The San Francisco Call. Newspaper, July 12, 1902, Page 5

'.I‘HE SAN FRANCISCO CALL, SATURDAY, JULY 12, 1902.- UNITED STATES SUPREME GOURT TO DEGIDE LEGALITY OF GAGE'S LIBEL olT ~ AND PROGEEDINGa AT SAN Case in Court of%THIGHEST COURT TO DE Judge Fritz Not Afiegtjd; Prohibition Writ Alone Bars a Trial. ES - men the defendant, exan h witness examined. | nced that Spreckels, wh 2 but not cro baraman then anr no other witnesses save Mar- The said Boardman had no aintance with the said Aguirre, and | ersed with nor obtained information of the subject | as affant is informed id Aguirre Boardman ch by agree- aid Boardman was granted 2. In continu- directed atten- nt, petitioner, , incorporated Boardman aforesaid, ng into the case isdiction should ® be determined COUNSEL PROTESTS. July, 1802, the .said d for examination at which time and affiant, through m for that pur- sted and objected i no jurisdiction examination upon reason of the n attached to the , and, second, for t the jurisdiction had been rported to have been ob- collusive and fraudulent combt the defend- with the the said charge or tried charge in the county of reupon defendant, el, requested to be amine the said Boardman ouching the said rge of fraudulent imposition upon h the said Boardman and through their counsel, ob- i examination, and the A. J. Fritz, then and at that time he would same. At the same time refused in open court whose behalf he acted, he counsel for defend- complete jurisdiction . , without the taking v, the said cause was rned to the following ock (July 2, 1902), at counsel for the de- said Boardman. The announced its decision diction of the cause, and same for further hearing to July at 10 o'clock a. m. elief affiant, Wednesday, 3 hibited by order of this the said defendants, the said Boardman will | art before the said ritz, and there, in an examination of the libel against the sald defend- reckels and Leake. ike to call your Honor’s atten- t all through this afii- s allude to the pro- dge Fritz as an exam- o L ‘mation and belief affiant a that said Boardman has no knowledge whatever of the subject mat- ter of the charges other than that ob- ough the instrumentali- | ndant. Defendants give to examine one s T the defense; and, lieves and so avers, it is the ts, unless S0 prohit- in their purported de- by that term “‘defend- Spreckels and Leake— bited, to proceed in their nse with immaterial and ent matter, relying upon the ig- of the said Boardman of all ma- facts in said cause to secure their e er affiant avers on his infor- i belief that, unless prohibited this honorable court, the de- by subpenas and process, a ant petitioner at the of San Francisco under his being a witness in keeping him from his home s great loss of time nec- his affairs. SAYS HE LIVES IN SOUTH. “Affiant’s residence for many years last DR. PIERCE’S REMEDIES. ATRIOTISM The stomach is a larger factor in "life, liberty and the pursnit of happiness” than most people are aware. Patriotism can withstand hunger but not dy: ia. The confirmed dys- peptic “is fit for strat e man who goes to the front for his coun with a weak stom: will be a weak soldier, and a fault finder. A stomach makes for good citi- zenship as well as for hezlth and happi- ness. Diseases of the stomach and other organs of diges- tion and nutrition are promptly and Eermmenfly cured v Pi ¢+ the use of Dr. ierce’s Golden Med- ical Discovery. It builds up the body with sound flesh and solid muscle. After 1 received the advice which you gave me in rd to my treatment.” writes Geo. Dormer, of 191 Pulaski Street, Baltimore, Mary 1 Solden Medical Discovery’ according to ircctions. After using four Dotties I considered called & witness in the employ of | | matter which the respondent is proceed- { | | | | | b | PEORD MUST AWAIT DEC CIDE THE LEGALITY OF GAGE’S SUIT HE legality of the criminal libel suit filed at San’Pedro by Governor Gage against the owner and the manager of The Call, and the question of the residence of the chief executive of California are now before the United States Supreme Court for decision. The attorneys for Messrs. S, preckels and Leake took steps yesterday to secure l the ruling of the highest court of the land on the two points mentioned above. When Superior Judge Carroll Cook gave his decision of Thursday on the habeas corpus | proceedings and denied the relicf demanded by Messrs. Spreckels and Leake, he remanded the defendants in the San Pedro libel suit to the custody of Chief of Police Witt- | man. The ortorneys for Messrs. Spreckels and Leake yesterday applied to the Supreme Court of California for a writ of habeas corpus. Chief Justice Beatty convened the court and the pro forma application was denicd. The next step taken was to apply to Judge Morrow of the United States Circuit Court for a writ of habeas corpus, the re- fusal by the Supreme Court of the State forming the foundation for_the application to the United States Circuit Court. Where an application for a writ of habeas corpus is denicd by the Supreme Court of the State and the Circuit Court is asked to issue a similar writ, the Circuit Court Jud. followed this precedent yesterday and denied the application of Messrs. Spreckels and Leake. The action of Tudge Morrozw opencd the way for an appeal tol the United States Supreme Court. | appeal and Judge Morrow granted the same. He issucd a citation and the San Pedro proceedings were passed up to the highest court in the countr entirely stopped as against Messrs. Spreckels and Leake under section 766 of the Revised Statutes of the United States until the Supreme Court at Washington shall render its decision. Judge Morrow fixed bonds inethe sum of $500 to cover the costs of the appeal to the Supreme Court and the same were furnished by Messrs. Spreckels and Leake. Bonds in the sum of $500 cach, to secure the release of the defendants from the custody of Chief of Police Wittman were approved by Superior Judge Dunne. The estoppel of the San Pedro proccedings by the appeal to the United States Circuit Court does not affect the suit filed before Police Judge Fritz or the arguments on the writ of prohibi- [ tion now before Superior Judge Sloss. In the event of Judge Sloss dismissing the writ of prohibition Police Judge Fritz'can proceed immediately with the hearing of evidence .