Civ. No. 1045. | Cal. Ct. App. | Mar 1, 1912
Lead Opinion
Petitioner presented his affidavit to the superior court of Los Angeles county in which it was alleged that he was a qualified and acting justice of the peace; that respondent Cannon was also a justice of the peace in said county; that one Kent filed an affidavit before said Cannon, charging that petitioner “did willfully, unlawfully and maliciously, on June 1, 1911, omit and refuse to perform his duty enjoined upon him by law, and refused to permit Jesse W. Kent, during office hours, the right to inspect and examine a public record, to wit, the justice’s docket, of which record and docket the said Thomas V. Cassidy was then and there the custodian, the said Jesse W. Kent, then and there being a citizen of said township, county and state, and being entitled by law to inspect and examine said public record.” That respondent Cannon, upon the filing of such affidavit, issued his warrant for the arrest of petitioner, and that said petitioner was taken before the said magistrate, and, objecting to the jurisdiction of the justice, refused to plead; that the said justice of the peace then entered a plea of not guilty and set the cause down for trial, and that the same is pending before said justice of the peace. It is alleged that he will proceed to try petitioner upon such charge, unless prohibited from so doing. Upon this affidavit the superior court issued an alternative writ of prohibition, and, upon a hearing, a peremptory writ was issued, prohibiting said Cannon from trying the case, or taking further proceedings therein, and taxing costs of ten dollars against him. From this judgment an appeal has been taken.
Counsel for both parties upon this appeal present only the question involved as to the sufficiency of the affidavit to disclose a public offense, it being respondent Cannon’s contention that a justice’s docket is a public record, and that under section 1032 of the Political Code public records and other matters in the office of any officer are, at all times during office hours, open to the inspection of any citizen of this state; and he contends that section 176 of the Penal Code is applicable, which provides: “Every willful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision shall have been made for the punishment
Judgment reversed.
James, J., and Shaw, J., concurred.
Lead Opinion
Petitioner presented his affidavit to the superior court of Los Angeles county in which it was alleged that he was a qualified and acting justice of the peace; that respondent Cannon was also a justice of the peace in said county; that one Kent filed an affidavit before said Cannon, charging that petitioner "did willfully, unlawfully and maliciously, on June 1, 1911, omit and refuse to perform his duty enjoined upon him by law, and refused to permit Jesse W. Kent, during office hours, the right to inspect and examine a public record, to wit, the justice's docket, of which record and docket the said Thomas V. Cassidy was then and there the custodian, the said Jesse W. Kent, then and there being a citizen of said township, county and state, and being entitled by law to inspect and examine said public record." That respondent Cannon, upon the filing of such affidavit, issued his warrant for the arrest of petitioner, and that said petitioner was taken before the said magistrate, and, objecting to the jurisdiction of the justice, refused to plead; that the said justice of the peace then entered a plea of not guilty and set the cause down for trial, and that the same is pending before said justice of the peace. It is alleged that he will proceed to try petitioner upon such charge, unless prohibited from so doing. Upon this affidavit the superior court issued an alternative writ of prohibition, and, upon a hearing, a peremptory writ was issued, prohibiting said Cannon from trying the case, or taking further proceedings therein, and taxing costs of ten dollars against him. From this judgment an appeal has been taken.
Counsel for both parties upon this appeal present only the question involved as to the sufficiency of the affidavit to disclose a public offense, it being respondent Cannon's contention that a justice's docket is a public record, and that under section 1032 of the Political Code public records and other matters in the office of any officer are, at all times during office hours, open to the inspection of any citizen of this state; and he contends that section 176 of the Penal Code is applicable, which provides: "Every willful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision shall have been made for the punishment *428
of such delinquency, is punishable as a misdemeanor." Upon the other hand, it is petitioner's contention that section 1032 of the Political Code guarantees only the right of examination and inspection, and in terms does not provide for the officer in charge of the records to permit or assist or aid in such inspection; that no duty in that regard devolves upon him by law, and claims that a case is presented similar to that ofEx parte McNulty,
Judgment reversed.
James, J., and Shaw, J., concurred. *429
A petition for a rehearing of this cause was denied by the district court of appeal on March 30, 1912, and the following opinion then rendered:
THE COURT. — The refusal to perform a public duty amounts to an omission in that regard and is comprehended within section 176 of the Penal Code. One refusing to perform a public duty is amenable to both sections 176 and 772 of the Penal Code. (Exparte Keeney,
Rehearing denied.
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 April 26, 1912, and the following opinion then rendered thereon:
THE COURT. — The petition for rehearing of this cause in the supreme court is denied.
The grounds stated by the district court of appeal in the brief opinion denying the petition for rehearing in that court states sufficient grounds for the reversal of the judgment. We do not wish to be understood as expressing any opinion as to the doctrines stated in the original opinion of that court.
Rehearing
The petition for rehearing of this cause in the supreme court is denied.
The grounds stated by the district court of appeal in the brief opinion denying the petition for rehearing in that court states sufficient grounds for the reversal of the judgment. We do not wish to be understood as expressing any opinion as to the doctrines stated in the original opinion of that court.
Rehearing
The refusal to perform a public duty amounts to an omission in that regard and is comprehended within section 176 of the Penal Code. One refusing to perform a public duty is amenable to both sections 176 and 772 of the Penal Code. (Ex parte Keeney, 84 Cal. 310, [24 P. 34" court="Cal." date_filed="1890-06-07" href="https://app.midpage.ai/document/ex-parte-keeney-5444634?utm_source=webapp" opinion_id="5444634">24 Pac. 34].)
Rehearing denied.
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 April 26, 1912, and the following opinion then rendered thereon: