The San Francisco Call. Newspaper, August 7, 1902, Page 4

UPERIOR JUDGE COOK INTIMATES INTENTION TO DENY RI UDGE COOK will to-dgy render his decision on the motion to dismiss granted to District Attorney Rives of Los Angeles County by which the -¥rial of J f)/u.z D 5 preckels and W. S. Leake, proprictor and manager of The Call respectively, for alleged criminal libel upon L 2 Motion of Respondent to Dismiss Action Argued by Counsel Gage’s Lawyer Seeks to Delay the Case, but Is Sidetracked Beneficial Interest of Rives in Cause Denied by Preston rotion of Judge Fritz of Police Court of this city the dismissal of the writ ted to District Attorney s of Los Angeles County ibiting the hearing in tz’s court of the criminal libel by Louis P. Boardman Spreckels and W. S. D. gth before Superior Judge y. The court announced ould file its decision in the r this morning and from the tenor arks to counsel during the & it is a foregone conclusion t motion to @fsmiss will be granted. This will result in the libel suit being taken up at 2 p. m. to-day before Judge Fritz. Attorney Nougues, who represents the vernor in the Rives matter, opened rning session of court with a mo- iss the motion made by the t, on tise ground that the re- nt should not proceed as he did ance of the return day writ, which is Friday. The court re- 1sed to entertain the proposition and s then argued that District At- Rives, on whose affidavit the prohibition was granted, was ally interested, as a citizen of in the effort to have the hear- Spreckels and Leake take place Pedro and not in San Francisco. eys Campbell and Preston de- at Rives was beneficially inter- the matter, but urged that thrust himself into the case in order to procure further attempt of Nougies to libel matter into the proceed- was cleverly frustrated by counsel e respondent, the court holding ould not hear.any of the evi- in that matter on an argument iss the Rives writ. he conclusion of the argument the announced that it would file a opinion this morning. th DISMISSAL OF RIVES WRIT IS WELL DEBATED writte ed for Atterney P. F. Dunne, would argue on the motion s the writ of District Attorney Los Angeles County. upon made a motion to dismiss the entire proceeding. The arguments s—To keep the record straight, please, I will move to dismiss upon the grounds as vesterday—that this of s not @ pleading in cases ed for by the statute, and ould not proceed on such attempted proceeding in and of the plead- the statute. »de forbids expressly the raised on a demurrer to return day of the alter- ur Honor has issued—if under the disguise of a e same point and should d, it is evident that the motion will embrace the Il be made on the return return_day by native writ. The reasons wil w your Homor, or try te a writ should issue—and our con- no rule of practice except re ‘especially pro- ve read to your e , and 1 apprehend Honor is {amiliar with the practice w on that subject. remark made here yesterday on of jurisdiction was raised take notice of it at any time, exactly what they mean. y not raising the ques- has not jurisdiction to »f prohibition. The vital and sole s to whether the lower court g0 and try this case That i# the jurisdictional is for your Homor to in. is for your Homor to decide; decide, as we hope you the application for the we are able to convince onor that under the law this lower no jurisdiction in San Francisco, f Judge Fritz, to inquire at all into r; 'and if your Homor should hold hen is decided—that is the And it surprised me yesterday; gine what they meant by the diction which the gentlemen unless it was in relation to that to, r's jurisdiction to entertain this ap- o yebeeving Most certainly that was not meant. x uld this court have jurisdic- a writ of prohibition if the were not a party beneficlally inter- the writ? That is the question. Preston—Or authorized to use the name the people of the State of California? bell—And if the complaint did not o't think that counsel expect n this court to go into the se: that is, into the question udge Fritz has not jurisdic- sir question I epuld mot pass Preston—No, That » Chile eoife Court raise that question. we: eaking on the jurisdiction yesterday, Mr. Camp- pbell—So that the question of juris- jurisdiction to hear and ztter depends upon the peti- m_coptains upon its face erence that your Honor ¢ jurisdiction—that the party in- & f the court is mnot entitled ¢ the petition does not state facts set the wheels In motion, that t any time. It has been so held If the gentleman wili cite me ¥ where a decision has been given, face of the express provision of the e glad to hear from him. pe ts the statutory proceedings must be strictly owed Mr. Campbell—Then if a man should get a return day three months off he could tie up the wheels of justice In another court; he could e proceedings for