| | unless Governor Gage appeals to the Supreme Court against an adverse decision on his writ to blo;k the wheels of justice before Judge Fritz. ges usually deny the application. Judge Morrow | | - The attorneys for Messrs. Spreckels and Leake asked for an . The San Pedro suit is past has been in the county of Los An- geles, in which county he is well known to many people. He has there vesided among his neighbors for more than twen- ty years continuous Upon the publi- cation of the libelous matter charged in his complaint in the Los Angeles court he elected to prosecute for the same in the county where his home was situate and where he lived and actually was at} the time of said publication. “Afflant and petitioner avers that such election was and is a matter of right, | of which he is sought to be deprived by the pretended jurisdiction in the Police Judge's court of the city and county of San Francisco, and further that the same | is matter. of public right to himself h‘i common with the people of the State or} California. | “Affiant petitioner avers that he is Lene- ficlally interested in the matters herein sei forth and in the matters herein com- plained of, and for the redress of the same he has no plain, speedy or adequate remedy in the ordinary course of law. “All averments herein contained con- cerning complaint against said defendants at the city and county of San Francisco, and proceedings in said court subsequent to the same, are made upon the infor- mation and belief of affiant petitioner. Wherefore affiant petitioner prays that, by the writ of prohibition, issued by and from this court, the said A. J. Fritz, re- spondent Policé Judge of the city and county of San Francisco, in the State of California, be prohibited from proceed- | ing on Wednesday, July 9, 1902, or at any time, with the or any examination .of the charge made by the said Boardman against the defendants Leake and Spreck- els, or taking any testimony therein, or entering any order of continuance there- in, or any order, either holding or charging the defendants, or either of them; and that pe be prohibited and re- strained from in‘any way Or manner en- tertaining jurisdiction of the said cause and matter.” The demurrer is upon these grounds: | First—That said pétition does not state facts sufficient to authorize the issuance c* the writ of prohibition prayed for herein. Second—That said petition fails to show | that the respondent herein, the Police Court, Department 3, of the city and county of San Francisco, has not jurisdic- tion of the persons and of the subject ing to determine. Third—That it appears from said peti- tion that the jurisdiction exercised in the proceedings sought to be prohibited js that of a committing magistrate, and it Goes not appear from said petition that this respondent is now trying or proposes at any time to try and finally determine se mentioned in said petition, , People vs. W. 8. Leake and J. D. | Spreckels. Fourth—That it does not appear from sald petition that the petitioner is a party beneficially Interested and that he has a right to maintain this proceeding. MOORE MAKES RETORT. | Fifth—Without reading at length—I do not know just how far your Honor has bad your particular attention called to the various sections of the code upon { which these varlous proceedings rest or upon the statutes and legisiation which gives jurisdiction—I will cite your Honor just to the sections of the code, and I won't take up your time to read them, but if 1 do not state them correctly my friend, Mr. Moore, will probably cor- rect me. Mr. Moore—Maybe I will. Mr. Preston—I would like very much if you will, for I will not misstate them intentionally. Libel is made a crime by section 248 of the Penal Code. The pun- ishment is defined by section 249 of the Penal Code. The constitutional provision relating to the crime of libel is section 9 of article I of the constitution of the State of California. And the only part of that which concerns your Honor at yresent in any way is that “indictments found or informations laid for publication | in newspapers shall be tried in the county | where such newspapers have their pub- lication offices, or in the county where the party alleged to be libeled r sided at the time of the alleged publica- tion, unlss the place of trial shall be changed for good cause.” Consequently there is the venue in cases of criminal libel laid possibly in two counties, which would be when the publication office was in a different county from that wherein the publication was laid. That section of the constitution is a limitation upon the law as it originally stood when venue might be laid in any county or at any place where a