FRANK ABELLEIRA et al., Petitioners, v. THE DISTRICT COURT OF APPEAL OF THE STATE OF CALIFORNIA, THIRD APPELLATE DISTRICT et al., Respondents; MATSON NAVIGATION COMPANY (a Corporation) et al., Interveners.
S. F. No. 16357
In Bank.
February 7, 1941.
17 Cal.2d 280
Robert W. Kenny, as Amicus Curiae, on behalf of Petitioners.
Earl Warren, Attorney-General, and John J. Dailey, Deputy Attorney-General, for Respondents.
Maurice P. McCaffrey, Glenn V. Walls, Webster V. Clark, Rogers & Clark, Milton Marks, J. M. Mannon, Jr., Edwin S. Pillsbury, George O. Bahrs, and McCutchen, Olney, Mannon & Greene, as Amici Curiae, on behalf of Respondents.
Brobeck, Phleger & Harrison, Gregory A. Harrison and Richard H. Ernst for Interveners.
This is a petition for a writ of prohibition, to restrain the respondent District Court of Appeal from taking any steps toward the enforcement of a writ of mandate and temporary restraining order heretofore issued by that court and directed against the California Employment Commission. For convenience, the term “petitioners” will be used to refer to those who seek the writ of prohibition in the present proceeding; the term “respondent” will refer to the District Court of Appeal; and the term “employers” will be used to refer to those employers who sought and obtained the writ of mandate and restraining order from the District Court of Appeal, as well as to other employers represented by counsel participating in the argument as amici curiae.
Petitioners are individual longshoremen ordinarily employed in the harbor of San Francisco and numbering about five thousand persons. As such workmen they are subject to the provisions of the California Unemployment Insurance Act. (
During October and November, 1939, widespread unemployment occurred among petitioners. On or about November 10, 1939, they registered for work and made claim for unemployment benefits in accordance with the requirements of the statute. An initial determination was made by the adjustment unit that they were entitled to the benefits, and the employers, intervening, appealed from this determination. A hearing was had before a referee; considerable evidence was introduced and argument heard, following which written briefs were filed. On December 15, 1939, the referee made his decision affirming the initial determination.
On December 16, 1939, the employers applied to the District Court of Appeal, Third Appellate District, for a writ of mandate and other incidental relief, in a proceeding entitled ”Matson Navigation Company v. California Employment Commission“. The employers objected to payment of the benefits on the ground that petitioners left work “because of a trade dispute“, which, under
The District Court of Appeal issued an alternative writ of mandate and a temporary restraining order directed to the commission to withhold payment of unemployment benefits. The writ states that “any such payments which may be made ... are in violation of the provisions of the Unemployment Insurance Act“, and orders the commission to refuse to pay as long as the asserted trade dispute is in progress, or to appear and show cause before the court why it has not done so. The restraining order was issued to enforce compliance with the mandate pending a final hearing on the alternative writ. The writ and restraining order having been issued ex parte, petitioners on December 18, 1939, made a motion to dissolve. The motion was argued, but the court submitted it without making any decision thereon at that time.
Subsequently, on December 22, 1939, the employers filed an appeal from the decision of the referee to the commission itself, which appeal is now pending.
On or about December 26, 1939, petitioners applied to this court for a writ of prohibition. On January 5, 1940, we issued an alternative writ. The matter was heard and is here on briefs of counsel, together with a number of additional briefs of amici curiae representing the commission, other employers and parties interested generally in the issues of the case.
The theory upon which the District Court of Appeal acted in issuing the writ of mandate clearly appears from the petition, the writ, and the briefs of counsel. The court, in ordering the commission to cease paying benefits, was undoubtedly of the belief that the commission was acting beyond its statutory powers, and consequently was without jurisdiction to make the payments in question. This is expressly asserted by certain amici curiae appearing for the employers.
The theory upon which the writ of prohibition was sought is that the District Court of Appeal had no jurisdiction to issue the writ of mandate prior to completion of the administrative proceedings, and that petitioners had no plain, speedy or adequate remedy otherwise. (See
1. “Lack of jurisdiction” as a basis for writ of prohibition.
The first inquiry in this case must, of course, be as to the nature and meaning of “jurisdiction“; and here three possible sources of confusion must be eliminated.