three months? ugues—That is for the court to fix, the return day; the applicant does not fix it, t praye for the alternative writ. That s court’s business. If the court chooses to do it, and I dop’t suppose yo o right—1 beg your pardon. in sy "—1 don’t suppose that the person op- the issuance of the writ would haye ght to find fault with the day appointed. ¢ may make a motion to advance it in that urt. But it appears here so clear to me that T don’t see how it can be questioned. reston—Jsn't the rule of the court this: orders that are obtained ex parte may auestioned by ex parte proceedings i, Nougues—The alternative writ is not an posing Mr. Campbell—If your Honor please, it s | e Call was argued at con- | of the | He | 1 ote extraorainary prerogative | e years I suppose he would have | THE SAN FRANCISCO CALL, THURSDAY, | |4 | | | R —— - |as plain as the statute. It doesn't have to have any statute. The question of the juris- diction of a court can always be inquired into | at any time. And the fact that this matter— | that this motion to dismiss is the proper prac- tice was decided by the Supreme Court in the | People vs. Oakland, in the 118th Cal., page 234, and it has been the universal practice—you object to the sufficiency of the writ. You have | o oppertunity to do it if you wait until the return day. You have a right to raise the question of the sufficiency of the writ at lay. That don’t need & statute; it is the common law right which has been given to you at all inies ever since there has been an institution of these things, that your Honor has the right and that it is your duty to exercise it; and all | we do is to eimply call the attention of the court to the lack of juris@iction—and this is simply one of the many quibbles which have been indulged in in these proceedings for the purpose of obtaining time. Mr. Nougues—That is not a fair statement, if your Honor please. | Mr. Campbell—Now, in this case it is con- | ceded in the line of our contention, as follows: By Justice Beatty: ‘It is conténded on be- half of several of the defendants that the At- torrey General has no authority to institute the action, and that the judgment of the Supe- rior Court should be affirmed for that reason aone. No motion to dismiss the action upon | tius ground was made in the Superior Court, but it is contended that the objection is raised | by those of the demurrers which specify, among other grounds, want of capacity in the plaintiff to sue. It seems very clear that this objection does not come under that head, and doukttful if it comes within any of the grounds of demurrer mentioned in the Code of Civil Procedure. The proper practice would seem to be that followed in the People vs. Stratton, 25 Cal, where the defendant moved in the Distric! urt to dismiss the information upon the ground, among others, that the Attorney General had no authority or power to Institute or prosecute the proceedings in the name or on beh: of the people of the State. Notwith- standing the fallure of the defendants to raise this objection in the regular way, we consider it necessary to decide it for the reason that it is, as above stated, jurisdictional in its nature.” The Court—Well, my present impression is, |28 I stated yesterday, that the court would have the right to entertain a motion of this ;yand 1 seem to be sustalned in that by um of the Chief Justice in that case d. However, if you will proceed with ve a ruling on it until Progeed now with reserve my decision. Mr. Nougues—We understand, if the deci- eoin adverse, that we have the privilege of reserving an exception, as I may not be here at the ti ? The Court—Certainly. HAS NO AUTHORITY. | Mr. Campbell—If your Honor please, the pe- the mc tition is entitled as follows: “J. C. Rives, as District Attorney of the county of Los An- | geles, State of California, and representing the | People of the State of California for the pur- | pose of this application”—J. C. Rives, as Dis- | trict Attorney of the county of Los Angeles | and representing the people of the State of Cali- fornia for the purpose of this application. It doesn’t need any argument to any man who ever opened a law book, and particularly any | man who know: anything about the laws of the State of Calitornia, to maintain the posi- tion which we have contended for that this person has no authority in these proceedings to represent the people of. the State of Califor- nia. 1f he has such a right, then he can walk | downstairs into Department No. 3-and dismiss | the cause. Now, what have we here? I saill it was a subterfuge, and I will maintain it by argument. And 1 say that had this matter, a | notice of this matter, been given your Honor, that you never for a moment would have issued this alternative writ. The people of the State | of California, coming into one of the