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Appendix to the Journals of the Senate and Assembly of the ... session of the Legislature of the State of California (Volume 1885v.1) online

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1884.



REPORT.



Attorney-General's Office.
To his Excellency George Stoneman, Oovernor of California :

As required by law I submit a report of the condition of affairs in
this office, with a copy of the docket.

When I entered upon the discharge of the duties of this office vio-
lations of law were found to exist habitually, and to have been
practiced for years, in several departments and offices of the State
Government. In some of these cases criminal proceedings were
barred by statute.

commissioner of immigration.

The Commissioner of Immigration then in office, as well as his
immediate predecessor, had collected large sums of money, which by
a singular misconstruction of the statutes creating and regulating the
office, he refused to account for or pay over. Civil suits and criminal
proceedings were instituted against both Mr. Van Ness and Mr. Bun-
ker. In the case of Mr. Van Ness the criminal proceedings were dis-
missed by the Police Judge, and the civil judgment, obtained against
him in the Superior Court, is now on appeal in the Supreme Court.
Mr. Bunker was held to answer upon a charge of felony, but upon his
payment of the civil judgment against him, and in view of the very
defective statute regulating the office of Commissioner of Immigra-
tion, the information was dismissed on motion of the Attorney-
General.

state prison directors.

The management of the State Prisons was reported to be most irreg-
ular. Charges were formulated against the Directors as required by
law and filed with the Governor. After which and on examination
occupying about six weeks, the Directors were removed from office.

HARBOR commissioners.

Abuses and peculations were discovered in the office of Harbor
Commissioners, which led to the prosecution for felony of the Secre-
tary of the Commission and his assistant and of several wharfingers.

The Secretary and assistant and one wharfinger were convicted.
The Secretary and wharfinger are in the State Prison; the Assistant
Secretary is in the county jail, his case being still before the Supreme
Court. Civil suits have been brought upon the bonds of the con-
victed parties and also against the Commissioners and their bonds-
men for the money taken from the State.



SECRETARY OF STATE.

In the office of Secretary of State very large defalcations were found.
The Secretary of State and his deputy have been arrested, and charges
of felony are pending against both. Civil suits have also been com-
menced on their bonds.

An examination of the books of the office disclosed that under
the administration of Governors Booth and Pacheco, frauds in the
same office involving large losses to the State had been committed.
In this case the statute of limitation barred a criminal prosecution;
but civil suits have been commenced against the ex-Secretary on his
bonds.

CLERK OF SUPREME COURT.

The accounts of the Clerk of the Supreme Court were found to be
most unsatisfactory, and suit has been brought for a large deficit. It
is believed that all the money lost to the State in these cases will be
recovered, but the process is slow and very laborious.

POLICE COMMISSIONERS OF SAN FRANCISCO.

To the end that the police force of San Francisco might be as far
as possible removed from politics, the Legislature, prior to the adop-
tion of the new Constitution, intrusted the appointment of Police
Commissioners to three Judges of the District Court. By the new
Constitution, District Courts were abolished. When the term of office
of the first Commissioners appointed by the Judges of the District
Court expired, no provision having been made for the appointment
or election of their successors, and the original appointing power being
out of existence, the question arose whether a vacancy was caused by
the expiration of the term which could be filled by the Governor.
This office advised that no vacancy was caused b}^ the lapse of time.
Upon the application of one Hoy who claimed to have been elected
Police Commissioner by vote of the people, I allowed the name of the
State to be used in a proceeding before the Supreme Court to test the
question of the legality of the tenure of the incumbent as well as the
right of the claimant. The Supreme Court decided that the incum-
bent was lawfully in office, and that the claimant had no right in the
premises. While this case was yet pending, the Governor appointed
one Hinton Police Commissioner. The application of Hinton for
power to use the name of the State in a proceeding to oust one of the
present incumbents was refused by this office. The order of the Gov-
ernor to the Attorney-General to institute the proceeding was also
respectfully resisted, but upon a mandate of the Supreme Court was
instituted and prosecuted before the Superior Court, and judgment
given in favor of the incumbent and against the appointee of the
Governor. From this judgment, believing it to be law, I have not
appealed and shall not appeal.

RAILROAD TAX CASES.