First is the argument of the employers that the District Court of Appeal has general original jurisdiction to issue writs
Second is the nature of a writ of prohibition, which never issues to restrain a lower tribunal from committing mere error in deciding a question properly before it. If the lower court has power to make a correct determination of a particular issue, it clearly has power to make an incorrect decision, subject only to appellate review and not to restraint by prohibition. Hence, in examining the authorities, we must conclude that in those situations in which a writ of prohibition was issued, the particular action restrained was one beyond the jurisdiction of the court to take.
Third is the question whether this court has power to restrain or otherwise control the action of the District Court of Appeal. There can no longer be any doubt on this point. The writ of prohibition is not confined in its operation to restraining trial courts from acting in original proceedings; it lies also to prevent a lower appellate court from reviewing on appeal a matter over which it has no jurisdiction. (Shriver v. Superior Court, 48 Cal. App. 576, 582 [192 Pac. 124]; Commonwealth v. Yungblut, 159 Ky. 87 [166 S. W. 808]; 50 C. J. 668, sec. 25.) This court has in fact issued prohibition directed against the District Court of Appeal in two comparatively recent cases. (Fay v. District Court of Appeal, 200 Cal. 522 [254 Pac. 896]; People v. District Court of Appeal, 193 Cal. 19 [222 Pac. 353]; see, also, Stout v. Farwell, 111 Cal. App. 31, 32 [295 Pac. 47].)
We now proceed to a consideration of the meaning of the term “jurisdiction” in its relation to the granting of a writ of prohibition. The term, used continuously in a variety of situations, has so many different meanings that no single statement can be entirely satisfactory as a definition. At best it is possible to give the principal illustrations of the situations in which it may be applied, and then to consider
Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. (See generally, 14 Am. Jur. 363, sec. 160.) Familiar to all lawyers are such examples as these: A state court has no jurisdiction to determine title to land located outside its territorial borders, for the subject matter is entirely beyond its authority or power. (Taylor v. Taylor, 192 Cal. 71 [218 Pac. 756, 51 A. L. R. 1074].) A court has no jurisdiction to adjudicate upon the marital status of persons when neither is domiciled within the state. (See Restatement, Conflict of Laws, sec. 111; Ryder v. Ryder, 2 Cal. App. (2d) 426 [37 Pac. (2d) 1069].) A court has no jurisdiction to render a personal judgment against one not personally served with process within its territorial borders, under the rule of Pennoyer v. Neff, 95 U. S. 714 [24 L. Ed. 565]. (See Doherty & Co. v. Goodman, 294 U. S. 623 [55 Sup. Ct. 553, 79 L. Ed. 1097], discussing modern exceptions to the rule.) A court has no jurisdiction to hear or determine a case where the type of proceeding or the amount in controversy is beyond the jurisdiction defined for that particular court by statute or constitutional provision. (See Cambra v. Justice‘s Court, 4 Cal. (2d) 445 [49 Pac. (2d) 1121].) Other examples of lack of jurisdiction in this fundamental sense will readily occur.
But in its ordinary usage the phrase “lack of jurisdiction” is not limited to these fundamental situations. For the purpose of determining the right to review by certiorari, restraint by prohibition, or dismissal of an action, a much broader meaning is recognized. Here it may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites. Thus, a probate court, with jurisdiction of an estate, and therefore over the appointment of an administrator, nevertheless acts in excess of jurisdiction if it fails to follow the statutory provisions governing such appointment. (Texas Co. v. Bank of America, 5 Cal. (2d) 35, 39 [53 Pac. (2d) 127].) The superior court may have jurisdiction over a cause of action
On a number of occasions the courts of this state have recognized the conflicting senses in which the term “jurisdiction” is used, and have emphasized the point that in applications for prohibition or certiorari, the broader meaning is involved. In our own recent decision, Rodman v. Superior Court, 13 Cal. (2d) 262 [89 Pac. (2d) 109], we said: “... some confusion exists with reference to what constitutes an excess, and what constitutes an error, in the exercise of jurisdiction. However, it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess.” In Spreckels S. Co. v. Industrial Accident Com., 186 Cal. 256, 260 [199 Pac. 8, 9], where the commission made an award larger than the statute authorized and certiorari was sought, the court said: “The difficulty arises from the different shades of meaning which the word ‘jurisdiction’ has. As sometimes used, it means simply authority over the subject matter or question presented. In this sense the commission undoubtedly had jurisdiction in this case, and its award was not without jurisdiction on its part. But the word is frequently used as meaning authority to do the particular thing done, or, putting it conversely, a want of jurisdiction frequently means a want of authority to exercise in a particular manner a power which the board or tribunal has, the doing of something in excess of the authority possessed.” (See, also, Weintraub v. Superior Court, 91 Cal. App. 763, 769 [267 Pac. 733]; State v. Reynolds, 209 Mo. 161 [107 S. W. 487, 491, 123 Am. St. Rep. 468, 14 Ann. Cas. 198, 15 L. R. A. (N. S.) 963], reviewing authorities on prohibition and quoting from Appo v. People, 20 N. Y. 531: “The writ lies to prevent the exercise of any unauthorized power in a case or proceeding of which
The foregoing observations, while by no means a complete description of the term, nevertheless serve as a warning against a too restricted meaning. The concept of jurisdiction embraces a large number of ideas of similar character, some fundamental to the nature of any judicial system, some derived from the requirement of due process, some determined by the constitutional or statutory structure of a particular court, and some based upon mere procedural rules originally devised for convenience and efficiency, and by precedent made mandatory and jurisdictional. Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari. And, as a practical matter, accuracy in definition is neither common nor necessary. Though confusion and uncertainty in statement are frequent, there is a surprising uniformity in the application of the doctrine by the courts, so that sound principles may be deduced from the established law by marshalling the cases and their holdings in this field.
