McFarland, J.
This is an application for a writ of prohibition to prohibit the superior court of San Francisco, department No. 6, and the judge thereof, from proceeding further against petitioner upon two certain paper-writings purporting to be indictments. The main ground of the petition is, that the body of men who presented said writings had no legal existence as a grand jury, and that therefore the respondents have no jurisdiction or authority to arraign or try petitioner upon the same. Upon the record presented, two principal questions arise: 1. Was said body a legal grand jury? and 2. If it was not, then is prohibition a proper remedy?
The material facts in the case are undisputed, and are as follows: The respondent the presiding judge made an order that twenty-five names be drawn in the usual way from the “ grand-jury box ” (which contained the names of 144 persons selected by the twelve judges of the superior court), for the purpose of procuring a grand [241]*241jury. After service by the sheriff on all of said persons who could be found, eighteen of them appeared. Eight of them were excused by the court for good cause, and the others were accepted. No further drawing from the grand-jury box (in which there remained more than one hundred names) was made, but-thereupon the court made the following order: “And it now appearing to the court that of the entire number of persons drawn to serve as grand jurors there are only the number of ten proper and competent to so serve, and not excused, it is now here ordered that a sufficient number, to wit, the number of nine, good and lawful men be forthwith summoned by an elisor appointed by the court here for that purpose, to be and appear before the- court here on Thursday, August 20,1891, at twelve o’clock,, meridian, to complete the said grand jury, and that Henry H. Scott be and is hereby appointed such elisor; and all further proceedings in impaneling a grand jury are continued until the twentieth day of August, 1891, at twelve o’clock, meridian.” Another order was also made formally appointing said Scott elisor, who, after being sworn as such, returned nine other persons as grand jurors. The whole of said nine persons was accepted, and thus the requisite number of nineteen grand jurors was procured and sworn. No reason was given why the jury was not completed by an additional drawing from the grand-jury box; nor was-there any cause why, when the other method of getting-jurors was adopted, the sheriff was not ordered to summon them, instead of an elisor. No charge- of partiality, interest, or disqualification of any kind was made against the sheriff, by affidavit or in any other manner; and the record shows that the sheriff was discarded and the elisor appointed simply because the court chose to do so. And the contention of respondents’ counsel is, that the power of a judge to appoint a private person to select a jury is unlimited and unqualified by any provisions of law, or any considerations whatever, — his will being supreme in the premises. No question, therefore, arises here as to the jurisdiction of a court to pass upon the issue of [242]*242disqualification of a sheriff in such a case, because here there is no such issue.
The provisions of statutory law upon the questions here involved may be somewhat .briefly stated. The formation of grand and trial juries is provided for in the Code of Civil Procedure, commencing with section 204, and the general provisions on the subject are these: In January of each year the superior court of the county must make an order designating the estimated number of grand jurors, and also the number of trial jurors, that will be required for the business of the ensuing year, and thereupon the board of supervisors must select from the quali,fied citizens of the county — taking them, as nearly as may be, from the different wards and townships in proportion to population — the number designated by the court. A certified list of these names is given to the county clerk, who must write the names of the grand jurors on separate pieces of paper of uniform appearance, and, having folded them so as to conceal the names, must deposit them in a box called the “grand-jury box.” And whenever, during the year, a court orders a grand jury, it .is provided that the jurors shall be drawn by the clerk, in the presence of court. He must shake the box, so as to mix the slips containing the names, before drawing, and must observe other statutory directions providing against the unfair drawing of particular names for particular purposes. (Secs. 219, 241.) In cities and counties of more than one hundred thousand inhabitants, which includes San Francisco, the jurors are selected in January by the judges of the superior court, instead of by the supervisors. (Sec. 204.) In all other respects the law is the same. Such is the general method provided by statute for the formation of juries, and it is as wise a method as could well be devised to procure fair and impartial jurors, .and to prevent public officers from bringing together certain persons on a jury, in order to secure a certain result, — to annoy the innocent or protect the guilty.
There is, however, another provision of the code, —• intended .evidently for cases of neglect of duty or inad[243]*243vertence, and to prevent, in some instances, great delay or expense, — on which the right of the court to procure a jury as it was procured in the case at bar is based. The thought of the legislature in enacting the provision would seem to have been directed more particularly to trial than to grand jurors; but if its language be wide enough to grant the power here contended for, then the power exists. But if the language does not grant such power, then it does not exist; for it is granted nowhere else. The said provision is contained in section 226, and is as follows: “ 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, 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.”