When I entered upon the duties of this office I found that suits
had been brought for the entire amount, taxes, penalties, interest, and
attorney's fees due from railroads operated in more than one county
in this State, except a few cases which I have since brought and dis-



posed of, as I will state in another place. I found that nearly all these
cases had been removed from the State Courts to the United States
Circuit Court, and that the Attorney-General of this State was
charged with control of all this litigation. I found that compromises
of the demands of the State had been made by Boards of County
Supervisors and District Attorneys. My predecessor in office had
endeavored to set aside such compromises, and I pressed the motions
for that purpose until the removal of ihe cases, in which the motions
were pending, into the Circuit Court, compelled me to wait the decis-
ion of the questions involved in all the cases by the United States
Supreme Court before any correction of the "illegal compromises will
be possible.

From a great number of suits brought by the counties against the
railroads, the suit of San Mateo County was selected (before I entered
upon this office) as a test case, at least so far as the construction of the
Federal Constitution was involved. That case was tried in the Cir-
cuit Court and decided adversely to the State. An appeal was taken
and the cause advanced upon the calendar of the United States Su-
preme Court, very elaborately argued, and submitted. No decision
was given, but after some considerable delay an intimation, upon
what authority I do not know, was given to this office that the Su-
preme Court required the trial of six additional cases that all the
issues might be fully before it. The six cases were tried in the United
States Circuit Court, and substantially the same judgment was ren-
dered as in the San Mateo case. From these judgments I have caused
appeals to be taken. A motion to advance all these cases on the cal-
endar has been made and denied.

After the decision of the last six cases proposals of compromise in
all the remaining cases were offered by the railroad companies and
rejected. In a few days after this negotiation was made public a
newspaper {Chronicle) suggested a settlement of all the tax cases by
a payment by the railroad of the- face of the assessment for the years
1880-81-82. Without giving the reason it is enough to say the Attor-
ney-General favored this proposition, although it contemplated a
remission of the penalties, interest, and attorney's fee. After much
and somewhat acrimonious discussion this plan was abandoned.

The Attorney-General then called up all the cases upon the docket
against the railroad companies for the years 1880-81-82 for trial in the
Circuit Courts (except the cases which were affected by the attempted
compromises of the District Attorneys and Supervisors, which were
left as they were on the docket). The Court pronounced judgment
against the plaintiff, as it had done on the former trials. The attor-
ney for the railroad then moved to set aside this judgment, and have
judgment entered in favor of the plaintiff for the face of the tax —
stating in open Court, as a condition of the judgment for the face of the
tax, that it did not bar the right of the State to appeal to the United
States Supreme Court on the question of penalty, interest, and attor-
ney's fee, or in any way affect the rights of the State upon those issues.
With this understanding, which was not entered on the minutes, but
formally and fully expressed in a stipulation between the parties, the
Attorney-General consented to the judgment. The taxes, amounting
to $470,475 08, were paid, and the judgment satisfied. The Controller
of State notified the county officers not to receive the money due, as
he would not settle their accounts. Notwithstanding this menace, all
the counties interested have received their proportions, amounting to



6

$329,039 88, except the Counties of Placer, San Joaquin, and Contra
Costa. I have on hand, subject to their order, $141,435 20.. I have
some months since, sued out a mandate from the Supreme Court, to
compel the County of Contra Costa to receive the sum to which it is
entitled. Every technical defense has been interposed, and, as yet,
no decision has been given.

Upon the rendition of these judgments, and their satisfaction by
this office, the Legislature was convened in extra session, and its
attention particularly called to the "compromise" which they were
informed by the executive message had been effected, to the great loss
of the State. An investigation was ordered by the Legislature, and
prosecuted before the Judiciary Committee of the house of repre-
sentatives. A majority of the committee reported that the interests
of the State had been protected by an appeal properly taken. A
minority of the committee reported exactly the reverse, and, following
the spirit of the executive message, pronounced the Attorney-General
guilty of effecting a compromise of the dues to the State of many
hundreds of thousands of dollars. The house of representatives
rejected the report of the majority and approved the report of the
minority, and, by a vote of forty-seven to fifteen, pronounced a cen-
sure, of which the brutal cruelty was only to be excused by its brutal
ignorance. The only question involved was the validity of the appeal.
As soon as possible, the appeal was perfected in one of the cases in
which the alleged compromise had been made (San Bernardino v.
Railroad Company), and placed upon the calendar of the United States
Supreme Court. A motion was made to strike that case from the
calendar, on the grounds set forth in the minority report, and the
Court unanimously, and from the Bench, declared the appeal regularly
taken, completely sustaining the majority of the Judiciary Committee,
and this office. To avoid the expense of appeals in all the cases in
which the course above indicated was pursued by me, a stipulation
has been entered into by which all those cases will abide the decision
in the one case in which an appeal has been taken.

