The San Francisco Call. Newspaper, July 30, 1902, Page 1

Call, VOLUME XCII-XNO. 60. SAN FRANCISCO, WEDNESDAY, JULY 30, 1902 PRICE FIVE CENTS. GAGE MEETS WITH DEFEAT IN EEFORTS LONGER TO DELAY TRIAL OF LIBEL SUIT INSTITUTED BY LOUIS P. BOARDMAN AGAINST THE PROPRIETOR AND THE MANAGER OF THE CA ceedings necessary to determine the question. for further delay. That delay 1s desired, however, i1s shown by the actions of Governor HETHER the proprietor and the manager of The Call have libeled Henry T. Gage will be determmed in a very short tim The writ was demurred to o statutory grounds. LL e, unless the Governor succeeds n placing further obstacles i the way of the legal pro- Judge Sloss decided yesterday that Police Judge A. J. Fritz has every right to proceed with the examination of the defendants n the surt for criminal libel brought by Lours P. Boardman against J. D. Sprecke’s and W. S. Leake and arsmussed a writ obtamnea by Gogernor Gage prokibiting Jucge Fritz 'from proceeding with ihe case. ernor Gage, notwithstanding his professed desire for a hasty trial ‘and mvesiigation into the charges. y The writ was sought by Gov- The decision - of Judge Sloss leaves, therelore, no excuse eayE'S attorneys, who, within three hours after the filng of Judge Sloss’ decision, filed a notice that an appeal will be taken therefrom- | | | Judge Sloss ' Notice of an Refuses | | Appeal Is Wrrit. | 1 Given. Holds Law on \Part of Plan Subject Is | | to Secure Clear. 1 | Time. Quotes Cases, 'Do Not Want in Other || | a Speedy States. || Trial. HE attempt of‘% [ic:fSpreckeIs and Leake by mmmm; trial of John D.!| [ | atction o the same cause. < S. Leake, the pro- r and the manager of The ely, on a charge of | preferred against them by | Boardman, has failed. Sloss decided yesterday Fritz, who was re- Call, respectiy ol judge strained by Governor Gage from | procgeding with the trial, has every ri to hear the case,| ‘ ed the demurrer to| ition for a writ of prohibi- filed by the attorneys for > els and Leake, alternative writ udge Murasky some the weeks ago dismissed. Unless the for Governor Gage deeper into their knowl- ¢ of the means to defeat the f law and justice, and sup- ure efforts by points 1 authorities possessing more rit than those submitted with tion for a prohibitive writ, estig “courted” he Goversior can now proceed. he decision was rendered by | 4 ® on by idge Sloss at the opening of his vesterday merning. Attor- E. F. Preston and J. C. JUDGE SLOSS RENDERING DECISION SUSTAINING DEMURRER TO GAGE'S PETITION FOR /WRI T OF PROHIBITION. vel’, legal representatives D. Spreckels and W. S. ake, were present, as was also Iroad Attorney A/A. Moore Gage provide authorities to sup-| port his contention that Judge { Fritz had right to pro-| ceed with trial, while no the at| anc an understudy, represent- = i c g 353 .| every point Judge Sloss showed | ing Gage. Notice of the de- sl s ! . 9 conclusively that the proprietor and 1ts contents was - £ T it p and the manager of The Call| upon Moore in open . . . 4 | were acting in accordance with | but he took no action laws provided by coustitution, and code and methods of proce- dure in vogue in more than one| State in the Union. | The charge of tween Complainant Boardman | and Messrs. Spreckels and Leake, | according to Judge Sloss, is not | entitled to notice by him, being a matter for the lower court to | determine” “The question whether or not the prosecution | had been collusively instituted.”| he says, “was a question of fact| { which the lewer court had juris- diction to determine. Even if it | determined the question wrongly | t was none the less acting within | its jurisdiction, and this court | cannot interfere by prohibition.” Boardman Has Right The question of Boardman’ right to file a complaint is dealt | with in a vigorous manner by Judge Sloss, who holds that in “such prosecutions every citizen, every inhabitant of the State, is| equally interested. If a burglary has been committed the man whose house has been entered has as great an interest as his néigh- than hastily to scan the| document. Mr. Campbell noti- fied Judge Sloss that he would ater in the day present for his| signature an order relieving| Judge Fritz of the ban placed upon him by the alternative writ. The order v signed by Judge Sloss shortly after 2 o’clock. | Wiil Take Appeal. ‘ Notice of an appeal to the Su-| preme Court from the decision of loss was filed a few hours ter by Governor Gage’s attor- neys. The bond accompanying the notice of an appeal is signed C. Wilson and George collusion be- e B e, who qualify in the sum of $300 each | Judge Sloss’ decision is clean-| cut, and shows such a thorough knowledge of the law of prohibi- | that it exposes to ridicule the efforts of the Governor. The ourt shows conclusively in i decision that the efforts ot Gage's attorneys to prevent :he" proceedings before Judge Fritz| were built upon a foundation | capable oniy of sustaining a plea for delay, znd were without the|bor, but no greater. So in this jeast semblance of legality. In|case the petitioher has no greater no single issue did Governor | or