118 P. 481 | Cal. Ct. App. | 1911
This is a petition for a writ of prohibition. In reply to the order to show cause, respondent filed a demurrer upon the ground "that the petition does not state facts sufficient to authorize the issuance of the writ prayed for," and thus is presented the question for determination. It appears that on the sixteenth day of November, 1910, the board of supervisors of the county of Sacramento, after duly canvassing the returns of the general election held on the eighth day of November, 1910, by resolution duly passed, declared the result thereof, and on said sixteenth day of November, 1910, by resolution passed and entered on its minutes, the said board of supervisors declared the petitioner elected to the office of justice of the peace of said Riverside township. On the ninth day of December, following, Michael F. Shelley filed, in the office of the county clerk of said county, a statement of his contest of the right of petitioner to said office of justice of the peace. On December 15th the court made an order setting the twenty-eighth day of said month as the day upon which a special session of the court should be held to hear said contest, and directed the clerk of the court to issue a citation directed to said Charles O. Busick, citing him to appear on said date and answer the contest of the said Michael F. Shelley. Said citation was issued, and on said twenty-eighth day of December, the said court convened for the purpose of hearing said contest and also the contest of J. S. Hill v. Superior Court,
It may be observed that the record, as above recited, suggests certain questions of irregularity in the proceedings or of possible abuse of discretion on the part of the lower court that might be the proper subject of discussion on appeal but which are not germane to the consideration here, which relates entirely and exclusively to the jurisdiction or legal authority of the court to make the orders in controversy. And it is manifest that we are concerned only with the validity of the said order directing analias citation to be issued and fixing the thirty-first day of May for the hearing of the contest.
As to the authority of the court to issue an alias citation where the original has not accomplished its purpose, there can be no doubt. This question has been decided by the supreme court in O'Dowd v. Superior Court,
As to the order fixing the time for the hearing of the contest, the situation in the O'Dowd case was different from what we have here. There, the hearing was not continued beyond the twenty day limitation after the time originally set for the *503 trial of the contest. Here, as we have seen, the first order was made on the fifteenth day of December, 1910, fixing the twenty-eighth day of the same month for the date of the contest. It was nearly five months thereafter, to wit, the nineteenth day of May, 1911, when the order was made for the issuance of the alias writ and fixing the thirty-first day of May for the hearing of the contest. Said section 1121 provides that "The court must meet at the time and place designated, to determine such contested election, and shall have all the powers necessary to the determination thereof. It may adjourn from day to day until such trial is ended and may also continue the trial before its commencement for any time not exceeding twenty days for good cause shown by either party upon affidavit, at the costs of the party applying for such continuance." It is the contention of petitioner that by virtue of this provision the superior court exhausted its jurisdiction to hear the contest, since it was continued for more than twenty days beyond the time originally fixed. It is insisted that proceedings to contest an election are special and summary in their nature and that this limitation is inconsistent with the exercise of the general discretionary power of granting continuances possessed by courts in ordinary civil actions, and that the expression of the particular modes and time of continuances is exclusive of all not enumerated.
It is to be remembered, however, that, while the proceeding is statutory and summary and the "provisions" of the statute, as said in the O'Dowd case, supra, "contemplate a speedy adjustment of the question as to who is legally entitled to an office, but the speedy determination which the legislature had in view is not to dominate the construction of these provisions so as to defeat altogether the right to 'have a contested election settled on its merits unless such construction is imperative. A determination on its merits is what the statute mainly has in view." We think the same liberal spirit of interpretation which led the supreme court to hold that the power in reference to the citation is directory merely should be applied to the section before us and should lead to a like conclusion. Indeed, we have authority for the position that this section is not mandatory and exclusive, as contended by petitioner. (Thomas v. Van Zandt,
In the Hagerty case, supra, the district court of appeal of the first district, after citing section 1118 of the Code of Civil Procedure, declared: "Notwithstanding the use of the word 'thereupon,' the requirements of this section with reference to the time of making the order designating a special session of the court are not mandatory. The word 'thereupon' does not necessarily mean immediately"; citing cases. In that case, on the twenty-fourth day of January, 1910, the trial court had made an order "that the motion to dismiss proceedings be and the same is hereby granted and that judgment of dismissal be entered." From this order an appeal was taken and the said appellate court, on March 21, 1911, reversed the judgment and the trial court was directed "to designate another day for a special session of the court; to thereupon issue an alias citation for service upon respondent, and upon a return thereof showing a service in the manner and within the time required by law, to hear and determine the contest." Thus, the court held upon appeal that it was not only within *505 the jurisdiction but the duty of the lower court to make another order fixing another date for the hearing of the contest, which order would necessarily be made more than a year after the first order was entered and, indeed, more than a year after a judgment of dismissal of the proceedings had been entered. It is impossible to construe said decision otherwise than as warranting respondent's action herein.
But, viewing one or two of the vital considerations a little more in detail with the single object of testing the jurisdiction of the court to make the order in controversy, it becomes more manifest that the court below has not transcended the bounds of its judicial authority. If there had been a judgment of dismissal entered, as in the Hagerty case, supra, it could probably be maintained that the whole cause had thus been withdrawn from the cognizance of the court, and as long as such judgment was not suspended or set aside by appeal or otherwise, it would, of course, preclude any further proceeding unless a new action were brought. Here, however, no disposition was made of the action itself. There was, rather, nonaction on the part of the court, as far as the determination of the cause is concerned. There was no hearing whatever upon the merits, and there was simply an abatement not of the cause itself, but rather of that particular trial under the original citation. As far as the contest itself is concerned, it is still pending in the lower court. The written statement of the grounds of contest, which may be considered the complaint, is unaffected by any order that has been made and it still invites the consideration of the court. It is this statement which gives the court jurisdiction of the subject matter of the action. (O'Dowd v. Superior Court,
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 24, 1911.