publication was charged. This is the limitation of that venue. The punishment for®libel is a different pun. ishment from that prescribed for the or- dinary misdemeanor. - It is a punishment by fmprisonment of one year or a fine of $5000. And when the code provided for the trial of misdemeanors it transferred ‘o the inferior courts the jurisdiction of all misdemeanors which were punishable by the ordinary clause in the Penal Code re- lating to misdemeanprs. And libel, being one not otherwise provided for, passed to the Superior Court as to the question of jurisdiction. Under the case of the People vs, Mec- Curdy, 68 Cal., page 578, it was held that the defendant there had a right to prose- cutfon by information—preliminary ex- amination and information. That is not the law to-day: that is to say. they have | held that where the Legislature having conferred jurisdiction in libel cases upon the inferior courts, that the section of the constitution relating to “otherwise pro- vided for” is satisfied and that the juris- diction will vest in the interfor court. And in the case of ex-parte Wallingford, in the Sixtieth California, at page 103, our Supreme Court held that when,a jurisdic- | tion is vested in the Police Courts it is exclusjve. Mr. Moore—Let me understand. What is your point there? I don't want to in- terrupt you unless it is absolutely neces- sary; what is your point there? That the jurisdiction in the Police Court here in San Francisco in the case now pending is for trial and not for examination? | Mr. Preston—Oh, no. I think we will | ree on the law. I am simply sum- | | miyself cured, as I have not felt any symptoms since. Had tried almost all remedies that I h of that were good for d; ia, but with- et Fimaity T bocame Sistom , and wrote to you for advice, with the above result.” The dealer who offers a substitute for the " Discovery ” is only seeking to make the little more profit realized on the sale ©f less meritorious preparations. Dr. Pierce’s Common Sense Medical Adviser is sent frec on receipt of stamps to pay expense of mailing only. Send 21 one-cent stamps for the paper covered book, or 31 stamps for the cloth bound. Address Dr. R. V. Pierce. Bufialo, N. Y. marizing it on the assumption that per- haps his Honor is not as familiar with it as we are, who have been beating the bush for two or three weeks. SUBMITS AUTHORITIES. Ex-parte Wallingford, 60 Cal, 103— that is the case, may it please the court, where they say that when the Legisla- ture vests a jurisdiction in a case of that sort in a Police Court, that it satisfies that provisign of the constitution -which relates to “Otherwise provided for” and that thereupon the Police Court s clothed with that jurisdiction. Section 682 of the Penal Code provides that every public offense must be prose- cuted by indictment or information ex- | what | of { diction of the case; that it had acquired cept offenses tried in Justices’ and Police Courts. So that where a case is insti- tuted in a Justice’s or . Police Court, which is not for the trial or determination of the offense charged, it is simply a hearing for the purpose of the preliminary examination and the binding over to an- swer in the ordinary course of law. The charter of the city and county of San Francisco, article 5, chapter 8, ‘sec- tion 2, Treadwell's Edition, at page 145, vests in/the case of criminal libel con- current jurisdiction in the Superior Court and the Police Court. Therefore, as to the Superior Court, where it is.intended to treat it as one of the high misdemeanors prosecuted by examination and indict- ment, the procedure is under. section 682 of the Penal Code. Where it is sought to invoke the jurisdiction of the Police | Court to try the case, there is no neces- sity for any such procedure. So with the Wilmington case; being a Justice of the Peace and not being cloth- ed by statute with jurisdiction to try the case or determine the case, the defend- ants are simply sought to be brought be- fore him for a preliminary examination— he sitting as a committing magistrate. So that, with both of the proceedings mentioned in the petition—that in W mington Townskip and that in the city and county of San_ Francisco—they are both proceedings had before a magistrate for the purpose of holding a preliminary examination to determine whether or not there is probable cause to suppose that the crime has been committed and whether or not the defendants shall be held to answer for a high misdemeanor, under indictment or information, to the | Superior Court of the county. That is why 1 emphasized when I read the petition to your Honor that the affi- davit of Mr. Gage recognizes that, speaks |'of it as an examination and closes his petition by asking that Judge Fritz be re- strained from any examination of the charge or from entering any order of con- tinuance or any order either holding or discharging the defendants. We might ndmit, in liminae—or I will, for the purpose of this argument, as far as 1 am concerned—I don't want to bind my brother, Campbel, by that—for the purposes of my argument I may admit, in liminae, the question of concurrent juris- diction and the right of the court wherein that concurrent jurisdiction first lodges. 