaint in Los Angeles, which Gage swore to him- self, he says that he resided in Los An- geles for twenty-five years. In a case like this, or in any case where residence comes residence is a question of intention. Moore ‘would not be vold, even though the aver- ment of this petition should be true, to wit, that Gage resided in the county of Sacramento. Assume Sscra.medpto to be the proper county, and’ the judgment of conviction in Los Angeles County would not be vold. Unless the defect is pointed out by the complaint it is in fact but a voidable one.” Gage's attorney then quoted a number of decisions to uphold his contentions, and the court adjourned for recess. Moore’s closing address in the afternoon ston of court covered the same ground e over by him in the morning. CAMPBELL MAKXES REPLY. Attorney J. C. Campbell, for the petl- tioners in the habeas corpus proccedings, made his argument to the court in less than an hour. The attorney had all the points of the case well in hand and dealt only with legal matters. In part Attorney Campbell said: “If "your Honor please, on the thresh- old of what I have to say in<this matter I desire to say tb I do not intend to deviate from what deem to be the cor- rect method. of presenting it, nor do I in- tend to charge any one with bad faith or collusion, nor do 1 intend to refer in any manner to any of thie evidence in the case which may be in my possession or from which any inference can be drawn, leav- ing that line to bé determined by some tribunal which is lawfully entitled to do it under the laws of this State and has the full jurisdiction. “The only thing that I desire to do in my own way, feebly though it may be, is to endeavor to answer the objection which counsel have made in this pro- ceeding as a legal prcceeding; and it upd the threshold g0 seems to me that counsel have misconceived the le; term and legal method and legal objects to be obtained by writ of habeas corpus. A great deal that counsel has said to-day has nothing whatever to do with the facts that are before this court. It is simply and plain- ly a question of law, and as we deem it the law has been_ written fully, plainly and clearly upon the statutes o¥ our own State, as enunciated by the codes. “In the first place, if your Honor please, we have been examining to see what the law has sald in relatioh to th guxvflew and purpose of the writ of ha- eas corpus. Section 1473 says: ‘Every person unlawfully imprisoned or re- strained of his liberty under any pretense whalever may prosecute a writ of habeas corpus to inquire into the cause of such im)&flsomafntfl ort res;.r:lnt.‘ ‘“Now, the first point which the eminent ientlemnn upon’!n?;m:(hz!; side is that these people are not in re- straint, and that is made upon an objec- tion to the petition and to the return. The petition alleges in so many words that they are deprived and restrained of their liberty by the respondent in this writ; and setting forth the reasons why and the cause of that restraint, they ai- lege that it is by reason of a certain com- plaint which is' filed in the township. of ‘Wilmington, in the county of Los An- geles, by Henry T. Gage, and upon that complaint a warrant was issued: that they were arrested upon the warrant and gave bail; that their bondsmen theren: surrendered them and ordered and direct}: ed the respondent in the procedings to arrest and take them into custody until they should be dealt with ay ! g0y ccording *to CLEARLY DEFINES POINTS, “They also, upon the face o - tion, allege that certain thingy tictects that exhibit in effect are not true; -hat is, that the residenct of the proseeus e witness is erroneously stated in tha( document, and that he does resid~ in a county other and different. N, au is fmportant in this: Under sc W S\ 18 the Penal Code of this State—. 1 we might remark by way of parenthes.s that this officer who sits In San Pedro, in ‘Wilmington Tcwnsm‘r. does not preside Gver a court of record. He is simply and solely acting as a committing magistrate, and as a committing magistrate he has soiely and alone such powers as are sapprehended and given not ‘would take the just simple statement | him by the statutes of this State. rormati tradicted himself aWs State. of outside parties a.’s ‘to his residence | makes no difference who the oommlttu}; f,':.