Garoutte, J., concurring. This proceeding is an application for a writ of prohibition requiring the judge of department No. 6 of the superior court of the city and county of San Francisco to refrain from proceeding further in the trial of one Elwood Bruner, upon the ground that such course would be in excess of the jurisdiction of the court, the alleged indictment upon which the trial is predicated having no validity whatever, because found and presented by a body of men not a grand jury.
The questions presented upon this hearing are very important, and in some respects may be considered quite novel, when precedent is sought in the authorities of this state. But neither the novelty nor the importance of the matter under investigation demands that its final determination should be reached otherwise than by a most careful consideration of principle and authority.
In this case it is so apparent that the court acted without its authority in the appointment of an elisor that the matter demands no extended consideration. Section 4192 of the Political Code reads: “Process and orders in an action or proceeding may be executed by a person residing in the county, designated by the court, the judge thereof, or a county judge, and denominated an elisor, in the following cases: .... 3. When it appears by affidavit to the satisfaction of the court in which the proceeding is pending, or to the judge thereof, that both of those officers [sheriff and coroner] are disqualified, or by reason of any bias, prejudice, or other cause, would not act promptly or impartially.”
[258]The impanelment of a grand jury is a proceeding, within the provisions of the foregoing section, and it is conceded that the sheriff labored under no disqualification; consequently the contingency for the appointment of an elisor in this case never arose.
Section 226 of the Code of Civil Procedure reads: “ Whenever jurors are not drawn or summoned to attend any court of record or session thereof, or a sufficient number of jurors fail to appear, such court may order a sufficient number to be forthwith drawn and summoned to attend the court, or it may, by an order entered in its minutes, direct the sheriff, or an elisor chosen by the court, forthwith to summon so many good and lawful men of the county .... to serve as jurors, as may be required, and in either case such jurors must be summoned in the manner provided in the preceding section.” Section 242 of the same code provides: “When, of the persons summoned as grand jurors and not excused, nineteen are present, they shall constitute the grand jury.....If less than nineteen of such persons are present, the panel may be filled as provided in section 226 of this code.”
Conceding that the provisions of the Political Code quoted have no application to the matter of the impanel-' ment of a grand jury, and that section 226 of the Code of Civil Procedure is alone controlling, still, I have no hesitation in saying that, under that section, the court has no power to appoint an' elisor, unless the sheriff is disqualified. From any point of view taken, it is the necessary conclusion that the proper construction of section 226 is, that the court may appoint an elisor only when the contingency has arisen, whereby the officer elected by the people to perform such service, and which service is a duty enjoined upon him by statute, has become disqualified to act in the matter. The word “ elisor ” is a technical, legal word, with a technical, legal meaning,—a meaning definitely and uniformly settled by all the authorities; and under elementary rules of construction, such meaning must attach to it in this section of the code.
[259]Ail elisor is “ an elector chosen by a court to return a panel of jurors, where the sheriff and the coroner are disqualified.” (Anderson’s Law Dict.)
It is not necessary to amplify upon the necessity in the interest of good government for a strict construction of the law pertaining to the selection of jurors. It is the spirit of the entire law pertaining to the subject that the names of the jurors, both grand and petit, should always be drawn from the box, rather than that the great responsibility should be cast upon any officer of going out upon the highways and byways, and, of his own choice and will, selecting jurors. Our present law, in many essential features, is the outgrowth of an act of the legislature found in the Statutes of 1857, page 168, which provided, among other things, that all grand jurors, and all trial jurors in criminal cases, without exception, should be drawn from the box. This act of 1857 was the direct result of the gross failure of justice, under a corrupt use of the power previously vested by law in the officers of the court to select jurors from the body of the county, and which abuse of power resulted in the organization of the vigilance committee of 1856,—a matter which is inseparably connected with the history of this city and state.