It is apparent that the claim of power under the said section 226 to do the thing complained of in the case at bar should be closely scrutinized, and denied unless the power be found to be clearly given; for if it exist, it is a most arbitrary and dangerous power, — one that can easily be used to unjustly destroy character, liberty, or life. And in determining whether or not there be such legal power, we must discard all consideration of the worthiness or unworthiness of the purpose sought to be attained in any particular case. There must be attributed to the learned judge of the court below good motives and purposes; but if he have the power claimed, then such power must be conceded to every other person who may at any time occupy a similar judicial position. Under such power a court could easily procure the indictment, and perhaps the conviction, of any person whom it deemed to be an offender, by simply appointing a person favorable to its designs to select jurors with a [244]*244similar bias. In times of great public excitement, — political or otherwise, — a citizen who has incurred censure in certain quarters would have scarcely a remnant left of that protection which is afforded by a fair trial before an impartial jury; and to say that such unlimited power can be safely lodged with all the men who may happen to be judges would be to ignore human history and the principles of human nature. It must be remembered that unauthorized power may be used for bad as well as for good purposes. A spectator might, for the moment, look in safety and with complaisance upon the barbaric tumult of a mob, if he happened to be in sympathy with its present design; but let the fury of another mob be directed against him, or those whom he knows or believes to be innocent, and he will appreciate at once the value of legal protection. So, also, he may look lightly upon the spectacle of a jury packed for the purpose of prosecuting one whom he believes to be guilty; but if such a course were pursued toward him or his friend, he would have clear views of personal security and the sacredness of a jury trial. Under the best system that human wisdom can devise, an innocent man will, at long intervals, be punished, and a guilty one go free; but that a government of law is better than a government of unlimited personal power is a principle that has been fought out in English and American history, and established as a monument of liberty.
The asserted power of the court in the case at bar comes, if it comes at all, from these words, in the section last quoted,or an elisor.” It has no other source. The whole force and stress of the question involved rest on the word elisor.” The language is, not that the court shall direct the sheriff, “ or some other person,” or “ any qualified citizen,” or “ any other person over the age of eighteen ” (as in case of service of summons in civil cases), to summon the jury. There is no ordinary, general language used which would have denoted a legislative intent to give the court unlimited discretion under any and all circumstances, without any showing, to [245]*245choose whomsoever it pleases to pick out a jury. Common language is discarded, and the exclusively legal word “ elisor ”—a word used nowhere else than in law language — is employed. What is the meaning of that word? and what was the legislative intent in using it?
A rule of construction that has always obtained is aptly expressed in section 16 of the Code of Civil Procedure, as follows: “Words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or definition.” Now, the word “elisor” has a “peculiar and appropriate meaning in law,” as much as any word that can be suggested. It is not used at all in common language. No one in private or business circles would think of calling an agent or trustee an “ elisor.” It can be found rarely, if ever, in general literature. It is doubtful if the majority of men of good intelligence have any notion as to its meaning. Practically, it is known and used alone in law literature. And in the law its meaning is clear and unquestioned. It has always meant, and means now, a person appointed to perform certain duties pertaining to certain officers, when the latter are disqualified. He was originally confined to the duty of returning a jury in the event of such disqualifications; but in some states his duties are extended to the service of other process, but only in the event of the disqualification of some other officer. The provision for such appointment, as stated in Blackstone, is as follows: “If the sheriff be not an indifferent person,— as if he be a party to the suit, or be related either by blood or affinity to either of the parties,—he is not then trusted to return the jury, but the venire shall be directed to the coroners', who, in this as in many other instances, are the substitutes of the sheriff to execute process, when he is deemed an improper person. If any exception lies to the coroners, the venire shall be directed [246]*246to two clerks of the court, or two persons of the county named by the court and sworn. And these two, who are called elisors, or electors, shall indifferently name the jury,” etc. (3 Bla. Com. 355.) In Bouvier’s Law Dictionary, elisors are defined as “ persons appointed by the court to return a jury when the sheriff and coroner have been challenged as incompetent.” Such is the definition given in all the dictionaries, and such the sense in which the word is used in all the law books to which our attention has been called; and we do not understand that counsel for respondent claims differently.