couts of | | | the State of California, and asking your Honor to fssue a writ of prohibition to prevent them from proceeding in the prosecution of the case in the name of the people of the State of Cali- fornia—John Smith coming into court to pre- vent Jobn Smith from proceeding with the case. The Attorney General, who is the law officer of the State, would not be entitled to a writ, Your Honor wopld say to him, “Step down there and dismiss that case if the court has not jugisdiction.”” The District Attorney of the city agd county of San Francisco, to whom the prosecution of these cases is delegated by the charter, which is the supreme law under the constitution for this city and county, would npt be entitled to this writ, because the same answer would be given to him, ‘‘You have the power to dismiss it”; it is a prosecution in the | name of the people of the State of California, | and if the court has net jurisdiction to pro- | ‘ceed, put your hand on it and do your duty and dismiss it. That is the first proposition | here. The next proposition we have is that the gentleman, and I borrow a word, whom these parties represent—they have gone hot- footed to the hot sands of the southern portion of the State and dragged forth from s official position and asked him to appear outside of the domain of hie own court—has no beneficial in- | terest whatever in the proceedings in this case. How can the District Attorney of Los Angeles County have any beneficial interest in a pro- ceeding that is being prosecuted in the name of the people on a preliminary examination that is being prosecuted in the nmame of the ‘people before a committing magistrate for this county, for the purpose of ascertaining whether or nay, what? Whether or may & crime has been' committed which is triable within this county. That is what section 811 | of the Penal Code says: “When an information | 15 1aid before a committing magistrate of an offerse triable Within his county he shall sub- pena the informant and such witnesses as he may present, take their depositions and issue his warrant, and then proceed and determine Whether or not an offense against the law has been committed.” If it is triable, why then he binds the man over: and the person who | is charged with the offense, he is the person that he s supposed to commit, or, if there s reasonable ground to believe he was guilty of it, then he is relegated to a higher tribunal for trial. A LAW OF ORDER. But the law is an orderable law, a law of R AUGUST 17, 1902 Governor Gage in Police Judge Fritz’s court was stayed. From the remarks made by the court during the argument as to the beneficial interest of Ri in the proceedings the attorneys in the litigation are confident that the motion to dismiss will be‘ granted. The effect of such a decision by Judge Cook will be that the immediate trial of the libel case will be ha.d in San Francisco and not in the home of Governor Gage. In any event the libel matter will be called in Judge Fritz’s court for trial this afternoon. 5 o sam S AP that ‘& District Attorney of one county, who has no power and authority outside of his own county, can put his finger upon, or his nose into, & proceeding that is being prosecuted in good faith by the officer of the law of an- other county,” and say to that county, ‘‘Stop,” is a state of affairs which if tarried out to its logical conclusion would be fraught with con- fusion, and would make confusion much con- foundéd. Why could not the District Attorney of the city and county of San Francisco, with equal right, appear before some of the courts of Los Angeles and seek to obtaln a writ of prohibition against the courts there proceedifig in any of their criminal cases? What right would he have? What beneficial interest can he have? It is alleged in the petition, and his ground for appearing is that the people of the State of California are beneficially interested. How? The peaple of the State of California are beneficially® Interested in determining whether or not the laws of the State have been violated, and it is shown upon the face of the petition that the committing magistrate, Judge Fritz, is sitting for the purpose of determining whether or nay the laws of the State of Cali- fornia have been violated. But we are not, it your Honor please, without authority on this proposition. ‘While I say that it would not re- quire, particularly to one who has had the experlence in criminal matters which, ‘your Honor has, one who both at the practice at the bar and on the bench has had a great deal of experience in these particular matters—I say it does not require anything but a statement of the proposition—or, to use the language of a very eminent and now departed jurist, ‘it is as Dplain as a pike staff’”; and the moment it is stated it is seen. That, your Honor please, disposes