2. The requirement of exhaustion of administrative remedies.
Lack of jurisdiction in the District Court of Appeal to issue its writ of mandate is clearly established when the foregoing principles are considered in connection with a settled doctrine of administrative law. The Unemployment Insurance Act, summarized above, contains a complete administrative procedure, with provision for one original determination and two appeals, fulfilling every requisite of due process of law. Until that administrative procedure has been invoked and completed, there is nothing that the District Court of Appeal or any other court may review; it cannot interfere in the intermediate stages of the proceeding. The employers have no standing to ask for judicial relief because they have not yet exhausted the remedies given them by the statute. They still have their appeal to the commission, which appeal has not yet been decided adversely to them, and prior to the
This is the doctrine of “exhaustion of administrative remedies.” In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act. The authorities to this effect are so numerous that only the more important ones need be cited here as illustrations. (See Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 [58 Sup. Ct. 459, 82 L. Ed. 638] [National Labor Relations Board]; Prentis v. Atlantic Coast Line Co., 211 U. S. 210 [29 Sup. Ct. 67, 53 L. Ed. 150] [rate orders]; Porter v. Investors Syndicate, 286 U. S. 461, 468 [52 Sup. Ct. 617, 76 L. Ed. 1226] [investment commissioners and permit of investment company]; United States v. Sing Tuck, 194 U. S. 161 [24 Sup. Ct. 621, 48 L. Ed. 917] [immigration and the powers of the secretary of labor]; Gorham Mfg. Co. v. State Tax Com., 266 U. S. 265 [45 Sup. Ct. 80, 69 L. Ed. 279] [tax board]; Red River Broadcasting Co. v. Federal Communications Com., 98 Fed. (2d) 282, 284 [69 App. D. C. 1]; Western Powder Mfg. Co. v. Interstate Coal Co., 5 Fed. Supp. 619, 621; Hegeman Farms Corp. v. Baldwin, 293 U. S. 163, 172 [55 Sup. Ct. 7, 79 L. Ed. 259] [liquor control board]; United States Nav. Co. v. Cunard S. S. Co., 284 U. S. 474 [52 Sup. Ct. 247, 76 L. Ed. 408] [shipping board]; De Pauw University v. Brunk, 53 Fed. (2d) 647, 652; Palermo L. & W. Co. v. Railroad Com., 227 Fed. 708; Hammerstrom v. Toy Nat. Bank, 81 Fed. (2d) 628 [tax board]; American Bond etc. Co. v. United States, 52 Fed. (2d) 318; Monocacy Broadcasting Co. v. Prall, 90 Fed. (2d) 421 [67 App. D. C. 176]; Federal Trade Com. v. Claire Furnace Co., 274 U. S. 160, 174 [47 Sup. Ct. 553, 71 L. Ed. 978]; St. Clair Borough v. Tamaqua etc. Ry. Co., 259 Pa. 462 [103 Atl. 287, 289, 5 A. L. R. 20]; Corstvet v. Bank of Deerfield, 220 Wis. 209 [263 N. W. 687, 697]; Earl Carroll Realty Corp. v. New York Edison Co., 141 Misc. 266 [252 N. Y. Supp. 538, 543]; 48 Yale L. J. 981; 51 Harv. L. Rev. 1251; 35 Col. L. Rev. 230; 12 N. Y. Univ. L. Q. Rev. 393; 28 Mich. L. Rev. 637; 28 Cal. L. Rev. 129, 151, 154, 162.) The California cases have consistently applied this settled rule. (See Teeter v. Los Angeles, 209 Cal. 685 [290 Pac. 11]; Collier & Wallis v. Astor, 9 Cal. (2d) 202 [70 Pac. (2d) 171]; San Joaquin etc. Co. v. Stanislaus, 155 Cal. 21, 27 [99 Pac. 365]; Dawson v. Los Angeles, 15 Cal. (2d) 77 [98 Pac. (2d) 495].)