Therefore, considering the universal meaning given in the law generally to the word “ elisor,” and without considering any other legislative provision upon the subject in this state, it would seem clear that when section 236 gives power to direct the sheriff or an elisor to summon a jury, it uses the word as designating a person to be appointed in the event that the sheriff has been “ challenged as incompetent.” Such construction is not only compelled by the only known meaning of the word, but brings the section into harmony with all the other sections relating to the selection of juries, the object of which is clearly to have jurors, as far as possible, fair and impartial. The sheriff is an officer elected by the people, and usually long before he is called upon to select a jury. If he should be secretly partial in any future case, it would be an accidental evil; he could not, at least, be appointed for such express purpose. And the fact that “coroner” was omitted (inadvertently or otherwise) from section 226 does not change the meaning of “ elisor,” — who is essentially one who is a substitute for some disqualified officer.
But our statutory law gives the same meaning' to “elisor” that is given to it in the general authorities. It is provided that, “with relation to each other, the provisions of the four codes must be construed (except as in the next two sections provided) as though all such codes had been passed at the same moment of time, and [247]*247were parts of the same statute.” (Pol. Code, sec. 4480.) (The next two sections refer to cases of conflict, and have no application here.) When, therefore, "elisor” is used in one code, it must be deemed to have been used with reference to its definition given in another code. The Political Code, from section 4175 to section 4193, deals with the duties of sheriff, and with process and notices and their service. It refers to both civil and criminal procedure. Section 4176 provides generally that the sheriff must "serve all process and notices in the manner prescribed by law.” Section 4175 provides that “ ‘process’ as used in this article, includes all writs, warrants, summons, and orders of courts of justice or judicial officers. ‘Notice’ includes all papers and orders (except process) required to be served in any proceeding before any court, board, or officer, or when required by law to be served independently of such proceeding.” It is impossible to imagine any sort of a thing ordered by any court, or judge thereof, which has to be executed by an officer that is not embraced in the above definitions; and the general statutory provision is, that it must be executed by the sheriff. Section 4191 provides, however, that if the sheriff be “a party to an action or proceeding, the process and orders therein .... must be executed by the coroner.” And then, in section 4192, the office and functions of an elisor are provided for and described, as follows: “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: 1. When the sheriff and coroner are both parties; 2. When either of these officers is a party and the process is against the other; and 3. When either of these officers is a party and there is a vacancy in the office of the other, or 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 these officers are disqualified, or by reason of any bias, prejudice, or other cause, would not act promptly or impartially.” .The only at[248]*248tempt to break the force of this provision is by way of suggesting that the word “ proceeding,” as used therein, must be limited to that' peculiar kind of civil remedy which is called, in section 23 and in sections 1063 et seq., Code of Civil Procedure, a “special proceeding.” But there is no roon^for such construction. The provision in question does^say special proceeding, and the preceding sections and the whole article in which it occurs refer to both civil and criminal matters, and use the word “ proceeding ” in its general and well-known sense, which includes all steps taken and all things done, wherein judicial procedure is instituted or judicial action invoked. Even in a strictly civil action, when reciting what had occurred in the case, we say, such “proceedings were had,” etc. This is the common meaning of the word “proceeding,” when applied to things done in court or before judicial officers. Indeed, counsel for respondents, in his brief, refers, very naturally, to the formation of a grand jury as a “proceeding.” And so we have a statutory definition and description of “elisor” in full accord with the meaning that has always been given it in the general law.