other interest than any other | | | | tion person in this State in seeing the serpetrators of the crime of libel unished. It is true that, if such crime has been cominitted, the setitioner has sustained an in- jury, but redress for such injury is to be sought in a civil action, not a criminal prosecution. Both prosectitions are conducted by the people of the State of Cali- fornia. The petitioner is not a party to either,.and has not; as complaining witness, the right to control either.” Judge Slfioss Says He Is Not Entitled to Writ. UDGE SLOSS’ decision, ich is contained in twelve typewritten pages, and is a comprehensive re- view of the law of prohibi- is as foliows: A petition for a writ of prohibition has been filed herein, which contains substan- tially the following allegations The petitioner, Henry T. Gage, has for twenty years heen a resident of the coun- ty of Los Angeles, State of California. On June 14, 1902, he appeared before H. C. Downing, a Justice of the Peace of Wil- mington Township, county of Los Ange- les, and made complaint under oath charging John D. Spreckels and W. 8. Leake, proprietor and manager, respec- tively, of a newspaper known as The San Francisco Call, with the crime of libel, al- lezed to have been committed by the oub. tic | wha defamatory sfatements rogarding “waid | On'the day of the filing of the | complaint, Downing, as Justice, issued a petitioner, warrant. directing “said eckels and | Leake to be arrested efore | him. On the 1%th da . tie Sheviff of Los Angeles County served the warrant on Soreckels and Leake in the | | elty "and €ounty, of. San Fran | there arrested them. Thereafter, i Spreckels and T.eake were released oh bail. | ither of the accused has, sinec the 14th ay of June, 1902 been in the county of | s Angeles, and they have steadfastly | refused'to dppear before said Justice. . | On June 1902, one Louis P. Board- | man, acting without authority from the petitioner, and in pursuance of an at- rangement ‘between himself and sald Spreckels and Leake, for the purpose of defeating the jurisdiction of the said Jug- tice and preventing any examination or trial of id charges in Los Angeles County, appeared ‘before the respondent, A. J. Fritz, a Judge of the Police Court | of the city and county of and made complaint against Sprecke | Leake, charging them with libel, consist- | ing of the publication of the same matters charged in the comblaint made by peti- | tioner, Boardman's comnlaint set out in full the facts concerning the complaint theretofore made by affiant, and averred | the pubiication office of the newspaper in | question to be in the city and county of San Francisco. On this complaint a war- rant issued; Spreckels and Leake were | arrested and gave bail and on June 192, the respondent commenced the pre- | liminary cxamination of said Spreckels | and Leake on sald charge. The petitionar | appeared in respondent’s court by counsel | and obiected to the mination on the | sround that the court had ne jurisdiction to proceed, first, by reason of the ante- cedent jurisdiction attached in the county of Tos Angeles, and second, in that the jurisdiction had been sought through the of said Spreckels, | fraud and coliusion Leake and Boardman. At a subsequent session, the respondent, had - refused to permit petitioner’s counsel to interrogate said Boardman.on the issue of collusion, anhounced his con- clusion that he.had jurisdiction to pro- ceed with the examination of said Spreckels and Leake. It 1s this proposed examination that the petitioner seeks to restrain | | from his in addition to the facts hereinbefore sei out, that Beardman is igneorant of the facts involved in the prose- ention of said charges of lihel: that the defendants intend to prolong the | enring by ealling many witnesses, and that they may—or will—sub- vens him, the petitioner, to testi ax a witness at such pre amination. thereby keeping him home and the conduct of his business. The respondent has interposed a murrer to the petition, and this demurrer, acmitting, as it docs, for the purpose of this discussion, the truth of every fact aileged in such petition, raises the ques: tion whether the facts so alleged are suf- ficient, in law, to warrant the issuance of | a writ of prohibiton. et 4 CONCERNING USE OF WRIT OF PROHIBITION | Says [t [s Meant to Pre- vent Action in Excess of Jurisdiction. HE writ of prohibition “ar- rests the proceedings of any tribunal. corporation, board or persen, whether exercising functions jndi- cinl or ministerial, when such proceedings arec without or in escess of the jurisdiction of such tribunal, cor- poration, board or person. — Code of Civil Procedure, xec- tion 1102. “The office of the writ of prohibition ix to restrain a judicial officer or other person from deins that whicli he kas no jurisdiction to dp."