The rule itself is settled with scarcely any conflict. It is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis, and binding upon all courts. We are here asked to sanction its violation, either on the ground that a valid exception to the rule is applicable, or that despite the uniformity with which the rule has been applied, it may be disregarded by lower tribunals without fear of prevention by the higher courts. This last point cannot be too strongly emphasized, for the rule will disappear unless this court is prepared to enforce it. To review such action of a lower court only on appeal or petition for hearing would permit interference with the administrative proceeding pending the appeal or hearing, with the effect of completely destroying the effectiveness of the administrative body. The writ of prohibition can alone operate surely and swiftly enough to prevent this unfortunate result; and only if we recognize that the rule is jurisdictional will it be uniformly enforced. Bearing in mind the analysis of jurisdiction which has heretofore been made, and examining the authorities dealing with the rule, we are necessarily led to the conclusion that exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts.
In Myers v. Bethlehem Shipbuilding Corp., supra, an application was made to the federal district court to enjoin the National Labor Relations Board from holding a hearing, but the employer applicant did not comply with the board‘s procedure. The United States Supreme Court annulled a preliminary injunction despite the employer‘s contention that the board had no authority over it because it was engaged in interstate commerce. The court declared that to uphold the employer‘s contention would be in effect “to substitute the district court for the board as the tribunal to hear and determine what Congress declared the board exclusively should hear and determine in the first instance“. The court then went on to say: “The contention is at war with the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. That rule has been repeatedly acted on in cases
In United States v. Sing Tuck, supra, petitioner alleged that he was a citizen seeking to return to the United States. An immigration inspector decided against his claim of citizenship, and he failed to follow the statutory provision for appeal to the secretary of labor, seeking instead a writ of habeas corpus. The court denied relief, declaring (p. 167) that the act “points out a mode of procedure which must be followed before there can be a resort to the courts“. The opinion then states that even though it be contended that the administrative officers are acting without jurisdiction, “it is one of the necessities of the administration of justice that even fundamental questions should be determined in an orderly way“.
In Gorham Mfg. Co. v. State Tax Com., supra, it was held that a suit against the New York Tax Commission to enjoin collection of a tax alleged to be invalid and levied under an unconstitutional statute was properly dismissed for failure of plaintiff to avail itself of the administrative remedy provided by the statute for revision and correction of the tax. The court said (p. 269): “A taxpayer who does not exhaust the remedies provided before an administrative board to secure the correct assessment of a tax, cannot thereafter be heard by a judicial tribunal to assert its invalidity.”
In Red River Broadcasting Co. v. Federal Communications Com., supra, a broadcasting company appealed to the courts from a decision of the commission granting a permit for the construction of another station. The appeal was dismissed on the ground that appellant had failed to exhaust its administrative remedies and hence could not invoke the jurisdiction of the courts. The opinion, citing numerous cases, states (p. 284): “It is a well settled rule of judicial administration that no one is entitled to judicial relief until he has exhausted all prescribed applicable, administrative remedies. Generally, the rule is stated as being conclusive of the rights of one who prematurely asks judicial review, without intima-
In Porter v. Investors Syndicate, supra, it was said that “the legislative process remains incomplete” until the administrative remedy is exhausted.
In Western Powder Mfg. Co. v. Interstate Coal Co., supra, the court declared that it “has no jurisdiction of such controversies until the administrative remedies have been exhausted“.