It is contended that no matter how a body of men may have been gathered together, its acts cannot be attacked if it be recognized by the court as a “ grand jury,” — upon the principle sometimes applied to the act of de facto public officers. One of respondents’ counsel goes so far as to assert that the legal existence of a jury can be inquired into only by the proceeding of quo warranto; and while other counsel do not assume that very novel position, yet their views logically drift them there. But quo warranto does not lie against a mere temporary employment, like that of a jury; it lies only against the holder of a public office having a “fixed and permanent tenure.” (7 Lawson’s Rights, Remedies, and Practice, sec. 4040, and notes.) It would indeed be startling if a man could be put to the partial ignominy and hazard of a trial at the will of any set of men whom a court might choose to stylo a grand jury. But the cor[249]*249rect doctrine on that subject was clearly stated by this court in Levy v. Wilson, 69 Cal. 105, where the court, through McKee, J., say: “ 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 by a grand jury.” In People v. Thurston, 5 Cal. 69, the same rule was stated, where Murray, 0. J., delivering the opinion of the court, said: “I regard the indictment thus found by an illegally constituted body as worthless, and all proceeding based upon it void." (See also People v. Coffman, 24 Cal. 234.) And such is the tenor of the general authorities. In People v. McNamara, 3 Nev. 75, the court say: "An indictment found by a jury not legally constituted cannot be valid.” In McEvoy v. State, 9 Neb. 163, the court say: “ The grand jury must be selected in the manner prescribed by law. These is no security to the citizen but in a rigid adherence to the legislative will as expressed in the statutes for our general guidance.” In Stokes v. State, 24 Miss. 623, it was held that (we quote from the syllabus, which correctly states the decision) “ a grand jury consists of the requisite number of competent individuals, selected, summoned, impaneled legally, and sworn according to the forms of law, and if the law be not followed, the grand jury is incompetent to perform legal acts. .... The strict observance of the statute in regard to the formation of a jury cannot be dispensed with.” In Raiey v. State, 19 Tex. App. 481, the court say that “ a valid indictment is an indispensable prerequisite to a legal prosecution for felony.” In Finley v. State, 61 Ala. 201, the court, after referring to an unauthorized order made by the lower court on procuring a grand jury, say: “ The [250]*250exercise of such a power by the court would be a 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 practical results of such a power are too apparent to require discussion or statement. There is no reason for imparting to the court in this instance more than mere error; but the power, exercised in the hands of a capricious or an unscrupulous judge, would destroy the purity and independence of the grand jury, and pervert it from all the purposes of its institution.” There are numberless other authorities to the same point; but it is useless to indulge in further citations. And these authorities are determinative of the other form in which one of the respondents’ counsel states his position, to wit, that the court, having obtained jurisdiction of the matter of forming a grand jury by first making a valid order that certain jurors be drawn from the box, retained, or thus acquired, power to make the subsequent invalid order that other jurors be selected by Scott. But that was the exact state of facts in many of the cases above cited. In Finley v. State, 61 Ala. 201, for instance, the court had first made a legal order that certain grand jurors be properly drawn, and had afterwards made an illegal order for the procurement of other jurors. The fact is, that the jurisdiction of the respondent to legally impanel a grand jury did not come from any order which it made in the premises. That jurisdiction came from the law, and was vested in the court before any order was made by it. But that power was limited. There was room for the play and exercise of discretion within the inclosure; but the court-could not get beyond that without over-leaping or breaking down the barriers. The appointment of Scott was an act entirely independent of and distinct from the order for the drawing of jurors from the box; and if there was any power to make it, such power must be found in the law, and not in any previous action of the court. As said in High on Extraordinary [251]*251Legal Remedies, 2d ed., sec. 774, a court “ will not be permitted to make a jurisdiction for itself, by coupling matters beyond its control with those upon which it may rightfully adjudicate.”
Our conclusion is, that the court below had no authority in law to appoint said Scott to select grand jurors, because there was no case to which the power of appointing an elisor applied.
2. Is prohibition the proper remedy ?
Prohibition lies in all cases where there have been proceedings “ without or in excess ” of jurisdiction, and there “is not a plain, speedy, and adequate remedy in the ordinary course of law.” (Code Civ. Proc., secs. 1102, 1103.) If the views hereinbefore expressed are correct, it is clear that the appointment of the so-called elisor was “ without jurisdiction.” Jurisdiction is usually defined as “the power to hear and determinebut, of course, it is difficult to express in abstract terms a statement of the distinction between error in exercising jurisdiction, and jurisdiction itself, that can be readily applied to all cases as they may arise. The law endeavors to fix definitely everything that can in its nature be so fixed, so as to leave as little as possible to the judgment or caprice of those who administer it. But as many future events cannot, in the nature of things, be foreseen and provided for, it follows necessarily that much must be left to the discretion of courts and other tribunals. And the main test of jurisdiction in any particular matter is, whether or not discretion is given the court as to such matter. In the matter before us, for instance, if the law intended to give the power to appoint an elisor in the event of disqualification of the sheriff, it is apparent that the law could not determine beforehand the disqualification of any particular person who might happen to be sheriff at any future time. It could not say that any such sheriff would be actuated by “bias or prejudice.” Consequently, the determination of the issue, when properly made, of such disqualification is necessarily left to the discretion of the court, and it [252]*252has jurisdiction to hear and determine that issue. But when there is no such disqualification, then there is no discretion given to determine whether an elisor should or should not be appointed. Consequently, when there is such an issue made, and the court finds against the disqualification, or when, as in the case at bar, it is admitted that there was no such disqualification, then no jurisdiction exists to make the “ appointment.” And the jury not being a legal body, and the so-called indictment being void, then, as before quoted from Levy v. Wilson, 69 Cal. 105, “ the court has no jurisdiction to try the petitioner upon it.” The conclusion follows that the proposed action of the court would be without and in excess of its jurisdiction.