1 have to say here that this is not such a case, nor is there such a case presented by the record. Neither of the Judges or Justices mentioned, Fritz or Downing, are sitting as courts, nor is this in that sensa o judicial proceeding. The Penal Code—at the risk of being prolix, your Honor— provides what a magistrate ‘is at sections 507-808: A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public of- | fense.” DEFINES MAGISTRATE. The next section proceeds to _define is a magistrate. Any Justice the Supreme Court is a mag- istrate. We might suppose for the purpose of this argument that this was the case of Henry T. Gage vs. “hief Justice Beatty, so far as.the legal lines and legal pr dure and legal prin- ciples are concerned; because Chief Jus- tice Beatty, as a magistrate under section %08, would have a right upon the lodging of a complaint with him as a magistrate to have issued the warrant of arrest and to have caused Mr. Spreckels and Mr. Leake to have been taken into custody upon that warrant.. Then upon section 858 of the Penal Code, when the defend- ant was brought before the magistrate, the examination would proceed. So that, g0 far again as any examination is con- cerned and any question of throwing about this case the panoply of a court or a trial or judicial proceedings, which will be read probably here ad nauseum, it has no more to do with the case than if it was Chief Justice Beatty sitting as a magistratec holding an ~ examination against these defendants upon a warrant of arrest which he as such magistrate is- sued. There is no greater sanctity to it, and all the decisions which relate to courts and to trials and. to/ proceedings, may it please the court, where the result would give rise to the doctrine of res ad- Jjudicata—where it is the judicial deter- mination of the thing itself—has no rele- vancy in this case. You may have one, you may have five, you may have twenty preliminary examinations, and no one is a bar te the other, as we will see in a few moments. They have taken out in this case, in other” words, then, as appears by the predicate laid already, a writ of prohibi- tion to prevent a magistrate from hearing testimony on a -complaint in a matter over which he has plenary jurisdiction to act as a magistrate. That is the case. If Judge Fritz is a magistrate, if by the charter of the city and county of San Francisco or by the Penal Code he has Jjurisdiction to entertain a complaint un- der section 808, he has power under the other section, I think—I cited it to yvour Honor—to examine- the witness. This is what the petitioner here wants to have stopped, avoided. What reasons does he give? That another magistrate, in another county, who cannot try the prisoner, who cannot decide the case, pro- poses to hold an examination to see whether an offense had been committed in the county of Los Angeles. That is the head and front of the whole case. So I say that for the.purboses of my argu- ment, may it please the court, I am will- ing that you may assume, and T am will- ing to admit in liminae, the authorities of the gentlemen as to questions of courts of concurrent jurisdiction, and according- ly I may strengthen my opponent's argu- ment_there. 1 will say that in saying this I have fragment memories of the Sharon case, where the Superior Court of the city and county of San Francisco tried the case of Sharon vs. Sharon and made a decree and orders and a petitiony prior to the commencement of that ac- tion, had been lodged in the Circuit Court of the United States for this circuit, set- ting forth that that celebrated contract was a fraud and asking on the well known ground of equitable relief that it be de- clared fraudulent and that it be delivered up to be destroyed: that after the deter- mination by the Superior Court here the Circuit Court there held that it had juris- jurisdiction before the lodging of the com- plaint here, and proceeded to hear and determine that case, and completely de- stroved all the judgments of the State ccurt. H Here there is no jurisdiction in the Su- perior Court of Los Angeles; there is ro jurisdiction in any cofirt as to this of- fense. As a committing magistrate he is about to hear Jt. SPEAKS OF WRIT. Now, then, what is the question that is presented upon an application for this writ? The sole question is whether or rot the inferior court has usurped juris- JUDGE DOWNING CONTINUES CASE AT SAN PEDRO Postponement Is Granted on the Motion of Deputy Dis- trict Attorney Jones. Rl e AN PEDRO, July 11.—Deputy District Attorney Jones, accompanied by Court Reporter Charles W. Sexton, was present in Justice Downing's court this afternoon, in-the suit of Governor Gage versus . Messrs. Spreckels and Leake. The court convened at 3 p. m.. Mr. Jones mov- ed a postponement of the case, giving as his reason that Governor Gage was in San Francisco supporting a writ of prohi- bition in the Superior Court. Justice Downing then postponed the case to Wednesday, July 16, at 3 p. m. Affidavits were flled by W. J. Martin and Louis P. Boardman for non-attendance, giving as their reasons that they had been subpenaed to attend court in San Francisco. To date Warden Martin Aguirre is the only witness to answer subpena from Justice Downing's court in person. @ il il @ diction or exceeded its lawful powers. The writ is always refused when it ap- pears that the court has jurisdiction over the matter complained of. 1 cite your Honor to the sixteenth En- cyclopoedia of Pleading and Practice, sec- tion 1125—and this, what 1 have just stat- ed, is a copy of the text verbatim ad lit- eratim. Without desiring to pad the ar- gument or the brief or to roll up /the countless authorities that are given in the note, 1 simply refer your Honor to the encyclopoedia_itself. The case