The taxes on the railroad company for the year 1883 having become
delinquent, suit was brought under a new Act (Stat. 1883) by attorneys
appointed by the Controller. These suits were removed from the
State Court to the United States Circuit Court, and came "under the
control of this office. A tender of sixty per cent of the face of the tax
had been made by the defendant. I moved the Court for an order
against defendant, to make good the tender, which was granted by the
Court, and obeyed by defendant. The money, amounting to $333,-
377 10, was paid to me, which, with the balance from the years 1880-
81-82, leaves in my hands the sum of $374,812 30. The suits were
then submitted upon the evidence given in the former trials, with
some additional evidence, made necessary by certain changes in the
methods of assessment and judgment entered for defendants. I have
not incurred the expense of taking appeals in these cases, as it seems
certain that some definite settlement of the great questions between
the railroad company and the State Avill be reached before the time
limiting the right of appeal lapses. If necessary, I can and will take
them up before my term of office expires. Under an amendment of
the revenue law, the large sum collected for the tax of 1883 is pay-
able to the Treasury of the State, but the Controller has declined to
receive it.



Feeling how worse than useless any suggestions from this office in
regard to the many and pressing exigencies of the State would be,
I close this report with congratulations upon the success of the
administration in borrowing at high interest from parties debtors to
the State money to support the State Prisons, in exhausting the fund
sacred to the education of the people, in flooding the country with
warrants upon the treasury discounted at ruinous rates by employes
of the State, while more than enough coin to meet the obligations of
the State lies without interest and almost without security in this
office.

I have the honor to be, your obedient servant,

E. C. MARSHALL,

Attorney-General.



DOCKET



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Memorandum of Judgment in
Supreme Court.








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Petition for leave to sue in name of
The People filed January 12, 1883.
Bond approved and filed January
22, 1883. Remission granted Janu-
ary 12, 1883.


Petition for leave to use name of The
People filed January 23, 1883.
Bond approved and filed January
23, 1883. Leave granted January
23, 1883.


Petition for leave to use the name of
The People filed and leave granted
January 24, 1883. Bond approved
and filed January 24, 1883.


Mode of Prosecution and
Nature of Demand.


By complaint to deter-
mine title to office of
Justice of the Peace for
the TownshijJ of Stock-
ton.


Application for writ of
mandate to compel de-
fendants to issue certifi-
cate of election as Su-
pervisor in City and
County of San Fran-
cisco to relator.


Complaint to determine
right of defendant to
exercise office of Col-
lector of Delinquent
Taxes, etc., of San Ma-
teo County.


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In what County

Tried aud'Ad-

judged.


Superior Court
of San Joa-
quin County.


Supreme Court
of State of
California.


Superior Court
of San Mateo
County.


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The People, etc., ex
rel. J. H. Budd,
Plaintiffs, vs. A.
B. Treadwell, De-
fendant.


The People, etc., ex
rel. B. Dougherty,
Plaintiffs, vs.
Board of Election
Commissioners.
J. J. Cofley, at-
torney for Plaint-
iffs.


The People, etc., ex
rel. J. H. Hatch,
Plaintiffs, vs. H.
W. Walker, De-
fendant. George
W. Fox, attorney
for Plaintiffs.



11



















Petition for leave to sue in People's
name filed February 5, 1883. Leave
granted February 5, 1883.


Petition for leave to use name of The
People filed January 30, 1883.
Leave granted February 2, 1883.
Bond approved and filed February
in, 1883.


Petition filed and leave to use the
name of The People granted Janu-
ary 25, 1883. Bond approved and
filed March 2, 1883.


Petition filed and leave to use the
name of The People granted Janu-
ary 25, 1883. Bond approved and
filed February 26, 1883.


Complaint to have de-
fendants' franchise for-
feited.


Complaint to remove ob-
struction in a public
highway.


Complaint to determine
title to office of Tax
Collector of Santa Bar-
bara County.


Complaint to determine
title to office of Audi-
tor of Santa Barbara
County.


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3


Superior Court
of San Mateo
County.


Superior Court
of Alameda
County.


Superior Court
of Santa Bar-
bara County.


Superior Court
of Santa Bar-
bara County.


The People, etc., ex
rel. George H.
Buck, Plaintifl's,
vs. The Redwood
City and San Ge-
goria Turnpike
Company, Defen-
dants. George H.
Buck, attorney for
Plaintiffs.


The People, etc.,
ex rel. Fassett,
Plaintiffs, vs.
John Emart,"S et
al., Defendants.
Whitney & Whit-
ney, attorneys for
Plaintiffs.


The People, etc., ex
rel. T. H. Hicks,
Plaintiffs,vs. Rob-
ert J. Broughton,
Defendant. R. B.
Canfield, attorney
for Plaintiffs.