of two of the grounds of the motion: First, that the Dis- trict Attorney has no authority fo present this question at all; and that under section 1108 he is not a party beneficlally interested, the code saying that the writ shall be granted upon the application of a person beneficially inter- ested. Now, what interest the District Attor- ney of Los’ Angeles County has in the pro- ceedings the petition fails to show. What in- terest the State of California has in it they also fail to show. But if they say that they have an Interest they show that they have & plain, speedy and accurate remedy at law. All on earth a person has got to do, if he has standing in court sufficient to represent the people of the State of Califofnia in this pro- ceeding, s to exercise that power of repre- sentation in the State of California and dis- miss the proceedings. The District Attorney is & county officer. I haven't cited either that or the section of the Political Code designating the dutles of the Attorney General—section 470 of the Political Code—and also that of the District Attorney. . The Court—That is the one that requires all suits to commence in the name of the people, to be with the consent of the Attorney General, Mr, Preston—To prosecute or defend all causes which the State may be a party to. Mr. Campbell—All causes in the name or on behalf of the -people; and also that he shall appear and defend. 'Now, section 132 in the county government act, says the District At- torney Ig the public prosecutor and must at- tend ‘the courts and conduct,on behalf of the people all prosecutions for public offenses, in- stitute proceedings before the magistrates for the arrest of persons charged Wwith or reason- ably suspected of public offenses, if he has information that such offenses have been com- mitted; and for that purpose, Wheré not en- gaged in criminal proceedings in the Superior Court or in civil cases on behalf of the people, must attend, etc. S QUESTION OF INTEREST! The Court—The question now is, is the pe- titioner a party beneficially interested, or has the right to sue in the name of the people? 1 think that is all, Mr. Campbell—That is all I desire to say on that ‘question in the opening. My assoclate will close, Mr. Nougues—May it please the court, tha gentleman has asked what beneficlal interest this petitioner has. If by beneficial interest is meant monetary interest he has none. But he has the interest which all officers sworn to support the laws and perform their dutles as officers have in the case. These cases the gentleman has cited and which I will let your Honor read, arose on other matters. This s not an action on the return of a writ. It is not a prosecution that the District Attorney is bringing. 1t is a proceeding, it is an applica- tion for a writ of prohibition. Why? He is not making the application in the name of the people of the county of San Diego; he is making it in the name of the people of the State of California. To explain to your Honor, or rather to make clear our DFoposition, as to what right this man has, called beneficial interest. or mot, to ask for this writ, I will read from Section 9 of Article I of the con- stitution, which states, after providing that “every citizen may freely speak, write and publish his sentiments on all subjects,” ete., Eogs on to state: “‘Indictments found or in. formation laid, for publication in newspapers, shall be tried in the county where such news- papers have their publication office, or in the county where the party alleged to be libeled resided at the time of the alleged publications, unless the place of trial shall be changed for cause.” Now, to get my authorities. My interpreta- tion of this section—that is, we contend that / % | PRESTON EXPOUNDS THE PHILOSOPHY + order, and not one of confusion; and to say | under the constitution, In my mind, it is not a statute, it is the constitution that we are talking about; that the exclusive jurisdiction to try a criminal libel is in the court where the people of the State of Californla have 1n- stituted through their proper officials the first proceeding. 5 Mr, Preston—Is that involved in this case? Does your Honor want to review the briefs in the Sloss case here? Mr, Campbell—I didn't touch that proposi- tion. Mr. Preston—We submit that we have here all the authorities used before Judge Sloss. The Court—I don't care tobhear them. I will not interrupt counsel. Let him go on with his statement. 