—Patterson v. Comnlan, 123 Cal. 453, $ The petitioner contends here, as he did In the Police Court. that the said Police Court is without jurisdiction to proceed with the examination on two grounds: (a) the pendency of a prior proceeding in Los Angeles County, and \l,) the collusive or minary ex- | de- | lication In said newspaper of false and | by a writ of prohibition. He alleges, | fraudulent ch | | I ' POLICE COURT ! alleged to be | eurrent in o i actgr ‘of the proceedings in this eity and county. CAN HOLD AN | EXAMINATION Constitution Provides That Frial May Be Held in | 4 Two Places. 5 OES the fact that com- plaint of the erime of 1 bel has heen made against the accused in the coun- | v of Los Angeles, and that jurisdiction has at- tached there, deprive the FPolice Conrt of thix city and county, upon n complaint charging the same crime being lodgzed with it, of ju- visdiction to hold an examination of the zceuscd? 5 | Under _the constitution .of California, article T, section 9, “Indictments found, or information laid, for publication in news- papers shall be d in. the county where such newspapers have their publication office, or in the county where the party libeled resided at the time of the alleged publication.” The jurisdiction of the crime al- leged to. have heen committed is, therefore, in the ecase at bar, con- the tweo counties, 1. Los Angeles, the county of the peti- tioner's residence. and San Fran- risco, the county where the news- paper has its publication office. | The petitioner relies upon the fa- miliar - rule that where different conrts have eoncurrent jurisdiction, the ong whose jurisdiction first at- | taches will retain such jurisdiction to the end of the litization, to the | exclusion of any other court taking cognizance of a cauxe involving the | same subject matter and the same partics. Taylor v&. Taintor, 16 Wall, 570. Sharon vs.' Sharon, $4 Cal. 424, And, under this rule, it is contended that, inasmuch as the Justice's Court of Wilmingten Township, county of Los An- | geles, acquired jurisdiction of the persons | | matter and of the parties, | menced in anether court, | Dyer v. second court must, therefore. have | had jurisdiction | demurrer, C. i was no bar to the other. courts of the same State or sover- | eignty, the rule goes to the extent of absolutely depriving the second court of jurisdictiom of the emuse, { or merely of giving precedence, in the event of gonflict, to the process or judgment of the court whose jurisdiction first attached. If the second court has, concurrently with the first, jurisdiction of the subject it has been held that prohibition will not lle to restrain it from proceeding. State v. Withrow (Mo.), 18 S. W. 41, In civil actions, the pendency of & prior action involying the same dis- pute hetween the same parties is a ground for a judyment abating the later action; Coughbrough v. 70 Cal. 374. But it is a complete an- swer to a plea of pendency of a prior action to show that the former ac- tion has, before the trial of ihe see- ond, been dismissed or discontinued, |1 Emey. PL. & Pr. 755, Dyer v. Seal- manini, 69 Cal. 639, Moore v. Hop~ kins, 83 Cal. 270; and this Is so even though the former action was com- Hixon w. Sebooley, 26 N. J. Law, 461 (cited In Sealmanini, sapra The from the outset, since, if it had not. jurisdiction could not he conferred by the dis- missal of proceedings pending in another court. Again, it will be observed that the Code of Civil Procedure designates as a ground of demurrer t! pendency of a prior ae- tion (and distinction appears to be drawn in the statutes or elsewhere be- tween actions pending in the same court and those pending in different courts of the same sovereignty), while want of Jurisdiction is made a separate ground of C. P. 40, sub. 1,3 —_— - UNQUESTIONED LAW PROVIDES AN AUTHORITY Prior Indietment No Ground for Abatement of Prosecution. T would appear, therefore, that the framers of the code did not regard the pendency of a prior civil action, whe! er in the same or another court, as going to the juris- diction of the cow: As to criminal proceedings, the argament that the pendemcy of ome prosecution does not deprive amn~ other court of jurisdiction to entere tain a prosecution for the same of- fense has greater force. It Is the unquestioned Iaw that the pendeney of a prior indictment or informa- tion, at least in the same court, is no ground for the abatement of prosecation on a second indictment or information. Kalloch vs. Superior Court, 58 Cal. 229. People vs. Johnson, T1 Cal. $84. Gillett, Crim. Law, 5, 7. In Peopie vs. Johnson, supra, the de- fendant had been held to answer by a Justice of the Peace and had been tried and convicted. The fact that a prioy com- plaint charging the same ° offense’ had been made before another Justice of the eace was held to be no ground for re- versal. Here was a case, then, of two Justices having concurgent jurisdiction to Lold ad examination of the same charge, and the pendency of the one examination Counsel for pe- titioner argue that in the Johnson case | the two Justices were in the same county, | whereas herc they are in different coun- ties. The distinetion made is not drawn | in the opinion of the Supreme Court. Ev- | ery argument based on the possibility of a clash in the attempt to enforce the piocess of two courts applies as well where the two Justices are in the same, Continued on ‘r.‘a Two.