The People, etc., ex
rel. L. D. Lilly,
Plaintiffs, vs. A.
B. Williams, De-
fendant. R. B.
Canfield, attorney
for Plaintiffs.



12



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Petition for leave to use name of The
People filed and leave granted Feb-
ruary 24, 1883. Bond approved and
filed February 24, 1883.


Petition for leave to use the name of
The People filed and leave granted
February 24, 1883. Bond approved
and filed February 24, 1883.


For record of this action refer to At-
torney-General's Docket, Jo Hamil-
ton, p. 328.


Petition iov leave to use name of The
People filed March 7, 1883. Bond
approved and filed and leave grant-
ed March 7, 1883. ,


Mode of Prosecution and
Nature of Crime.


Complaint to determine
title to the office of
County Recorder of
Santa Barbara County.


Complaint to determine
title to the office of
County Recorder of
Plumas County.




Complaint to determine
title to office of Justice
of the Peace, Scott Val-
ley Township.


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In what County
Tried and Ad-
judged.


Superior Court
of Santa Bar-
bara County.


Superior Court
of Plumas
County.


Superior Court
of Sacramen-
to County.


Superior Court
of Siskiyou
County.


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]


The People, etc., ex
rel. Henry Stod-
dard, Plaintiffs,
vs. A. B. Wil-
liams, Defendant.
J. T. Richards, at-
torney for Plaint-
iff's.


The People, etc., ex
rcl. J. A. Orr,
Plaintiff's.vs. Fen-
ton P. Whiting,
Defendant. R. II.
F.Variel, attorney
for Plaintiffs.


The People, etc.,
Plaintiffs, vs. Rob-
ert Gardner, Edgar
Mills, and Mark
Hopkins, Defend-
ants.


The People, etc.,
ex rel. J. A. Bow-
doin, Plaintiffs,
vs. J. S. Burge,
Defendant.



13



















Petition for leave to use name of The
People filed March 9, 1883. Bond
approved and filed and leave grant-
ed March 9, 1883.


Complaint filed April 3, 1883. Sum-
mons served April 5, 1883. Answer
for People, April 5, 1883.


Petition for leave to use name of The
People filed April 26, 1883. Bond
approved and filed and leave grant-
ed April 20, 1883.


Petition for leave to use The People's
name filed June 2, 1883. Bond ap-
proved and filed and leave granted
June 2, 1883.


Complaint to determine
title to office of Treas-
urer of said county.


Action for the partition
of real estate in which
the State has an inter-
'est.


Complaint to determine
title to office of Police
Justice of the City of
San Jos^.


Complaint to determine
title to office of Inter-
preter for the Criminal
Courts of San Fran-
cisco.


>


Civil.


>




Superior Court
of Del Norte
County.


Superior Court
of Santa Bar-
bara County.


Superior Court
of Santa Clara
County.


Superior Court
of San Fran-
cisco.


The People, etc.,
ex rel. George W.
Tack, Plaintiffs,
vs. Wm. Saville,
Defendant. L.F.
Cooper, attorney
for Plaintiffs.


Jose Maria Rochin,
Plaintiff, vs. Es-
tanislausCordera,
The People, etc.,
Defendants.


The People, etc.,
ex rel. R. B. Buck-
ner, Plaintiffs, vs.
Wm. P. Veuve,
Defendant. W.
B. Hardy, attor-
ney for Plaint-
iffs.


The People, etc.,
ex rel. Andrew
Glover, Plaintiffs,
vs. Geo. J. Becker,
Defendant. C. B.
Darwin, attorney
for Plaintiffs.



14



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Memorandum of Judgment in
Supreme Court.








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Petition for leave to use The People's
name filed June 14, 1883. Bond ap-
proved and filed and leave granted
June 14, 1883.


Petition for leave to use name of The
People filed June 18, 1883. Bond
approved and filed and leave grant-
ed June 18, 1883.


Petition for leave to use The People's
name filed and leave granted Sep-
tember 12, 1883.


5 2

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Complaint to have fran-
chise of defendants for-
feited.


Complaint to determine
right of defendants to
exercise franchise of
collecting tolls on the
Amador and Nevada
wagon road.


Comjilaint to have fran-
chise of defendants for-
feited.


II
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3





In what County
Tried and Ad-
judged.


Superior Court
of San Fran-
cisco.


Superior Court
of Amador
County.


Superior Court
of Los Ange-
les County.


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The People, etc.,
ox rel.B. F.Ellis,
Plaintiffs, vs. Po-
trero and Bay
View Railroad
Company, De-
fendants. J. P.
Meux, attorney
for Plaintiffs.