1 shall not pass on the merits of this case on this motion. Mr. Nougues—I am not introducing these au- thoritfes. I am introducing these propositions introductorily to show why this District At- torney of the county of Los Angeles has a per- fect right to come Into this court. He has such beneficial interest as is provided for or intended to be provided for in the statute: not a monetary interest, but such a beneflcial interest as places him in a position’ to bring this action. “And that appears to be practically the main point on which these gentlemen rely. Mr. Preston—In order that the gentleman won't be misled about this thing I will state that the petitioner is not bringing this pro- ceeding as District Attorney; he does not sue ipso facto as District Attorney; he says he is suing as a representative of the people of the State of California. Mr. Nougues—That fs the only way he can appear in court, as I understand it. PRESTON GETS WEARY. Mr. Preston—That is the way he will go out, then. That has nothing to do with this ques- tion of jurisdiction. We are a little weary on that subject, because we have argued it in three or four courts, and we have an objec- tion to taking it up ‘again, unfess your Honor warts to hear it. Mr. Nougues—May it please the court, under the admission made this morning that the court in Los Angeles where this procceding is peuding has under the constitution the peculiar jurisdiction of the actlon, as suggested by the court, and then as I understand the query was put by me, where is the beneficlal interest of this plaintiff in this proceeding which would authorize him to apply for a writ of prohibi- tion? The title is *J. C. Rives, as District Attorney of the county of Los Angeles, State of California, representing the people of the State of California for the purpose of this ap- plication.”” That I judge to be an application by the people of the State, not an application. It is not an application by Mr. Rives person- ally. Now, the District Attorney of a county is the exclusive law officer of that county. . He is the oonstitutional officer. It is his duty to prosecute all crimes by information that may be presented in the county of which he is the attorney. It is his duty to protect the rights of the people of the State guaranteed to them by the constitution; that a certain action shall be prosecuted in a certain court of exclusive jurisdiction; and according to his oath he is to support the constitution of this State. He finds that the constitution of the State is at- tempted to be violated, and it is his duty to in- terpose in a case of that kind; it is his duty to call it to the attention of any court where any action may be pending Wwhich interferes With that constitutional duty. Now the bene- ficial interest in this case is In the people of the State. The people of the State, have a beneficial interest. 1f you confine the mean- ing of “‘beneficial’’ to a monetary construction alone, which it is our contention is not the proper solution, then they have to pay the expenses of the prosecution of that action, and they are beneficlally interested to that exterit to see that it is prosecuted in the proper place, Mr. Preston—I don't understand that this question of beneficial interest, may it please the court, is before your Honor here. It is a question—we claim that the District Attorney of Los Angeles County, if he got here at all, regularly usurped the powers of the Attorney General in attempting to bring an action or to Tepresent the people of the State of California, I understand that is the question before the court, Mr. Nougues—Our contention is that as this District Attorney is representing the people of the State of California, and as the people of the State of California are beneficlally inter- ested in having this proceeding properly con- ducted, the prosecution for the libel, he is sim- ply acting as the agent for the people, and he has a perfect right under any circumstances or In any place or in any court to call attention to any projected invasion of that right.. JUDGE COOK EXPLAINS. The Court—Now, here is the proposition, Mr, Nougues, as it strikes me; that is, without giv- ing it full consideration, but just as I thought of it this morning, it strikes me this way: Granted that the court of Los Angeles has ex- clusive jurisdiction. has exclusive jurisdiction in this case, that jurisdiction which is assert- €d hero 18 an ~asserted jurisdiction. Under those circumstances anything that was done here would be void, would not amount to any- thing. Of course the defendants in this case, unquestionably, if the jurisdiction fs exclu- sively in Los Angeles County, could maintain this action and procure a prohibition to pro- hibit this court from going on with a vold ac- tion, because they would. be harassed by it, and’ they would be beneficially interested in stopping it. But beneficlal Interest- and mere- i B —_— the writ of prohibition ves How- cerned, would have thelr remedy there. ever, I will hear from Mr. Preston. . I will hear what you have to shy on that. PHILOSOPHY OF THE LAW. man tire -. Preston—The gentle: is in ent Ixr%rm‘ce apparently of the philosophy of the law upon Which the