This court recently gave the rule its full force in Collier & Wallis v. Astor, supra. In that case the Private Employment Agency Law required that certain controversies be submitted to the labor commissioner subject to later appeal to the superior court. Plaintiff sued on a contract coming within the scope of the statute, and defendant objected that no determination by the commissioner had been made prior to commencement of the action. We sustained the objection, saying (p. 206): “The provision of
The mere filing of the appeal with the commission, after the mandate and stay order had issued, was not a fulfillment of the requirements of the rule. It was purely a formal step, not intended to have any substantial effect, for the commission was then under the restraint of the court‘s order, and unable to act upon the merits of the case. The courts have considered this type of evasion and have held that the rule of exhaustion of remedies is not complied with by the mere filing of an appeal; the remedies are not exhausted until the appeal is fully prosecuted. Consequently the filing of the appeal with the commission is no more a compliance with the rule than the participation in the original hearing before the Adjustment Unit, or the first appeal before the referee. (See Southland Industries v. Federal Communications Com., 99 Fed. (2d) 117 [69 App. D. C. 82]; Chicago etc. R. R. Co. v. Basham, 249 U. S. 164, 167 [39 Sup. Ct. 213, 63 L. Ed. 534].) Thus, in Southland Industries v. Federal Communications Com., supra, where the petitioner applied to
3. The employers’ assertion of irreparable injury.
The employers seek to avoid the operation of the rule, however, by the contention that they would suffer irreparable injury if the administrative hearing were permitted to proceed and its orders made effective without judicial interference at this time. The cases they cite are those dealing with rate orders of regulatory commissions, where the administrative body imposes a confiscatory rate on a public utility. Continued operation of the business at the rate imposed pending the appeal may in some instances be so unprofitable as to amount to a destruction of the business, and therefore a taking of property without due process of law. The courts in these cases issue injunctions to stay the enforcement of the new rate until a final determination of its validity, in order to protect the constitutional rights of the petitioning utilities. In brief, these decisions establish the right to equitable relief to protect the property rights of a petitioner from irreparable
What injury do the employers show? They say that they will suffer in the event unauthorized payments are made to unemployed workers, because their accounts will be charged with such payments, and their reserve under
In the first place, their whole contention is purely speculative. The maximum contribution which they can be required to pay under the statute is 2.07 per cent. This cannot be increased, and the extent of their possible injury would therefore be the loss of a hoped for lower rate under the so-called merit rating provision of the statute. This provision enables employers with a favorable employment experience to obtain a slightly lower rate of contribution, when their account on the commission books shows an excess of contributions over benefits paid. (See
Second, it is provided in
The third answer is more fundamental; the mandate contravenes the express provision of
The proceeding instituted by the employers ignores this statutory objective, and attempts to do precisely what the statute forbids. Their position is that the challenge in a court of law of any of the numerous factual and legal determinations which the referee must make in any decision to pay benefits is sufficient cause for the statute to cease operating. They believe that to continue payments where the propriety thereof has not yet been settled by the courts is an invasion of their
The foregoing cases demonstrate the weakness of the argument that because a commission may make an occasional error in ordering some payment out of a public or semi-public fund, the courts must have the power to stay any and all payments during the lengthy period of judicial review. The legislature has concluded that it is wiser to have a system of unemployment compensation operating with a possible small percentage of error, than to have a system not operating at all. The legislative power to make such provision is unquestioned; the statutory language cannot be misunderstood; and for the courts that is the end of the matter.
To these arguments the employers answer that the statute does not in terms apply to the present case. Their theory is that the term “appeal” in
4. The assertion that appeal would be futile.
One final argument of the employers to justify disregard of the administrative remedy may be noticed. They assert that the commission has already decided cases on similar facts against their present position, and therefore that an appeal in the instant case would be fruitless. This is, indeed, the slen
It should be observed also that this argument is completely answered by those cases which apply the rule of exhaustion of remedies to rehearings. Since the board has already made a decision, if the argument of futility of further application were sound, then surely this is the instance in which it would