The principles which are applicable and controlling upon matters of mandamus are equally applicable and controlling upon proceedings in prohibition; and in 3 Burr. 1268, Lord Mansfield, in speaking of the object and scope of the writ of mandate, said: “It was introduced to prevent disorder from a failure of justice and defect of police. Therefore it ought to be used upon ail occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Within the last century it has been liberally interposed for the benefit of the subject and admeasurement of justice. The value of the matter or the degree of its importance to the public police is not scrupulously weighed. If there be a right and no other specific remedy, this should not be denied.” The case of Quimbo [260]Appo v. People, 20 N. Y. 542, received an exhaustive consideration from the court of that state, and, after referring to many authorities upon the question as to when the writ of prohibition should issue, it said: “ These cases prove that the writ lies to prevent the exercise of any unauthorized power in a cause or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without the jurisdiction.” And again: “This shows that the writ was never governed by any narrow, technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of unauthorized power than to be driven to the necessity of correcting the error after it is committed.”
It would seem from the principles laid down in the foregoing authorities that in this case prohibition is pre-eminently the proper remedy. For if prohibition is not the remedy, then the defendant is barred from all remedy; for, as we will hereafter indicate, this court has repeatedly and uniformly held that the defendant has no appeal in such a case. It is confidently submitted that our judicial institutions are not so constituted but that the power to relieve an innocent man from an unjust and illegal prosecution and conviction must be found somewhere and in some manner in our judicial tribunals. Such is not only a principle of natural justice recognized by the intelligence and conscience of all civilized nations, but as a matter of abstract right, under our constitution, a defendant is entitled to á remedy.
It is unnecessary to quote further authorities from other states or countries; the question as to whether or not the writ of prohibition is the proper remedy has been squarely met and decided in the affirmative by this court in the case of Levy v. Wilson, 69 Cal. 105, and unless that case shall be overruled at this time, it stands all-controlling upon the case at bar. Like this, as shown by the verified petition filed, that was an application for [261]a writ of prohibition to restrain the Hon. T. K. Wilson, as judge of the superior court of the city and county of San Francisco, from proceeding with the trial of one Henry Levy, charged by indictment with the crime of burglary, and, among the various grounds relied upon by petitioner for the issuance of the writ, he alleged “ that said body or alleged grand jury was not a grand jury, or a legal or constitutional grand jury.” This court, after first remarking that “ most of the grounds stated for the purpose are irregularities and errors in law occurring before and after the finding and return of the indictment,” said: “ One of the grounds stated in the petition is, that the indictment was found by a body of men styled a grand jury, that was not in law and fact ‘a valid and constitutional grand jury.' If that be so, the accusatory paper returned by them to the court below as an indictment is worthless and void (People v. Thurston, 5 Cal. 69), and the court has no jurisdiction to try the petitioner upon it. For no person can be held to answer for crime, unless on information, after examination and commitment by a magistrate, or an indictment of a grand jury.” And the court then proceeds to quote the definition of the words "grand jury,” as declared by the law of this state in section 192 of the Code of Civil Procedure. The foregoing authority decides clearly and emphatically that an accusatory paper returned as an indictment by a body of men not a valid and constitutional grand jury is worthless and void, and a court has no jurisdiction to try a defendant upon such a paper. From the mere statement of the proposition, it would seem no lawyer would dispute it. Certainly no court would challenge it. These quotations are not obiter dicta of the court; they are the heart and life of the decision. At the threshold of the case, respondent insisted that petitioner had no remedy by prohibition (exactly what is being done here). This objection raised a question of law, and it was absolutely necessary for the court to meet it and dispose of it before entering upon an examination of the facts. The question was argued with [262]
The court had jurisdiction to impanel a grand jury, to the same extent and in the same manner that it had jurisdiction of the crime of murder. It had no jurisdiction to impanel a grand jury in a manner without the law, and as its caprice might dictate; neither had it jurisdiction to take a man vi et armis, charged with murder, and proceed to hear and determine his guilt or innocence. Conceding the court had jurisdiction of the offense of murder, and by reason of a valid indictment had jurisdiction of the defendant, it would have no jurisdiction to proceed to try the defendant without a jury; or, upon a verdict of guilty by a jury, it would have no jurisdiction to render a judgment that the defendant be crucified. In the case of Windsor v. McVeigh, 93 U. S. 282, in the opinion of the court, this matter of jurisdiction was clearly and succinctly discussed by that eminent jurist Mr. Justice Field, wherein he said: “ Though a court may possess jurisdiction of a subject-matter and of the parties, it is still limited in its modes of procedure, and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law. If, for instance, the action be upon a money demand, the court, notwithstanding its jurisdiction over the subject and parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for possession of real property, the court is powerless to admit in the case the probate of a will..... The judgment's mentioned, given in the cases supposed, would not be merely erroneous, they would be absolutely [263]void, because the court, in rendering them, would transcend the limits of its authority in those cases. .... And the reason is, that the courts are not authorized to exert their power in that way. The doctrine stated by counsel is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it.”