codes were founded and which has come to us in a direct unbroken Ine of decisions trom.the comman law. Under the common law_the Attorney General represents the crown. He was the executive officer o the crown; he was the executive officer of l: Government; and -as such_then and.as suc now he alone reprgsents the sovereikn people of the State of Caiifornia. It Is by analogy the writ of quo warranto, the right toinquire into a proceeding. At common law it coul only be sought at the behest of the crown ft- self, because it was' a_ soveréign prerogative. and the crown directed its executive judid! officer to inquire into the alleged abuse of the soverelgn franchise; and we got the writ of quo warranto; and the common law is_en- grafted upon the codes of the State of Call- fornia to-day, because it is only on the rela- tion of the Attorney General, in the name of the sovereign people of the State, as it used to be in the name of the sovereign of Great Brit- ain, in the time of the common law, that you can inquire into any of these prerogative Writs: and it is only the sovereign people, through their representative, the Attorney General, who represents the man in Modoc and the man in San Diexo, the man in San Joaquin and the man in San Francisco, who can invoke the majesty of the sovereign people of the State of California, and not Mr. Rives, a District ‘At- torney down in the home of Henry T. Gase, in the county of Los Angeles, in the southern part of the State of, California.; It is a mis- ASAIN APPEAR= ED For F E Punne | ATTORNEYS WHO ARGUED UPON THE MOTION TO DISMISS DISTRICT ATTORNEY RIVES' WRIT OF PROHIBITION AND THE JUDGE WHO WILL RENDER A DECISION THEREON TO-DAY. * ly interest in a case are two different things. Ot course the people are interested in a case as well as the defendant. But under these statutes. as to these extraordinary remedies, the statute provides that they must have bene- ficlal interests; that is, there must be some ben- efit to come fo them by the granting of the writ; there must be some good; it may not be a financial good, for a monetary consideration, but there must be some good to come to them by the granting of the writ. Now, what good could come to the people as the prosecutor any more than would come to the Governor, to the complainant as the prosecutor? Now, the Su- preme Court says that the complainant himself can obtain no benefit by such a proceeding as this. Now, if the complainant in a libel case —of course, whatever interest he has is in his character having been assailed—the people have almost an identical interest with the complainant, in that their law has been dis- obeyed by the defendant. Now, where do they stand in any different position’ from the com- plainant? Granting that the District -Attor- ney had the right to institute the proceedings in the name of the people that he, for in- stance—that these proceedings were institvied by the Attorney General in the name of the people themselves, where do the people, whose only injury is a violation of the law, where would they have any benefit to come from the granting of this writ, more than the com- plainant himself would have? The Supreme Court says_that the complainant has not any interest. How do the people have any as the prosecutor? That is what strikes me. I may be_wrong. Mr. Nougues—In reply to the suggestion of your Honor I will advance this proposition: that the libeled party in a criminal action has no beneficlal interest, monetary or otherwise. The people of the State of California have a beneficial Interest in this; the people of the State have a pecuniary interest in this mat- ter, If this action can be prosecuted in San Francisco notwithstanding the court in San Pedro, in Los Angeles, has exclusive jurisdic- tion, it would increase somewhat the taxes of the clty and county of San Francisco. The Court—It does not increase the taxes of _the people of the State. Mr. Nougues—They are part of the people of the State. The Court—Well, the District Attorney of | Los Angeles County does not represent part of the people of the State. Mr. Campbell—That might answer if some taxpayer of the city and* county of San Fran- clsco would come in and say that, Mr.