The only other question is,. Would petitioner have a plain, speedy, and adequate remedy in the ordinary course of law ?
If there be such remedy, it must be by appeal. But it would be a difficult proposition to maintain that a defendant in a criminal case, forced through all the stages of a trial for felony without any indictment against him, or, which is the same thing in effect, upon a void indictment, would have a plain,' speedy, and adequate remedy because after conviction and judgment, and perhaps after suffering the ignominy of imprisonment in the state prison, he could have the illegal proceeding reversed on appeal. But it is not necessary to discuss that question, because it has been held several times by this court that the point here made by petitioner cannot be reached on appeal. It was so held by our predecessors, in People v. Southwell, 46 Cal. 141. In that case the lower court had made an order reciting that there were objections to the sheriff, and that the court intended to submit certain charges against him to the grand jury,' and for that reason appointing the coroner to summon the grand jurors. The defendant attacked, in the court below, the legality of the grand jury, upon the ground of such appointment of the coroner, by moving to set aside the indictment. On appeal, this court first held that the [253]*253appointment of the coroner was illegal, that the question could be reviewed on appeal, and that the judgment should be reversed; saying, among other things, that “a due regard to the rights of all persons accused or to be accused by the grand jury requires that that body should be summoned by the officer intrusted by law with the performance of that duty.” But a rehearing was granted, and after further consideration, the court — Wallace, C. J., dissenting, and adhering to the former opinion—held that, “ in its legal effect, the motion was a challenge to the panel,” and that as the objection to the summoning of a jury by the coroner was not a statutory ground of challenge to the panel, the defendant had no remedy on appeal. In People v. Welch, 49 Cal. 174, the court below had allowed the district attorney to examine the sheriff as to his qualifications to summon a jury, and upon his testifying that he was biased against the defendant, had appointed the coroner to summon the jury. The defendant objected to the venire for that reason; but this court, on appeal, while holding that the action of the court below was wrong, held also that the question could not be reached, saying that People v. Southwell, 46 Cal. 141, “ is authority for the proposition that the mistake of the judge in this case was not ground for challenge to the panel of trial jurors, or of objection to the venire.” (It will be noticed that in both of the above cases there was an attempt in some form to attack the qualification of the sheriff.) The same rule was announced in People v. Colby, 54 Cal. 37, and People v. Hunter, 54 Cal. 65; and in each of said cases People v. Southwell, 46 Cal. 141, is mentioned and expressly approved. And unless all of these cases, and some later ones, are to be overruled, there is no way in which the question raised in the case at bar can be reached, except by the writ of prohibition.
