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On October 13, 1904, an indictment was presented by the grand jury of the city and county of San Francisco to the superior court thereof against petitioner, charging him with a violation of the provisions of section 41 of the Penal Code, in that he, being an election officer in primary election precinct 80 of said city and county at a primary election held therein on August 9, 1904, had willfully and knowingly neglected and refused to perform a duty incumbent on him as such officer, it being alleged that he had willfully and knowingly refused to administer an oath or affirmation to a challenged elector at such election (as required by section 1367 of the Political Code), and had allowed such elector to vote without making the necessary oath or affirmation.

The superior court, proceeding in the usual mode, has caused petitioner to be arraigned upon said indictment, has required him to plead thereto, and will proceed with his trial thereunder, unless restrained by this court.

Petitioner seeks a writ of prohibition, restraining the superior court from proceeding further in the matter of said indictment, claiming that such court is without jurisdiction in the matter by reason of the…