I dissent. The indictments pending against petitioner in department No. 6 of the superior court of the city and county of San Francisco were returned by a body of men impaneled by that court as a grand jury, and charged by it with the duties pertaining to such a body. In my opinion, the learned judge of that court committed an error in making the order which directed the summoning of some of its members by an elisor, in the absence of a showing that the sheriff was disqualified to perform that duty. Section 226 of the Code of Civil Procedure provides: “When, ever 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 a elisor chosen by the court, forthwith to summon so many good and lawful men of the county, or city and 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.” This section does not, when properly construed, give to the judge an absolute discretion to select any person to summon jurors to complete the panel, without reference to the sheriff or his disqualifications. If such were the intention of the law, it would have been more clearly expressed by omitting the word “ sheriff” altogether, and simply providing that the jurors should be selected by some person named for that purpose in the order, and then the court would have been left with complete discretion to select the sheriff or any other person to execute its order; but such is not its language, and giving due effect to the meaning of the word “ elisor,” in the connection in which it is here used, the true meaning of this section is, that the court shall direct the sheriff to summon such jurors, or in case of his disqualification, some person to act in his place. But this error of the court did not convert the persons impaneled by it as a grand jury into a body of usurpers, without any sem*273blance of authority, and whose accusations are mere nullities, which the court is without jurisdiction to entertain. The court had undoubted authority to impanel a grand jury. Its order made for the drawing was regular, and when, in due course of the proceeding, certain of those drawn were excused from serving, and there did not remain a sufficient number of competent jurors to form the panel, the court was called upon, in the exercise of its jurisdiction, to obtain additional jurors; and how this'should be done was a matter for the court then to determine by its order, and involved the exercise of discretion-as to whether they should be drawn or summoned, and in the event that the latter mode was adopted, required the exercise of judgment, — a decision whether, under the-law, the execution of its order should be directed to the-sheriff or some other person. That the judge of that court was thus called upon to determine what the law required in the premises is evident, and that this was the exercise of a judicial function in a matter over which he had perfect jurisdiction is, to my mind, so clear that" the mere statement of the proposition ends all argument-upon the point. The right to act in the matter at all, and to decide for the time being what was the law applicable to the proceeding before the court, constituted jurisdiction in every sense of that term; and no mere-error in the decision of the question thus regularly before-it could deprive the court of jurisdiction over that proceeding, or make its orders therein subject to a collateral-attack as absolutely null and void;
The court having this jurisdiction over the general proceeding, it follows necessarily that the jury impaneled by it is a de facto body, having the right to exercise the functions of a grand jury, and- whose indictments can only be questioned in the court to which they were returned,, with the right of appeal from any judgment therein. Every possible objection-which, under the law or constitution, can be taken to the formation of such grand jury must be presented by the- accused in that court, and not by an independent and collateral action in another court. *274That the objection here urged against this particular grand jury is a mere irregularity, and does not at all affect the jurisdiction of the superior court over the indictments returned against petitioner, was, in my opinion, clearly and distinctly held in the case of People v. Southwell, 46 Cal. 141. In that case, as in this, the jurors had been selected and summoned by an unauthorized person, and this court, on appeal, said this was only an irregularity, and one for which the statute did not even provide a remedy. In thus deciding and affirming a judgment of conviction, the court necessarily held that :such an irregularity was not fatal to the jurisdiction of the court to try the defendant upon an indictment returned by a grand jury, many of whose members had been irregularly and improperly summoned. It was there said: “It is claimed on behalf of the defendant that if the grand jury was not selected and summoned .as required by law, it was an illegal body, which usurped .the functions of a grand jury, and its acts are wholly void.” In the course of its opinion, and in reply to this position of the appellant in that case, the court, in pointing out the difference between a grand jury which had ¡such technical defects in its organization, and a body -wholly without authority, and whose indictments could not properly be considered by the court, further said: It may be that if a paper be presénted to the court in -the form of an indictment, but which was found by a body of men having no semblance of authority to act as ,a grand jury, it would be the duty of the court to strike it from the files as a mere nullity, and as wholly worthless for any purpose. It would have no proper place .among the files of the court, and ought, therefore, to be removed from them.....But it is not every slight irregularity which may occur in the formation of a grand jury which would justify the court in striking the indictment from the files as a nullity. Otherwise there would be no need of a challenge to the panel, as nil objections to the grand jury could be taken on a motion to strike the indictment from the files. The true *275distinction lies between the acts of a body having no semblance of authority to act at all, and of a body which, though not strictly regular in its organization, is, nevertheless,'acting under a color of authority. In the former case, the acts of the wholly illegal body are nullities, having no proper place among the files of the court. But in the latter case, section 182 of the statute prescribes the only method by which mere irregularities in the formation of the grand jury can be inquired into. The case at bar comes within the latter category. On the facts disclosed by the record, it cannot be affirmed that the grand jury had no semblance of authority, and were acting without color of lawful right. It was regularly drawn from a grand jury list, duly certified, and some of them having been excused, the deficiency was supplied by a venire properly issued by the order of the court. We think the court erred in directing the venire to be summoned by the coroner instead of the sheriff. But this was only one of the irregularities for which the statute has failed to provide a remedy. A grand jury summoned in pursuance of a venire duly issued cannot be said to be a wholly illegal body having no semblance of authority merely because the court erroneously directed the venire to be served by the coroner instead of the sheriff. It was an error of which the defendant, perhaps, might justly complain, but the statute has provided no remedy for it.”
This decision has never been overruled, but, on the contrary, has been repeatedly referred to as authority in later cases in this court, and seems to be conclusive of every question presented by this record. Indeed, my attention has not been called to the decision of any court, either in this state or elsewhere, in which it has been held that an irregularity in the formation of a grand jury of the character here complained of can be corrected in a collateral action.
In Wharton’s Criminal Law and Practice, sec. 350, it is said: “ If the body by whom the indictment was found was neither de jure nor defacto entitled to act as *276such, then the proceedings are a nullity, and the defendant, at any period when he is advised of such nullity, is entitled to attack them by motion to quash, or by plea in abatement, or, when the objection is of record, by motion in arrest of judgment. He is, in most jurisdictions, sheltered by constitutional provisions from prosecution, except upon indictment found by a grand jury, and when the body finding the indictment is not a grand jury, either de jure or de facto, then its prosecution must fall when the question is duly raised. But a de facto grand jury cannot be deemed a nullity under this provision of the constitution.”
This seems to me to be the true rule, and in the case of Ex parte Haymond, 91 Cal. 545, we held, upon the same state of facts disclosed in this record, that this same grand jury was a de facto jury. This being so, in my opinion, the superior court has jurisdiction to proceed upon the indictments, and any judgment which it might make would not be void, and therefore the writ should be denied.
In the foregoing I have assumed that the offenses charged against petitioner are alleged to have been committed in whole or in part within the city and county of San Francisco. If, however, the indictments are defective in this respect, as it is not shown that the attention of the superior court has been called thereto, petitioner is not entitled as a matter of right, at this time, to the writ demanded.