- Nougues—Your Honor is asking about beneficial interest. The Court—Now, another proposition: Dis- trict Attorneys, under the law—I was trying to put my finger on the subdivision of the statute—it says somewhers that the District Attorneys are-all under the' supervision of the AR bl That it r. Campbell—That is section 470 E e Consi—rto ts under e e urt—He is under the supervision of the Attorney General. The Attorney General has supervision of all the District Attorneys, and it is in his, power to direct any District Attorney to dismiss a proceeding or to insti- tute any proceeding. If that is so, and two deputies, or who are not named as deputies, but Who . virtually are under his = direction, are fighting at cross purposes, it strikes me’ that one to apply to the other. that one could ap- DIy to him to stop the other, and thereby the Deople. as far as:belng prosecutors are con- that [ conception, may it please the court, whole philosophy of the law, and an attempted literal reading of the codés which have no meaning and can bear no such construction to a man grounded in the common law upon which they are founded. Section 182 of the Code of Civil Procedure provides that If an application for an order is made to a Judge of a court, is refused in whole or in part, or is granted con- of the | | ditionally, no subsequent application for the same order shall be made to any court, or any other Judge, except to a higher court; but nothing in this section applies to motions re- fused for informalities in the papers or pro- ceedings necessary to obtain the order. Now, by a decision of this court, by a decision of Judge Sloss, a decision of the Superior Court of the city and county. of San Franciseo, after an argument lasting two days, in which the so-called people of the State were represented by able attorneys, and there was. an, exhaustive examination of the authorities, there was spread upon the files of the Superior Court of the eity and county of San Francisco a decision which stands as the law, which is explicit, which is clear, which is lucid and which is supported by authorities, and this decision wipes out the eRtire argument of the very learned counsel on the other side, unless by a miserable paltry substitution of the name of a District Attorney pretending to represent the sovereign people of g::a State they have dodged section 182 of the . Mr. Campbell—Read section 183. ORDER FOR WRIT ATTACKED. Mr. Preston—Now, section 183, if your Honar please—they talk about writ. = There is an order for the writ, and we are attacking the order. We say that if your Honor had had the arguments pro.and con, that if your Honor had heard them— The Court (interrupting)—There is no need to argue that proposition. I am satisfied that 1 can entertain this motion. Mr. Preston—The gentleman is not clothed Wwith any legal panoply or coveri ‘which can- not be removed, and his argumehts are not such as they cannot be attacked because of his relying on a letter-perfect acceptance of certain sections. We are attacking the order, then, and it is that at which this motion i3 leveled; it is that which we attack and not the writ itself. Now, section 183—these people would be in contempt were it mot for this change of plaintiffs. If it had not been for the substitution of Mr. Rives, under section 183, they would have been in contempt of the Superior Court of tke -city and county of San Francisco; and I _doubt . very serfously that they would have been in contempt of the Supreme Court of the State of California, because every question that is being presented to your Honor here, except the right of the District Attorney of Los An- geles County to usurp the name of the sover- elgn people of the State has been passed upon. The Court—Mr. Preston, that is the only point on which I am hearh that is the only point I am considering. Mr. Preston—There {s another section of the Code that I wanted to cite your Homor to. Then I will only cite it argumentatively, so as to make a complete answer to the technical objection made by the gentleman who contends that we are limited by a hard and fast rule here on this motion and must be guided en- tirely by a rule of practice which is laid down in the Code of Civil Procedure. I wish to call your Honor's attention to the sections ng any argument; FEF ;é b1 74, Bl - Xy VES WRIT Attorney General Is Alone Empowered to Appearfor People District Attforney of Los Angeles Drawn In to Secure Delay If Prohibitive Werit Is Dismissed Case Will Begin To-Day k which he did not point out, 1108 and 1110 of the Code, which make all the provisions of part II of this Code applicable and constitute the rule of practice in the proceedings mes- tioned in this title.” So that the whole Code is thrown open as.a question of procedure, may it please the court. Now, I ought to make one more point before I take the other ques- tion up, and that i3 that there is no affidavit here, may it please the court; that this writ of prohibition, that this order granting thia writ of prohibition, was not made upon an .,;. Saavit; apd it s a_very singular stssoncer- tion of e terms ot the Code. re (¥ a signature. I don’t know whether it is the rea: signature of Mr. Rives or not, in the original application. I don't know, and I don’t think the court knows whether the Distriet Attornéy of Los Angeles County, as a matter of fact, even signed the petition for this Writ. NO AFFIDAVIT FILED. t by a very curious misconception