of Patterson vs. Conlan, 123 Cal., 454, is an appeal from an order sus- taining a demurrer to a petition for a writ of prohibition. Appellant sets out in his petition that after three succes- sive criminal proceedings had been Insti- tuted in the Police Court of the city and county of San Francisco, in each of which appellant was charged with the crime of assault with a deadly weapon upon one Barney Ward, and after one of these proceedings had been dismissed by the Judge of the Police Court and the two others had each successively cul- minated in an order of the Superior Court granting appellant’s, motion to dismiss the information in ‘the same, and after the Grand Jury had investigated and ig- rnored a charge against appellant of this sume offense, a fourth complaint has been filed against him on this same charge in the said Police Court, and that unless restrained from so doing Judge Conlan will proceed with a prelimingry examination of such complaint. The pe- tition also states that the respondent de- clared in open court that his mind was so fully made up in relation to the charge set forth in the complaint that he felt disqualified to act upon said charge. It is contended by appellant that re- spondent is disqualified for the reason that he has a fixed opinion as to the mer- its of the case and intends to hold him to answer. The fact that a Judge of the Police Court has formed and expressed an opinion as to the merits of the matter that he I8 to determine does not disqualify bim to hear and determine such matter. A Judge is disqualified to act as such in an action or proceeding only: 1. When he is a party to or interested in the action or proceeding pending. * 2. When he is related to either party or to his attorney or agent within the third degree. 3. When he has been an attorney in the action or proceeding: or 4, When it appears from affidavits that either party cannot have a fair trial be- fore any Judge of a court of record by reason of the bias and prejudice of such Judge. These are the only causes which work a disqualification of a judicial officer. Ap- pellant’s petition fails to disclose any of the foregoing causes of disqualification. The dismissals of the various charges against appellant constituted no bar to a further prosecution against him. Citing b4th California, which rests on a case in 52d California, where they hold that there may be any number of pre- liminary examinations, and that the de- fendant is_not entitled to his discharge when the Superior Court ordered the dis- charge of the defendant by reason of the dismissal of the indictment, and he was still held in custody and took out habeas corpus to obtain his discharge, and the return of the Sheriff showed that he was still_held in_custody under a warrant Is- sued by a Justice of the Peace upon a fresh charge, the same charge was re- newed before the Justice and the Supreme Court held that it was a proper answer to the writ, and remanded the petitioner. JUDGE HAS JURISDICTION. “The dismissals of the various charges against appellant constituted no bar to a further prosecution against him. The Police Judge therefore had jurisdiction of the last proceeding before him. The office of the writ of prohibition is to re. strain a judicial officer or other person from doing that which he has no juris. diction to do, and, it appearing _that Judge Comlan’ had 'the power as Judge of the Police Court to hear and deter- mine the matter before him, the demur- rer to the petition was properly sus- tained.” > Does it appear here on the face of the record that this magistrate has a right, upon the lodging of a complaint before . him, to proceed to determine upon a pre- liminary examination, the venue beh:‘s properly laid within the constitution section; whather there is probable cause to suppose that that ~crime therein charged has been committed, and to hold the prisoner to answer? To me the prop- osition seems absolutely impossible to debate. Jurisdiction is defined as the right to hear and determine. If your Honor wants any authorities on that I will cite Alpaschul vs. Doyle, 5 Cal. 633-4; Co. vs. Placer County, 43 Cal. 365; Sherer vs. Superfor Court, 9 Cal. 653. The unlawful assumption of jurisdic- tion, either of the entire cause ‘or sub- ject 'matter, or of something collateral or incidental thereto, is the criterfon to de- termine whether prohibition is the proper remedy. There is a note which takes in all of those cases, may it please the court; State vs. Commissioner, 12 Amer., Dec. page 607, and at page 608 of the same note the language is: ““If the court or tribunal has jurisdic- tion the writ cannot go; indeed, it is held that even prima facie jurisdiction will bar this remedy.” The decisions of the Supreme Court ot Michigan, I think, rank possibly or prob- ably as high almost as those of any of the States in the Union. They have passed directly upon this collateral ques- tion that I have reference to; that is to say, as to prellminary examination and the acting of a committing magistrate. I cite the case of Thomas R. Hamilton vs. the People, 29 Mich., page 173, and 1 read from page 176. The defendants in this case, may it please the court, were in dicted for burning a barn. They plead- ed that there had been a day lost in the Jurisdiction of the Justice in holding a preliminary examination because he ad- Journed over the 22d of February, which was not a law day. It says here: “The Justice in these examinations does not act judicially in the