Were the acts of the court in the formation of this grand jury in excess of its jurisdiction?
Under the constitution, the court has jurisdiction to form a grand jury, but by reason thereof it would not follow that it had jurisdiction to form such grand jury in any way it saw fit. Section 192 of the Code of Civil Procedure says: “A grand jury is a body of men, nineteen in number, returned in pursuance of law.” A grand jury is not a body of twenty men returned in pursuance of law, neither is it a body of nineteen men returned to the court in pursuance of no law.
The court has jurisdiction to impanel a grand jury, but it has jurisdiction to impanel it only in accordance with the provisions of law; and when it impanels it without the law, it is acting in excess of its jurisdiction, and such a body is not a grand jury, for it does not fill the test demanded by the section of the code just quoted. If, by reason of its general jurisdiction granted by the constitution to impanel a grand jury, it has the power to form one of nineteen men, not in pursuance of law, it would have the same power to form one consisting of forty men, or possibly forty women. It is no more requisite, viewed by the statute, that the grand jury should consist of nineteen men, than it is that it should be returned according to law. Indeed, from a stand-point of honest, conscientious results, the number of the grand jury is insignificant, as compared to the manner of its selection. When the law declares that a grand jury shall consist of nineteen men, and the court impanels a grand jury consisting of ten men or [264]twelve men, it acts without its jurisdiction, and such a body is without authority, and has no vitality whatever. There is no case to the contrary in this country, and very many directly to that effect. Such a body is not a grand jury, and in congregating it the court was not acting within its powers, for its authority was limited to the formation of a grand jury. In State v. Symonds, 36 Me. 132, the court, referring to three citizens who were placed upon the grand jury, said: “ These persons were summoned and charged as grand jurors, and added to the panel, and acted in finding this bill. But as their selection for the purpose was not in conformity to the laws of this state, they constitute no part of a legal grand jury, .... and the indictment should be revoked, and forever held at naught.” In Doyle v. State, 17 Ohio, 224 (the law there requiring a grand jury to consist of fifteen persons), the court said: “A less number is not a grand jury. Fourteen are not a grand jury.....Hence in this case the indictment was not found by a grand jury.....Hence that which purports to be an indictment was no indictment, and the party charged could not be put upon trial to answer. It should have been quashed or set aside as a nullity.” In Finley v. State, 61 Ala. 206, the court said: “ Without the agency of the sheriff, but in exclusion of it, the court orders a sufficient number of names to complete the grand jury from the by-standers in the court-room to be placed upon strips, and drawn. The statute imposes upon the sheriff the duty and responsibility of summoning the persons from whom a sufficient number to complete the grand jury are to be drawn, and the court could not exclude him from the performance of the duty, or transfer it to another, or assume to perform it.....The exercise of such a power by the court would be in violation of the spirit of all our legislation, and would convert the grand jury from a distinct, independent body, drawn and summoned by officers specially charged with that duty, into a mere dependency of the court, chosen by its absolute will. The record affirmatively discloses that this accusation is not an in
The principle declared by the foregoing cases, to wit, that a body of men sworn as a grand jury, if not composed of the number required by law, or if not impaneled in pursuance of law, is not a grand jury, and that an accusatory paper presented to the court by such body is not an indictment, and that consequently the court has no jurisdiction to try a defendant upon such paper, has been upheld and affirmed directly in many other eases. (See Rainey v. State, 19 Tex. App. 479; State v. Williams, 5 Port. 130; Stokes v. State, 24 Miss. 621; Burley v. State, 1 Neb. 385; State v. Lawrence, 12 Or. 297.)