The People, etc.,
ex rel. William R.
Williams, Plain-
tifts, vs. John
Ilorscley, Peter
Fagan, and Dan.
A. Frazier, De-
fendants. Gray
4fe Reed, attorneys
for Plaintiffs.


The People, etc.,
ex rel. W. D. Ste-
jihenson, Plaint-
iffs, vs. The Sixth
and San Fernand
Street Raili'oad
Company, De-
fendants. W. D.
Stejihcnson, at-
torney for Plaint-
iffs.



15

















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Eh


Petition for leave to use The People's
name filed July 23, 1883, Bond
approved and filed and leave granted
July 23, 1883.


Pe^^ition for leave to use the name of
The People filed and leave granted
June 28, 1883,


Petition for leave to use name of The
People filed May 12, 1884. Bond
approved and filed and leave granted
May 12, 1884.


Cause submitted on agreed statement
and judgment for defendant Janu-
ary 28, 1884. Notice of appeal
served and filed February 25, 1884.


Complaint to determine
right of defendant to
office of Director of the
Gold Lead Gold and Sil-
ver Mining Company.


Intervention to prevent
either plaintiff or de-
fendant from purchas-
ing certain State lands.


Petition for injunction to
prevent defendant from
usurping franchise of
collecting tolls on said
road.


Petition to prevent de-
fendant from declaring
dividend from uncol-
lected interest.




3


5




Superior Court
of San Fran-
cisco.


Superior Court
of Santa Cruz
County,


Superior Court
of Mendocino
County,


Superior Court
of San Fran-
cisco.


The People, etc.,
exrel. John Culli-
gan. Plaintiffs, vs.
Andrew Charles,
Defendant. A. F.
Morrison.


W. T. Peabody,
Plaintiff; vs. A.
F. Benjamin, De-
fendant; The Peo-
ple, ex rel. G. W.
Prince, Interven-
ors. S.O.Hough-
ton, attorney for
Interveners.


The People, etc.,
exrel.A. F.Rede-
meyer, Plaintiffs,
vs. The Anderson
and Ukiah Val-
ley Road Compa-
ny, Defendants.
J. A. Cooper, at-
torney for Plaint-
iffs.


The People, etc.,
ex rel. E. C. Mar-
shall, Attorney-
General, Plain-
tiff's, vs. San Fran-
cisco Savings
Union, Defend-
ants.



16



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stage of rroceodinge in Coiu-t bolow.


Petition for leave to use The People's
name filed and leave granted No-
vember 27, 1883. Bond approved
and filed December 4, 1883.


Petition for leave to use name of The
People filed June 15, 1884. Bond
approved and filed and leave granted
June 15, 1884.


Petition for leave to use name of The
People filed and leave granted Jan-
uary 15, 1884. Said action has since
been dismissed by Attorney-General,
relators contesting his power to dis-
miss.


Petition for leave to use name of The
People filed and leave granted Jan-
uary 15, 1884. Said action has since
been dismissed by Attorney-General,
relators contesting his power to dis-
miss.


■3

3
.2 .§

r


Complaint to determine
right of defendant to
office of Reporter of
Police Judge's Court of
San Francisco.


Comf)laint to have de-
fendant's franchise for-
feited.


Complaint to annul pat-
ents to certain lands
held by defendants.


Complaint to annul pat-
ents to certain lands
held by defendants.


0=3


5


Civil.


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3


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5


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211

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Superior Court
of San Fran-
cisco.


Superior Court
of Trinity
County.


Superior Court
of Tulare
County.


Superior Court
of Tulare
County.


P

O
H


The People, etc.,
ex rel. Frank Ver-
non, Plaintiffs, vs.
W. O'Connor.


The People, etc.,
ex rel. Fordyce
Bates, Plaintiff's,
vs. Weaverville
and Minersville
Wagon Road
Company, De-
fendants.


The People, etc.,
ex rel. E. J. Van
Valer, Plaintiff's,
vs. Elias Jacobs,
et al., Defend-
ants. Lattimer <fe
Morrow, attor-
neys for Plaintiff's.


The People, etc.,
ex rel. E. J. Van
Valer, I'laintiffs,
vs. C. W. Clark,
Defendant.



I



17







Defendant
paid $19,-
054 66 Jan-
uary 31, '84.
Recovered,
under exe-
cution, $1,-



Online LibraryCalifornia. LegislatureAppendix to the Journals of the Senate and Assembly of the ... session of the Legislature of the State of California (Volume 1885v.1) → online text (page 20 of 83)