tcchnical sense, but in his capacity of a conserv- ator of the peace, and the proceeding is one which at common law was.conduct- ed very much at discretion.” That is in line, may it please the court, with the thought that this is not a court and that it is simply two committing magistrates, both having venue, both having jurisdiction, attempting to exam- ine into the question as to whether there has been (1) an offense in the county of Los Angeles; the other as to whether or not there has been an offense in the city and county of San Francisco, upon in. formations properly laid before them. WOODS ON MANDAMUS. In speaking of the writ of prohibition I read a guotation from Woods on man- damus: “Its office Is to restrain an i ferior tribunal from taking cognizance ot a matter beyond its jurisdiction; and it is to this question, upon an application for the writ, that the court will direct its attention.” The fact as to whether the court acted rightly or not is not open to inquiry. If it has the jurisdiction the writ cannot issue, however wrong or erroneous the action of the court may be.”—Wood on Mandamus, 2d edition, pages 107-S. There is still another proposition con- nected with this, and that is that your Honor cannot look at the particular facts surrounding the particular cause to en- able vou to determine the question as to whether or not the court has jurisdiction. The question is not whether the court has jurisdiction of the particular case sought to be prohibited, but whether it has ju- risdiction of the general class of cases to which this particular case belongs. 1 might cite you there again to 16 Ency- clopedia of Pleading and Practice at page 1126. If there is any doubt about the matter, if the court has any doubt, it is to be re- solved in our favor. I cite you to Alder- men, Mayor, etc., vs. Davis, 28 W. Va., page 324 1 will simply read the fourth syllabus: “The petition for a writ of pro- hibition must clearly show by its allega- tions that the inferior court is about to proceed in a matter over which it has no jurisdiction. If the facts alleged leave the question of jurisdiction doubtful the writ will be refused.” The fact that no appeal lles from the decision of the inferfor court—I have used that citation on account of an allegation and conclusion of law in the petition that the petitioner has no plain, speedy or ade- quate remedy. ‘The fact that no appeal lles from the decision of the inferior court does not authorize the extension of the writ to cases in which it does not properly lie.” 16 Enc. Pleading and Prac- tice, 1127. Also State vs. Superlor Court, 3 Wash., 705, reading a quotation from the Encyclopedia: “The better rule seems to be that the writ will not issue where tha Jjurisdiction of the inferior court depends upon contested questions of fact, for the determination of jurisdictional facts is a legitimate exercise of the powers of a court.” Mr. Moore—Read that again. Mr. Preston—To please you I will: “The better rule seems to be that the writ will not issue where the jurisdiction of the In- ferior court depends upon contested ques- tions of fact, for the determination of ju- risdictional facts is a legitimate exercise of the powers of a court.” I think I heard you say that habeas corpus proceedings. I don't know whether you got it out of the Encyclo- pedia of Pleading and Practice or not, but it sounds much like your language on that occasion. OBJECTS TO ENCYCLOPEDIA. Mr. Moore—I am not in the habit of stumng courts with encyclopedias of law. Mr. Preston—You are unfortunate. “It is a well settled principle that If the ex- istence or non-existence of jurisdiction depends on contested questions of fact which the inferior tribunal is competent to inquire into and determine, prohibition will not be granted.” (Cites 71 Mo. App., 14 to 24; State vs. Withrow, 141 Mo., 80.) ““Objections to jurisdiction which appear on matters in pais cannot be considered on an application for this writ. Jurisdic- tion of the subject-matter is the test.” (Cites People vs. Seward, 7 Wend., 518.) I wish to cite your Honor, with regard to this question of preliminary examina- tions not belng matters res aajudieata T beg your Honor to pardon me for not tak- ing them in a connected shape—State vs. Vaughan, 121 Ala., page 41. I simply read the second syllabus: “There is no statutory limitation upon the number of fimes . person may ba charsed with o given crime, arrested and brought before a magistrate for preliminary investiga- ‘tlon, and discharged, held to bail, or com- mitted without bail, and 1f a defendant on preliminary examination is Committed without bail. or a‘?:‘x'xfi‘t'?:a‘ % bail, he may be again required by another magistrate_to ‘undergo preliminary ex- amination for the same offense and a for- mer examination is no bar to the second prficeedgng.