5. Jurisdiction to determine jurisdiction.
The final contention is advanced that though all of the above conclusions may be entirely correct, and that in consequence the District Court of Appeal has no jurisdiction to hear and determine the merits of the case, nevertheless it has power to hear and determine the question whether it has jurisdiction. If by this statement it is meant that the court had jurisdiction to determine whether the employers had exhausted their remedies before the commission, the record itself is a conclusive answer. The employers have affirmatively alleged their failure to exhaust their remedies before the commission, and their entire argument is devoted to an attempt to excuse such failure. On this point there is no issue presented, but only an admitted fact. If, on the other hand, the statement means that the court had jurisdiction to determine whether it had jurisdiction of the merits of the cause, it is indeed a strange argument. Stated plainly, the proposition is that a court may temporarily interrupt any pending proceeding, administrative or judicial, and hold that proceeding in abeyance while it decides whether it had any power to interfere in the first place; and during all this time it is immune from any restraint by a higher court. If that is true as applied to this case, then there is no control over unauthorized, arbitrary assumptions of judicial power except the slow process of appeal or petition for hearing. We cannot, of course, lightly accept such a destructive doctrine, and it must be rejected unless compelled by the strongest logic and precedent. But upon careful study and examination of the authorities cited, we find neither.
The proposition, stated simply, is that a tribunal has jurisdiction to determine its own jurisdiction. This is a truism, and, subject to certain implicit limitations, is ordinarily a correct statement of law. It has its origin mainly in the cases holding that a court has inherent power to inquire
But once the tribunal, judicial or administrative, has made this determination of the issue, and has acted to assume jurisdiction of the cause, the rule no longer has any meaning. The jurisdiction to determine jurisdiction has been fully exercised by a determination in favor of jurisdiction over the cause; the question is no longer of jurisdiction to determine, but of jurisdiction to act. And jurisdiction to act is always a subject of inquiry by a higher court. The cases cited by the employers declare well-established law and are in accord with this basic distinction. For example, in Noland v. Superior Court, supra, the superior court made an order to show cause in a custody proceeding. Petitioner appeared at the hearing and moved to dismiss the order for lack of jurisdiction. The motion was submitted, and while pending and undecided, petitioner sought a writ of prohibition from the District Court of Appeal. The writ was denied. Chester v. Colby, 52 Cal. 516, in which a demurrer raising the jurisdictional point was pending and undetermined, is to the same effect. In neither case had the lower court taken any action in the cause at the time prohibition was sought; it was simply considering whether or not it had jurisdiction to act.
The situation presented in the instant case is entirely different. If the District Court of Appeal, in response to the employers’ application and petitioners’ objection thereto, had taken under consideration the question whether it had jurisdiction to issue the writ of mandate, we would have no reason to interfere pending its determination thereof. But the District Court of Appeal did more than this; it acted. It did not
The controlling test of the correctness of the employers’ theory must necessarily be found in its practical operation. We have already referred to the cases which correctly apply it during the court‘s deliberation, and up to the time it acts. If it goes further, as the employers contend, we should expect to find some suggestion to that effect in the authorities. But all the California cases dealing with this situation have reached exactly the opposite result. In each case a commission or administrative officer assumed jurisdiction of a cause, and a superior court thereafter sought to take jurisdiction of the same cause. Under the theory urged here, if the court had jurisdiction to determine its jurisdiction, no higher court could stop this interference by prohibition, and the question
This, in Goodyear etc. Co. v. Hanby, 111 Cal. App. 382 [295 Pac. 562], an employee received an award from the Industrial Accident Commission and later sued in the superior court to enforce compliance therewith. It was held that the cause was within the jurisdiction of the commission, that therefore the court had no jurisdiction, and that a writ of prohibition should issue to prevent the trial. In Vallejo Bus Co. v. Superior Court, 19 Cal. App. (2d) 201 [65 Pac. (2d) 86], the Railroad Commission made an order permitting a utility to sell stock. The superior court gave a preliminary injunction. It was held that the court acted beyond its jurisdiction in thus interfering with the commission by such restraining order, and a writ of prohibition was issued to prevent the court from doing so. In Lee v. Superior Court, 191 Cal. 46 [214 Pac. 972], the Industrial Accident Commission, in a proceeding involving a nonresident minor, appointed a guardian ad litem to handle the award. The probate court sought to appoint a guardian of the estate. It was held that the commission‘s prior jurisdiction could not be usurped by the probate court, and that prohibition should issue to prevent its interference. Finally, in the recent decision in Evans v. Superior Court, 14 Cal. (2d) 563 [96 Pac. (2d) 107], the lower court sought to interfere by injunction with an administrative proceeding commenced by the Building and Loan Commissioner. This court issued a writ of prohibition to prevent such interference, saying (p. 415): “We believe that the trial court in the present case has acted and is acting in excess of its jurisdiction. . . . We have heretofore held that the statute authorizes the commissioner to appoint necessary assistants and it appears that the proceedings of the trial court are preventing the exercise of the authority thus conferred upon him.”