he did nb?'iefl[’s/ it, and he did not make the affidavit required, and. your Honor, I will submit, on the record here, has ordéred an alternative writ of prohibition to issue without any affi- davit as required by the Code. And as an elucidation of that proposition I will state that there is an ordinary verification—an ordinary verification made to a petition, and that ordi- nary verification is-imade by Mr. Lefmien, and Mr. Lermen says; in the, nsual form, that the same is true o his owt knowledge except as to matters siated o> informatien and. belief, and as to those matters that he bélieves it to be true; and in the sald proceeding and matter affiant was and is an attorgey of the petitioner J. C. Rives; that the said J. C. Rives is absent from the city and county of San Francisco, which said ciiy and county is the residence ot atfiant; and for_these reasofs afflant makes this verification. Now, the Cods provides that the writ of prohibition issued- The Court (interrupting)—Issue upon the atfl- davit of the party beneficially interested. Mr. Preston—Shall lssue upon the afSdavit made by the party beneficially interésted; and 1 submit to your Honor that there is no affida- vit here by Mr. Rives at all; and if your Horor will_take section 446 of the Code: reisting to verificatiohs by absentees you will see that there is no such provision applicablée. outside of the _hard and fast rule .invoked by the . counsel of _the other _side. Section 446 provides for a pleading to be subscribed, and then In all cases of the veri- fication of a pleading the affidavit of the pasty must state that he ls making it, and if he is absent and cannot make. it, theg. somebody ‘makes the affidavit on his behalf. But_there is no affidavit before the court. Your Honar ordered this writ of prohibition to lssue upen an’ unverifled_petition of Rives, verified in. a | case not provided for by section 446, by anotier person. - Therefore-your Honor issued this writ of -prohjbition without the' affidavit required by law, and that is the fact, and I suppose that it is the end of the proceeding. The Court—Section 1103 says it must be s sued upon an affidavit. Mr. Preston—Issued upon an affidavit. There is mo affidayit here. The Court—On the application of a person beneficially interested. Mr. Preston—Well, there Is no Adavit e L A P ‘_{gé The Court—It does not say that It must be by the person beneficially interested... Mr. Preston—But there is no affidavit. Rives makes the petition #fid Lermen says: he makeg( the affidavit because Rives 8 out of the county. Section” 446 doés’ not” malk® any provision for an affidavit by Mr. Lermen. The Court—The Supreme Court.has held jn- mandats and other cases of that' kind where there is a petition, an affidavit, which ' is to be sworn to by the party who files the peti- tion — Mr. Preston—I would not make the point if it were sworn to by the petitioner; but Mr. Rives is not here, and this petition IS upon | application — The Court (interrupting)—I see the proposi- tion as you intend it. Mr. Preston—And without an affidavit your Honor:.has_granted this prerogative writ, The Court—Let the matter be submitted. [ will just suggest to counsel that I think it i a case where I should give a short opinion, and L1 have it ready fo-morrow morning’ at 10 o’clock. GAGE IS SNOWED UNDER. Defeat in Napa County Proves to Have Been Overwhelming. NAPA, Aug. 6.—Returns have been re- ceived here from twenty out of the twen- ty-six preeincts in Napa County.and show an overwhelming victory for the anti- Gage tickets in Tuesday's - primaries, Napa County will send a solid anti-Gage delegation to the State convention. The Gageites were snowed under by a vote of two to one. At least forty of the sixty- six delegates that will sit in the county convention will insist upon sending-to the State convention delegates pledged® to work for Gage's defeat. Dr. Hénmnessey is making a hard fight to be ‘eléeted a delegate to Sacramento, but after yester- da ds Waterloo he is not likely to suc- ceed. A ——— In ‘less than' & WeeR recently pineapples reached New York. 7,000,000 DR. PIERCE'S REM. 2 2 . TIRED OUT. There’s many a fanmer’s wife sitson the e it nowmg“ if there was not left in her. But porch in the mer eveni effort ¥ oF il o. B £ ° & ; i moving about, this tired woman feels more acutely the aching back and throbbing nerves. Sick women, hundreds of thousands of them, have been made well by the use of Dr. Pierce’s Favorite Prescription.” It establishes ity, dries weakening drains, -heals inflammation and ulcera- tion and cures female weakness. "Words caumot tell what I suffered for thin teen years with uterine trouble and g- down pains through my hips and back,” writes Mra. John Dickson, of Crenfell, Assiniboia Dist., - Ter. “I can’t describe the mi: it was not eat is sent free on