And such, we think, was the decision of this court in Levy v. Wilson, 69 Cal. 105. In that case the petition was for a writ of prohibition. The petitioner set forth that he had been indicted by a body of men styled a [254]*254grand jury, but “ that the body that found said indictment is not a grand jury, or a valid, legal, or constitutional body of grand jurors”; that the respondent, Wilson, judge of the court in which said indictment was pending, was about to proceed to try petitioner upon said indictment; and that he would so proceed unless prohibited by the order of this court. Whereupon he prayed that a “ writ of prohibition ” be issued “ restraining said Hon. T. K. Wilson, as a judge of said superior court, from talcing any further action or proceeding in said matter.” (See petition" in said case.) Now, the first question presented to the court, and which it must have decided affirmatively before looking further into the case, was this: Assuming that the body of men by whom petitioner was indicted was not a legal and valid grand jury, is prohibition the proper remedy? and has the court jurisdiction, under that proceeding, to grant the relief prayed for? If the decision had been adverse to the proposition that prohibition would lie in such a case, there would have been no occasion for the court proceeding further, and examining into the grounds upon which petitioner, in that particular instance, rested his charges of the invalidity of the jury; the case would have stopped at the threshold. And the question was fully presented and elaborately argued by opposing counsel. Louderback, for petitioner, argued strenuously that prohibition was the proper remedy, and cited numerous authorities to sustain his position; while the first point made by counsel for respondent, J. N. E. Wilson, was, that prohibition would not lie, — authority also being cited to the point. And so if the court had agreed with the position of respondent, it would have dismissed the proceeding upon that ground. But no such course was pursued. It entertained the writ of prohibition, and discussed the cases where it will and will not lie, and clearly held that it would lie when there was an indictment by a body not a valid and constitutional grand jury. Such is the necessary result of the action of the court, and such is the conclusion that must follow the [255]*255language which it used. In. that case the petitioner, among other things, had alleged numerous irregularities as grounds of the illegality of the grand jury, and the court, in speaking of those, used this language: “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. But as these are matters which are reviewable, and remediable on appeal in the action, they are not grounds for a writ of prohibition. Prohi. bition lies to arrest the proceedings of a judicial tribunal, when they are without or in excess of its jurisdiction; and the writ is issuable only in cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law.” But having disposed of these minor matters, the court proceeds: “ 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.” And so the express language of the court is a clear statement that if in that case the indictment had been found by a body of men who were not a legal grand jury, the peremptory writ of prohibition would have been granted. From every stand-point, therefore, the case must be taken as a full authority to the point that prohibition lies in the case at bar. But when the court proceeded and looked into the merits of that case, it found against the petitioner. The fact relied on was, that the court below, after having ordered some of the grand jurors drawn from the jury-box, had then ordered the sheriff to select the rest from the body of the county. The point insisted on by petitioner was, that, under the constitution, grand jurors must be “drawn,” and that “drawn” meant taken from the jury-box by lot, and that the statutory provision allowing the court to direct the sheriff to select jurors was unconstitutional. On that point the [256]*256decision of the court was against the petitioner. While it says that “we are of the opinion that the court below, in exercising its discretion, ought to have ordered the panel to be filled by requiring the cleric, in open court and in the presence of the judge, to draw the requisite number of names from the grand-jury box, instead of requiring the sheriff to summon jurors from the body of the city and county,” yet it holds that “ the course adopted by the court was one authorized by the code.” But if the court had held with the petitioner in his contention about the sheriff’s power, it is clear that the writ would have issued. As to the case of Ex parte Haymond, 91 Cal. 545, it is sufficient to say that the distinction between a mere witness and a party indicted for a felony is too clear to need discussion.
We are of opinion, therefore, that there is no jurisdiction in the respondent to proceed with the trial of petitioner; that the latter has no “plain, speedy, and adequate remedy in the ordinary course of law”; and that prohibition is the proper remedy.
Petitioner makes the point that at the time of the order complained of there was a rule of the superior court of San Francisco, made by the twelve judges thereof, and never repealed or abrogated, as follows: “Rule 4. It shall be the duty of the presiding judge to preside over the drawing and impanelment of all grand juries required by law or by the public interests to be drawn. Grand jurors must in all cases be drawn from the list of grand jurors selected by the judges of this court, unless the grand-jury box containing the names of jurors so selected shall be exhausted without securing a grand jury”; also, that the constitution requires a grand jury to be drawn, and that “ drawn ” means taken by lot from a jury-box; also, that one of the alleged indictments against petitioner shows upon its face that if the crime charged was committed at all, it was committed in the county of Sacramento, and without the jurisdiction of respondents; also, that the trial jurors before whom he would be tried have likewise been procured by another similar order [257]*257appointing another elisor; also, that petitioner was compelled to appear before said grand jury, and testify as to the very charges upon which he was indicted. But as our views heretofore expressed are determinative of the case, and as some of said questions are reviewable upon appeal, we deem it unnecessary to here discuss them.
Let the writ issue, restraining the respondents, as prayed for in the petition.
Harrison, J., and Paterson, J., concurred.