It thus appears that under established principles of legal procedure the District Court of Appeal was without jurisdiction to issue its writ of mandate, and that petitioners are entitled to a peremptory writ of prohibition. The employers’ application was founded upon an asserted right to judicial interference with an administrative proceeding before it became final, and hence impliedly claimed a right to interfere in the middle or the beginning, or even before any such
Let a peremptory writ of prohibition issue restraining the respondent District Court of Appeal from taking any steps toward the enforcement of its writ of mandate and temporary restraining order heretofore issued and directed against the California Employment Commission.
Edmonds, J., Traynor, J., Peters, J., pro tem., and Carter, J., concurred.
SHENK, J., Dissenting.—I dissent. The majority opinion and decision, when considered in connection with the decisions filed concurrently herewith in Gantner & Mattern Co. v. California Employment Com. (Sac. No. 5406, commenced December 5, 1939) and in Bodinson Manufacturing Co. v. California Employment Com. (Sac. No. 5407, commenced December 5, 1939), demonstrates the in
In the Gantner & Mattern Company case, the District Court of Appeal regularly assumed jurisdiction to determine the right of the petitioner to the relief sought. That court issued an alternative writ of mandamus pursuant to its constitutional power (
In the present proceeding in prohibition, it appears that on December 16, 1939, the Matson Navigation Company and others commenced a mandamus proceeding in the same District Court of Appeal, wherein that court likewise issued an alternative writ and was proceeding to hear and determine the matter on a return to that writ and on a set of facts raising the identical issues on the merits as were involved in the Gantner & Mattern Company case. Yet this court in the present proceeding halted the prompt determination of the Matson Navigation Company case and is now denying power in the District Court of Appeal to dispose of that case in like manner as this court has now disposed of the Gantner & Mattern Co. case.
Furthermore, in the Bodinson Mfg. Co. case, this day filed, this court by a ruling on the merits, and to the same effect as determined by the District Court of Appeal, has decided that the petitioner therein had exhausted the statutory reme
Yet, in the present proceeding, this court has declared that the District Court of Appeal is without jurisdiction to decide whether the Matson Navigation Company had exhausted its statutory remedies and, if so, to decide whether the claimants for benefits in that proceeding were eligible to receive the same, or if not to deny the relief sought, as it had done in the Gantner & Mattern Co. case.
From the foregoing the conclusion is unavoidable that if the District Court of Appeal in the first instance and this court on transfer had jurisdiction to pass upon the merits of the Gantner & Mattern Co. case, as conclusively appears by the course taken in that case, then the District Court of Appeal had jurisdiction to decide, on identical issues, the Matson Navigation Co. case. On the other hand, if the District Court of Appeal had no jurisdiction in the Matson Navigation Co. case (as has been decided), then it would necessarily follow that this court has no such jurisdiction, the petitioners in the mandamus proceeding are without remedy in the courts, and the commission allowed to proceed without the restraint universally recognized to be necessary in the proper application of administrative law.
The sole question presented in the present proceeding in prohibition is whether the District Court of Appeal has the power to decide a certain controversy pending before it. That question here is not whether the employees affected are or are not entitled to unemployment benefits, but whether the petitioners in the mandamus proceeding pending before the District Court of Appeal have stated a case which that court has jurisdiction to entertain and determine. In my opinion, that court has that power and to deny it by the issuance of a peremptory writ of prohibition is to deny to parties interested the right to seek redress in our courts against threatened unlawful action on the part of a state administrative board.
The case presented to the District Court of Appeal is one calling for a judicial determination of the powers of the Board under the statute of its creation. Particularly in that proceeding the problem is whether on the admitted facts the legislative remedy of appeal to the commission from the decision of the referee is adequate and, if not, whether it is not
In the mandamus proceeding, the District Court of Appeal was called upon to decide two principal questions:
First, whether under the undisputed facts found by or under the authority of the commission, the claimants for payments from the unemployment fund were eligible to receive the benefits.
“An individual is not eligible for benefits for unemployment, and no such benefits shall be payable to him under any of the following conditions: (a) If he left his work because of a trade dispute and for the period during which he continues out of work by reason of the fact that the trade dispute is still in active progress in the establishment in which he was employed.”