‘,,m,.fil“c{’,{{“ {;‘gy m fter s % 8‘0:‘75". his own statement, With the | magistrate may be, Whether he be the | that at all the times herein mentioned | EXPLAINS - d weakness that Gage Is a resident| Chief Justice of the Supreme Court of | Henry T. was a resident and for | “Now, there is a direct, falr, square mento, made by an outside party, | this State, whether ihe be a Superior | more flunmr:-flve years past has 'If his statement in the y a stranger, and made with the | Judge, or whether he be a Justice of the | resided and mow resides in the county of be taken as an l-“flfl&fi t -he that {t might enable him to avoid | Peace, when he sits as a committing mag- | Los Angeles, of Calife and t | so there on? ju t of t’mkmhoh'mflfl-wmonfi'mmuflm& 1902, and ' of { — 3 Emphatic Point Is* Scored by Represen- tatives of Petitioners That the Only Residence of Governor Is Sacramento Intimation Comes Frgm Bench That the Surrender of Accused by Their Bonds- men to the Chie f of Police Was Legal divers other times, and between the 2ith day of May, 1902, and the time of the filing of this comp! t in_said Wilmington Township, State of California, which said township is wholly without the corporate | limits of Los Angeles city, but within | said county and State, the crime of libel was then and there committed, as follows, to wit: Then: ‘And said Henry T. Gage, who was then and there, and who still is | THE AW 3a GoverNaoRr M KEEP HI1S OFFIce 1N TMe <cIT AND COURNTY oF SACRAMENTO &% THme STATE CAPITAL. | {1 | S THAT THs ST RESIDE AND ATTORNEY CAMPBELL MAKES VIGOROUS REPLY TO ARGUMENTS PUT FORWARD BY GAGE’S REPRESENTATIVE and authority under the law; he has no inherent powers; he Is simply governed, solely and alone, by the statute which permits him to sit as such, and as such magistrate he can only issue a warrant; he can only examine such proceedings as are triable within his county. Now, if this be a case which is triable within the county of Los Angeles, then that court had jurisdiction to issue the warrant; had jurisdiction of the subject matter. If it be not a case which is triable within that county, then he had not the jurisdiction to try that case or to examine this charge. “They allege in their petition that their bondsmen surrendered them and ordered and directed them to be arrested—in writ- ing—and_ that under and by virtue of such order and direction they were ar- rested by. respondent and were in his custody. His return shows that is the same and particular thing. Now, I ap-| prehend that it makes no difference to the court: it makes no difference to the law, upon what ground these gentlemen are’ restrained illegally, restrained of their liberty; if it be an illegal restraint, and if this person be the one who had the charge and custody of them at the time they were suing out this writ of habeas corpus, then it is incumbent upon the courts of this State to determine whether or not their imprisonment was illegal at that particular time. “They were helxbeby the officer under and by virtue of section 130L.” COURT IS SATISFIED. The Court—I suggest, Mr. Campbell, that you proceed to the second point mede by Mr. Moore. If I want to hear any more on the first point I will call your attention to it. he second point I want to hear from you on now. Mr. Campbell—Section 811, then, if your Honor please, of the Penal Code, reads follows: . ‘When an information is laid before commission of strate of the : ;‘Ifi’b ic offense, triable within the county, he must examine on oath ant or prosecutor, and any e emscs e may produce, and take thelr Jepositions in writing, and cause them to be subscribed by e parties ng them. The dl?o!ltlun must set forth the fact clearly. If the magistrate is satis- fied that the offense complained of has been committed, and there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest.” “Now, he only has, as I stated before, jurisdiction of the subject matter of any offense that is triable within his county. It is an admitted fact in this case that he is a Justice of the Peace of Los Angeles County. If this case be not triable in that county he has no jurisdiction of the sub- ject matter. TELLS WHERE GAGE LIVES. “Now, we go, if the court please, to the constitution for the purpose of learning and determining where a charge of this kind is triable. Section 9 of article 1 of the constitution provides as follows: — after that every citizen may freel wrllte and speak, etc.—Indictments found or In- formations laid for publications In n;W!; papers shall be tried in the countyuw tffn such newspapers have their publical tzv office, or in the county where the 9‘-"0»‘ gil.leg?f (odbe libl;’em'l‘ r:s_ided at the time e alleged publication. “Now‘uo A as the charge that we are examinfng now is concerned & which we ask your Honor to pass, e vor question then seems to be: Did tl ‘ldp s son alleged to have been libeled rtshl: o Los Angeles County at the time was alleged to have been libeled? i “Counsel say that because Wwe lmve charge or the informa before the committing magistrate in that — b the Governor of the State of California'— “Now, if your Honor please, we have but either one of two conclusions to draw from that statement. In the first place, we | have the direct and positive allegation of the petitioner, who swears to this peti- tion, that at the time of this alleged libel the person who claims to have been libel- ed was a resident of the county of Sacra- mento. We