‘l' Mgyt ere is almosi e _case at bar People vs. Johnson, 71 Cal, 384, 1"31‘1’1 read the syllabus: ‘“Defendant was ar- rested on a warrant issued by a Justice of the Peace of a certain township, on a complaint filed before him. Thereafter, and while this proceeding was pending, he was again arrested on a warrant is- sued by a Justice of the Peace of another township and was by him committed. On this commitment the information was filed under which he was convicted. Held, that the proceeding before the first mag- istrate did not affect the validity of the information, nor deprive the Superior Court of jurisdiction.” . That disposes of that question of con- gurrent Jurisdiction in committing mags trates. in the | There are two more California cases | touching this question. The case of Kal- loch vs Superior Court,” 56 Cal. 229. ‘“Held, that where a prisoner had been committed by a magistrate upon the oral | testimony of the witnesses, and without reducing them to writing (as required by | the section referred to), that an informa- | tion against him was rightly dismissed | and constituted no bar to another in-| formaticn. The pendency of one indiet- | ment is no ground for plea in abatement | to another indictment in the same court for. the same cause, and the same rule applies to informations.” In connection with that I want to call your Honor’s attention to the section of | the Penal Code which provides that noth- ing is a bar except a conviction or an ac- quittal. Mr. Campbell suggests that I read this part of the opinion in the Kal- loch -case: “But was it a material fact in the case that the second prosecution was com- menced before the first was ended? Sup- pose the prosecution had been by indict- ment, would the pendency of the indict- ment affect the right of the prosecution to prevent another for the same offense? This question is answered in the negative | by a multitude of authorities, a few of which we will notice.” The other case I was going to present was the case of Walsh on Habeas Corpus ‘n the 39 Cal, page 705. In that case a man (Walsh) was arrested for killing a man on a complaint sworn to by a Jus- | tice of the Peace. He had a preliminary | examination. He waived examination | and was admitted to bail in the sum of $1000 by the Justice. Subsequently, an- other complaint was laid before the Supe- | rior Judge of the county and while at lib- crty on the bail fixed by the Justice he was rearrested on a warrant issued by | the Superior Judge. The Judge released him on $10,000 bail. He took habeas corpus and the petition was dismissed on the ground that the | proceedings were proper, and the Su- | preme Court adds there aljunde that there was no witness sworn and no power to waive examination. As I say, that was merely aliunde, because there was no necessity for anything of that sort. Section 754 of the Penal Code provides that ““When an offense is within the jur- isdiction of two or more counties a con- viction or acquittal thereof in one county is a bar to a prosecution or indictment therefor in another.” So that nothing is a bar to a prosecu- tion in the county where there is proper’ venue, except a conviction or acquittal. That scctor of the Penal Code i1s en rapport with all the authorities cited to that end. Under those authorities, may it please the court, this petition, stripped to bare poles, and read in the light of the law, simply amounts to an allegation that A. J. ¥ritz has had an information lald be- fore him that the defendants, Leake and | Sgreckels, have committed the crime of I'bel in the city and county of San Fran cisco; that the principal office of the p: per is in the city and _county of San Fran- cisco, showing it to be a case over which the Police Court and the Superior Court of the city and county of San Francisco have concurrent jurisdiction. The pro- cecding is a preliminary examination, not a trial; so stated in the petition for the writ. Consequently it follows that the only legal reason stated why a writ of prchibition should issue to the'magistrate is that In another county another prose- cution, for a libel is being urged by Henry T. Gage against the defendants. I won't take up the time of the court in discuss- ing that proposition, in the light of the uniform authorities upon the subject of the writ of prohibition. There 1s talk about collusion; there are some allegations here as to collusion; this petition to be framed upon the prop- osition that the defendants will be dis- charged by Judge Fritz on an examina- tion. It indirectly charges Judge Fritz with fraud. It says that through the ig- norance of Boardman and the fact that the defendants will introduce incompetent and immaterial testimony, which they cculd not do exeept by the procurement and the sufferance of the Judge, they have recited here in this petition that they will either be held or discharged. But, as we have seen, whether he holds them or discharges them is no bar to a cther prosecution. The law in its ma- jesty cannot revolve in the township of Wilmington entirely regardless of what the law in the city and county of San Francisco is doin% There is no bar; one holding is not a bar to another; one in- dictment is not a bar to another; prosecution is not a bar to another. only bar known and stated not only in the books but in the Penal Code itself is a cenviction or an acquittal. How is the afflant in this case, assuming again for the purpose of the argument, if you will, that he is beneficially interested in a criminal prosecution wherein the Jeople of the State of California are plaintiffs and Mr. Spreckels and Mr. Leake are de- fendarts—how is he beneficially interested in that prosecution in order to sustain a writ of prohibition to clog the wheels of tho criminal jurisdiction of the city and county of S8an Francisco in a case vested within that jurisdiction by the statutes and the law? SAYS PETITION SWITCHES. Is it a"cause that he may be subpenaed? Is it a cause that he may be served with process? Is it a cause that the defend- ants have said that if they are put on their preliminary examination they will bring one hundred witnesses into court? Is that a cause? Surely, if