It is contended in the mandamus proceeding that the claimants, petitioners here, are not eligible for benefits under the foregoing section and under the facts found by, as distinguished from the conclusions of, the commission‘s referee. The question of the legal duty of the commission under the law and the facts was there squarely presented for that court‘s determination. The claimants have taken the position that the decisions of the commission allowing and directing the payment of benefits are beyond judicial review. Indeed, on oral argument counsel for the commission expressed this view. It cannot be true that this is the attitude of the members of the commission, who are public officers acting as trustees of a public fund which now contains an enormous amount of money collected from the employers and employees of the state for a specific purpose, namely, for the relief of employees who have been subjected to involuntary unemployment and who are eligible under the law to receive benefits. If the commission persists in payment to those who are ineligible to receive benefits, as is alleged in the pending mandamus proceeding, approximately a half million dollars will be unlawfully paid out of a fund whose beneficial and lawful administration was mistakenly anticipated in the litigation which resulted in declaring the constitutionality of the act under which the
To hold that a commission set up by a statute of this state with the highly important and responsible duties of the Employment Commission is not amenable to judicial process in the pending mandamus proceeding would be to constitute the commission an autocratic body whose functioning is uncontrolled by any consideration except its own whim and caprice. Such of course is not the law of this state, nor of any other jurisdiction, state or federal. In this state the District Court of Appeal has constitutional and statutory authority to direct public officers to perform their duties under the law. (
In my opinion there is not the slightest doubt that a justiciable controversy within its jurisdiction has been presented to the District Court of Appeal and that the issues there tendered present for determination also the question whether the petitioners before that court had exhausted their statutory remedies before the commission. This is the second principal question on the merits involved in the pending mandamus proceeding.
The majority opinion holds that the District Court of Appeal is without jurisdiction because the mandamus proceeding was prematurely brought in that the petitioners therein had not exhausted their remedies before the commission. It is noted that the Adjustment Unit of the Division of Unemployment Compensation in the department of the commission granted the application of the employees, petitioners herein, for the payment of benefits. Certain of their employers appealed from the determination of the Adjustment Unit under
“Any party to a decision by a referee may appeal to the Commission from such decision. The Commission may on its own motion affirm, modify, or set aside any decision of a referee on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence . . .”
The majority say the District Court of Appeal has no jurisdiction in the mandamus proceeding because the petitioners had not taken and prosecuted to a final conclusion an appeal from the decision of the referee to the commission under
“If an appeal is duly filed benefits with respect to the period prior to the final decision on appeal shall be paid only after such decision, except as herein provided.” Then follows the exception which is the crux of this phase of the present controversy. It reads: “If a referee affirms an initial determination allowing benefits, such benefits shall be paid regardless of any appeal which may thereafter be taken, but if such determination is finally reversed no employer‘s account shall be charged with benefits so paid as to each such determination so reversed.”
The main opinion decides as a matter of law that an employer must take and pursue to conclusion this last appeal to the commission before he may seek redress from the courts, notwithstanding the presence of an immediately enforceable order for alleged illegal expenditures from the unemployment trust fund. It is clear to me that a bona fide controversy is presented in the mandamus proceeding on the question whether the remedy provided by the statute for an appeal to the commission is an adequate statutory remedy as required by law, inasmuch as the benefits must be immediately paid notwithstanding the pendency of such appeal. It is of course well established that when the legislative department has set up an administrative board to ascertain the facts and to take
The foregoing arguments urged on behalf of the respondents are addressed to the merits of the controversy pending before the District Court of Appeal and are mentioned solely for the purpose of indicating that there is clearly a question of law presented to that court in a matter in which it has jurisdiction of both the parties and the subject matter under the Constitution and laws of this state.
The majority say that the provision for payment of benefits pending appeal, when an initial determination for payment has been affirmed by the referee, was designed to carry out the policy declared in section 1 of alleviating the evils of unemployment, as part of a legislative plan of social security. This may be true where the payments are to persons eligible to receive the same under the act. But where the fact of ineligibility is concededly established and payments are threatened to be made to persons expressly excluded by the provisions of the act, do the majority still mean to say that such payments will carry out the legislative plan? The majority also say that to permit these “justifiable and necessary” payments to be postponed for long periods would defeat the objectives of the act. Would it defeat the objectives of the act to halt payments of benefits expressly forbidden by the act? On the contrary, would it not defeat the objectives of
Finally, the writ of prohibition should not issue if there is a “plain, speedy, and adequate remedy in the ordinary course of law” (
Ward, J., pro tem., concurred.