have also the direct allegation of the Governor himself that he was the Governor of the State of California, that he was acting—we draw the inference from that, and your Honor will take judi- cial notice of it—that as such he was act- ing as and performing the duties of Gov- crnor of the State of California. GOVERNOR BREAKS LAWS. ‘“Now, what are the inferences to be drawn from that statement? The law says, section 8§52 of the Political Code, that the Governor must reside, not that he must keep his office, but that he must re- side and keep his office in the eity and county of Sacramento, at the State capital. ““There we have one of two things, if your Honor please, to draw from this in- formation which was alleged in the county of Los Angeles: A person who al- leges' in one sentence that he is a resident of the, county of Los Angeles and further- more alleges that at the time of the pub- lication he was the Governor of the State, and further on alleges that it was against his integrity as a public official; that it was against his honor and integrity as a public official, that he was libel- ed. The inferemce, I say, to be drawn from that alone is that he was a resident at that time In the capital at Sacramento, hence when he says that he resides In Los Angeles we are either to believe that the chief execu- tlve of this State goes on record—he whose duty it is to see that every law is obeyed to the utmost jot and tittle—goes upon record that he himself not only is a law-breaker, but a law-disobeyer, and such an inference as that will not be drawn by any court in the absence of any testimony to sustain it to the fullest effect. “Then we say that at léust one allega- tion nullifies the other. But it is appar- ent at least, we say, from his own state- ‘ments in his own information which he lodged before this Jutitce of the Peace— one where he says he resides in Los An- eles, and the other which says that he s performing the duties of the office of Governor of the State of California— where he must reside and must keep his office at that place. RESIDES AT SACRAMENTO. «Assuming, though, that each one of these nullifies the other, we have the positive allegation, sworn to in this peti- tion, that he does reside and did reside at that time in Sacramento. “Now that raises after the return comes in—the return says nothing about that— and then we have alleged in answer to the return that the proceedings as are set up are such as the court had no jurisdic- tion to accept for the reason that the case was not tryable in the county, :K rea- son of the fact that the person alleged to have been a resident did not reside in that county. The jurisdiction can be in | but one of two counties. The right of this man to issue a warrant must depend solely and alones upon the residence of the person libeled, not his general resi- dence, but the place he resided at at the time of the publication of the libel. Now, he has—now he is an officer—he has as- | sumed the duties of his office, he is as- ufi:ed to know the law, and when he d office and when he took the oath of e that he did it accepting all of the provisions of the law, then and there de- claring that he would from that time, during the term of his office, beco; resident of the State capital. And It is the law—mot his intention, but the law county, notwithstanding the fact that the alegatlon in the petition is th&; he glld not so reside, that we are :O\ln by the 3 t your oath of the {nformant, ar a tha SRS 1t are to take that, if your Honor ease, low but two or three K‘ma: w: im?é‘m&“h?- ‘person wl;g laid the not has fixed his status as a resident duw that time. No difference what he & { determi. | as we contena, the issuance of this writ of habeas corpus. “Counsel spent a good deal of time this morning in calling your Honor's attention to several caSes whereby it was held that on a writ of habeas corpus we could not review a judgment. We admit it. Nor canx we set aside or make the writ of habeas corpus an instrument of appeal. We don’t contend for that. But, under the peculiar provisions of our law, under the provisions which govern the writs of habeas corpus and under the provisions which determine the procedure there- on—to say nothing about this court not being authorized to take testimony to ermine whether or nay a court has Jurisdiction to sit as a committing magis- trate—in fact, by the provision of the law, our Honor is given par- ity to review or determina committing magi has fully complied with lhegla.wgusx"a;inli Or"éhehsde axrlh:\_ualt' things. ubdivision 7 of section 1487, providin, grounds for discharge in Cerlaipn Eas&: re.q}llsr a‘s follows: t appears on the return of th writ that the prisoner Is in custody by virtue of process from any court of this State, or Judge or officer thereof, such prisoner may be discharged, in any of the following cases, subject to the restrictions lnu the last section: ‘Where a party has been committed on a criminal charge without reasonable or probable cause.’ CHALLENGES OPPONENTS. “Now, I ask counsel to answer and show me where the distinction is between that which we ask this court to do at this time and that which we would have the right to ask the court to do should the preliminary examination be held, should he have been bound over to an- swer? All then we could do would be to bring before this court—and it is done fre- quently; it is a matter of almost every- day experience, that the depositions or testimony which is taken down before the committing magistrate, is submitted to a Superior Court and submitted upon a writ of habeas corpus, for the purpose of al- lowing the Superior Court to review the judgment of a committing magistrate, and to then and there determine whether or not he acted within his powers or within the duty, or within that which is givenm him to do under the statute. Now, I contend, if your Honor please, in these particular proceedings, that your authority to take this testimony at this time is given under subdivision 4 of section 1487, which is: “When the process, though proper in form, has been issued in a case not allowed by law—when the process, though proper in form, has }7:5!1' issued in a case:' not allowed by “Now, we call your Honor's attention Lo a section in connection with that, sec- tion 1484 of the Penal Code: ‘The party brought before the court or Judge on the return of the writ ray Geny or c®nlra- vert any of the material 12cts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is en- titled to his discharge. *‘ “The ‘court or Judge must thereupon proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such porty as the justice of the case may require, and have full power and authority to re- quire and compel the attendance of wit- nesses by process of subpena and attach- ment, and to do and perform all other acts and things necessary to a full and f:h' Jhearing and determination of the case. QUOTES SUPREME COURT. “Now, if your Honor please, section 1484 has receivVed the attention of our own Supreme Court in_the case of exparte Cottrell in the Fifty-ninth California, commencing on page 420. That part which I read is from page 422: “‘If the return to a writ of habeas corpus shows upon its face that the party in whose behalf the writ issued is ‘llegally detained he must be discharged. But if it shows that he is legally de~ tained he must deny or contravert any of the material matters set forth in it and allege any fact to show that his de- tention is unlawful, or that he is en- titled to a discharge. In case he does so he may introduce evidence to prove any issue which he thus raises.’ “That is why I draw the distinction, if your Honor please, between the authori- ties which the counsel cited this morning In relation to those matters and where a case has never been tried, or in a case iike this, where the decision of the try- ing tribunal would be subject to a re- view upon the writ of habeas corpus. “Now, is it a fact upon which the juris- diction of this court depends—the court of Los Angeles—as to whether or nay the person alleged to have been libeled lived in Los Angeles County or resided in Los Angeles County at that time? If it is, and upon that t it must be determined, the jurisdiction of the court there has been no judicial determination of that, There has nothing, more or less, than an affidavit of the prosecutor that he does so reside thers, and at the same time stating facts which we contend, in a measure, to say the contradict that. ‘And opposed to the direct and positive statement of the person who sues Hut the writ that he does not live there. e'n Iano side the av.rd the jurisdiction to ane e O they deny it. That has never peen judicially detérmined. The process, assuming for :‘l;nkuko of argument, is valid on the face ‘““Then under subdivision 4, which I read to your Honor of section 1487, when the process is valid upon its face—when the process, though valid In form, has been Issued in a case not allowed by law. DEPENDS UPON FACTS. “Now, whether or not this ed in a case which is allowed b; issu a }::;n depends upon that fact. We hav{ ticular author: ‘whether or na scn alleged to have been libeled was not a resident of the county at the time of the libel, did not reside there, and he has S he right, if the process be in form, been ::suedshz a case not allowed by law. The constitution says that only t o tribnnatl an try cases of this Kind—c g ~he » & S cipal offices—that is, w' M} e prie cipal publication offices are . N otger where the person alleged to r fens libeled resides. If that be tru W ° have raised the issue under sec ‘on 1484— and the Supreme Court has ' q:' that aside a judgment. It is nct a judgment of a court of competent ju.‘sdiction. “There has been mo iribui i that has