Respondent insists that the court having jurisdiction [266]to form a grand jury, and its first order to draw the names of twenty-five persons from the box being strictly within the requirements of the law, the court thereby obtained jurisdiction, and all matters and orders done and made by the court toward the formation of a grand jury subsequent to that time were not jurisdictional, but simply erroneous. This position has no sound support. The first order made by the court in the process of impanelment of the grand jury was no more jurisdictional than the second order made by the court. The court, by exercising its jurisdiction in making a valid order, could not thereby create in itself jurisdiction to make a void order. In this case the grand jury was formed under two separate and independent orders of the court, and under two separate and distinct provisions of the statute. If one was jurisdictional, the other was equally so. The court had the power to make the first order, and exercised it by ordering that the names of twenty-five persons be drawn from the box; the result of this order was the securing of ten grand jurors. It had no power to make the second order, and necessarily, such order had no legal results; the nine men selected by the elisor were intruders, and necessarily no grand jury was impaneled.
The action of the court in appointing an elisor cannot be mere error, any more than, a judgment of imprisonment for life upon a conviction for petit larceny would be mere error. In both cases the fatality is an absence of power to make the order. If it is simply an error of the court to appoint an elisor and order him to summon nine men as grand jurors, without any authority in law, it would only be an error of the court to have selected the men itself from the by-standers or from its personal friends. It would have been simply an error of the court to have impaneled a grand jury consisting of ten men. If an order appointing an elisor to summon nine men as grand jurors, made in direct contravention of law, is mere error, then an order for [267]the elisor to summon nineteen men to compose a grand jury would be mere error, and a grand jury could be impaneled so wholly and entirely irregular as to outrage and shock the law at all points, and still it would be mere error. This is the necessary result of such doctrine, and it would be a grave impropriety to hold it to be the law.
We have now determined that the court acted in excess of its jurisdiction in the impanelment of this grand jury. Has the defendant a plain, speedy, and adequate remedy other than by prohibition?
In the cases of People v. Southwell, 46 Cal. 141, People v. Welch, 49 Cal. 174, People v. Colby, 54 Cal. 37, People v. Hunter, 54 Cal. 65, People v. Goldenson, 76 Cal. 328, and others not necessary to note, it was held that a defendant had no appeal to this court from such action of the trial court in impaneling a grand jury as is disclosed by the record in this case. As early in the history of the legal jurisprudence of this state as the case of People v. Hunter, 54 Cal. 65, this court said: “Such must be considered the settled doctrine in this state.” Conceding that these cases do not establish the true rule, and that the defendant can appeal to this court to right such wrongs, yet such remedy is not plain and speedy, neither is it adequate. It cannot be said to be plain and speedy, when at every mile-stone marking his path to this court there may be found an obstruction completely blocking his way in the form of a supreme court decision, placed there by the very court toward which he is traveling for relief. His remedy by appeal is not adequate. To say that an innocent man can be charged and convicted of a crime involving the greatest moral turpitude, and lie in a felon’s cell until he can be set at liberty when his appeal has dragged its slow length along to this court, and that such remedy is adequate for his wrongs, is a travesty upon the use and meaning of words. In the case of Havemeyer v. Superior Court, 84 Cal. 399, 18 Am. St. Rep. 192, this court decided that the [268]remedy by appeal was not adequate, where the appellant might suffer irreparable damage by a destruction of his property pending the appeal. It would follow that it is a very conservative view to say that in this case the remedy by appeal is not adequate; for loss of liberty and irreparable damage to character and good name would result to this defendant, pending his appeal. The remedy is not adequate to him, for, pending his appeal, wounds would be inflicted no surgeon’s art could heal.
For the foregoing reasons, I think the writ should issue as prayed for.