it is some tax- payer of Wilmington Township could plead the same cause in Wilming- ton; and that can be pleaded here with much greater effect, because the taxpayer in Wilmington could say that it was an outrage upon the taxpayers to compel the transportation of those hundred wit- nesses, to compel the transportation of the books and to move so far away from the scene of inquiry, all of which must be pald by the taxpayers. So if it is not a ground to prohibit Justice Downing, it cannot be a ground to prohibit Justice Fritz. The' pgtition switches in a most pecullar manter. Along about the twen- tleth page the petitioner commences to talk about the defendants. There is only one party here to this petition, and that is Fritz, respondent, but I suppose inad- vertently, in_the haste of preparing the petition, they commenced to use tne word “defendants.” As I say, N!alns that, here is the reason that he gives for the writ—why this court should be ?l’ohlblted from jurisdiction. This is a criminal pros- ecution. This is a case, as he says him- self in his petition, that he has fn com- mon with the people of the State of Cali- | San Francisco? [SION FROM WASHINGTON Writs of Habeas Corpus Asked T e Bonds_[\c—cepted for Release of : Defendants. + the personal feelings of any man whe seeks to become the complaining witnes: ‘What the gentleman’s feelings are, what- ever they may be, cannot be considered by this court in a case where the people are the plaintiffs. There is no attack on the. integrity of Judge Fritz here. It would have no place in the petition, as | mary things in the petition have no place there. As I have said before, on the question of the issuance of this extraor- dinary writ your Honor is limited to one inquiry—not has Judge Fritz jurisdiction in this particular case, but has Judge Fritz the right to sit as a committing magistrate upon an information lodged with him as such charging that a libel has been committed and showing affirma- tively on its face that the venue has been properly laid in the city and county of That 1is the question. That is the question that I want to sub- mit. 1 feel that I would not be doing vour Honor justice—I would not be doing myself justice—to discuss at length or to produce authoritles on many things that are said in that petition. Mr: Campbell suggests that I have omit< ted the question of collusion. Collusion— admitting, which this demurrer does, if you will, collusion—does not deprive a court of jurisdiction, nor is it a ground that I have ever found anywhere or in any authority for the issuance of the writ of ‘prohibition. It seems that on this writ as an equitable remedy we learned law- yers have been singularly mixed. I have cited & number of cases which cover that particular question, but— MOORE INTERRUPTS. Mr. Moore (interrupting)—I don’t under- stand you to have cited any,cases on that question, colonel. Mr. Preston—I thought that I had cov~ ered it when I stated the matters which the courts say would be permitted to be inquired into upon an application for a writ of prohibition. .I thought that when the matters which might be examined were stated that it excluded the rest. In Patterson vs. Conlan, where the Judge stated that he was prejudiced and that his mind was made up and that he would hold the defendant to answer, the court held that it was no ground for a writ _of prohibition. They might have al- leged here that Judge Fritz had made his mind up to dicharge these defendants or to hold them. What difference does it makes? It is no ground for a writ of prohibition under the case of Patterson vs. Conlan. But they do not attack the in- tegrity of the Judge. They say that in a criminal proceeding they will rely upom the ignorance of Boardman and the ime materiality of the testimony which we will introduce, and upon this, which js the grand result of this collusion, so called, they propose to ask you to prohibit the examination. What harm comes to them, whatever Judge Fritz does? What harm comes to them? They can have them re- arrested here if he discharges them. If he holds them to answer, that is what they want. They can prosecute in Wil- mington Township or they can go out on the deserts of Downing and lodge their complaint_and have warrants. There is no bar. What Is the sting of this par- ticular proceeding, that they should come into court here to invoke the majesty of the writ of prohibition, one of the great prerogative writs known to jurisprud- ence? Collusion! Well, it not only will not oust a court of its jurisdiction: if it | amounts to anything it amounts to a con- tempt of court; it does not affeet the jurisdiction. Mr. Works—I cannot cite the authority, because I am speaking on my feet and I have no note of it, but Mr. ‘Works, ex-Supreme Judge, wrote a book some time ago on ‘“Courts and Their Jurisdiction,” and in speaking of that question he speaks of the jurisdiction of the thing and the jurisdiction of the per- son. If there is jurisdiction of the thing and jurisdiction of the person, what is the collusion? The colluston is not be- tween the people of the Stateq of Califor- Continued on Page Seven. ADVERTISEMENTS. The Chances of Cure lie entirely in the experience of the physician who is attending you. If you have a serious chronic disease your case should be handled by a specialist. The di- agnosis should be perfectly correct to insure an early re- covery. Curing_Consumption by the Electro-Chemic Y. 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