213 P. 974 | Cal. | 1923
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *534
This is a motion to dismiss an appeal taken to this court from a judgment in "a judicial proceeding" (Stats. 1919, p. 1093, sec. 4.) brought and heard in the superior court in and for the county of Sutter, three judges sitting, upon the ground that the judgment is final and not appealable, either to this court or to a district court of appeal. [1] If the judgment is an appealable one and the appeal lies in the first instance to a district court of appeal, the appeal may be transferred by this court to the proper district court of appeal as provided in article VI, section 4, of the constitution (People v.McKamy,
The case now here upon a perfected appeal involves the validation of an assessment, aggregating in value some eight millions of dollars, of the Sacramento and San Joaquin drainage district, a governmental agency created by the special act of May 26, 1913 (Stats. 1913, p. 252), which is amendatory of the act of December 24, 1911 (Stats. 1911 [Ex. Sess.], p. 117). No contention is made that the said district was not legally organized, and, indeed, no such contention could be made, for the circumstances attending its creation are as adequate to justify such legislation for the creation of a drainage district as they were in People v. Sacramento Drainage Dist.,
The act of May 27, 1919, authorized the issuance and sale of bonds of the Sacramento and San Joaquin drainage district (Stats. 1919, p. 1092) and provided that after an assessment had been levied by the reclamation board, upon lands within the district, the board had authority to determine that it would be best to issue bonds to pay the cost of the works, etc., and that if the board did so determine it should commence "a judicial proceeding for the validation of said assessment" in the superior court for the county "within which the largest acreage of land affected by said assessment is situate" and that three judges should sit and act in the proceeding. (Athearn v. Nicol,
The provision forbidding an appeal is plain and unambiguous and beyond question is applicable to the appeal here sought to be dismissed. We are relieved, therefore, from any difficulties respecting the interpretation or applicability *536 of the provision purporting to prevent an appeal to the motion to dismiss now before us.
The motion to dismiss turns upon the solution of the question of whether or not the provision of the statute in question denying an appeal contravenes a claimed constitutional right of appeal.
All of the several arguments of the appellants may be merged into the one proposition that they have a constitutionally guaranteed right of appeal, and it will only be necessary for us to discuss and decide but one of the contentions made in that behalf, and that is that the validating proceeding provided for by the act in question is in its essence either a suit in equity or one at law involving the validity of an assessment and, therefore, falls within the appellate jurisdiction conferred upon this court and guaranteed to litigants by that constitutional provision which provides that this court shall have appellate jurisdiction "on appeal from the superior courts . . . in all cases in equity . . .; also in all cases at law which involve the . . . legality of any tax, . . . assessment, etc. . . . " (Const., art. VI, sec. 4.)
[2] Concededly the right of appeal from the judgment of an inferior to a higher court must be found either in the state's constitution or statutes and it is the settled rule of law that if the right of appeal is constitutionally granted in any given case such right cannot be destroyed nor delimited by legislative enactment. "The courts of this state derive their powers and jurisdiction from the constitution of the state. The constitutional jurisdiction can neither be restricted nor enlarged by legislative act. An attempt to take away from the courts judicial power conferred upon them by the constitution is void." (Pacific Telephone etc. Co. v. Eshleman,
And if the legislature cannot take away this right by direct enactment neither can it accomplish the same result by any indirect device. [3] While the legislature has, ordinarily, the power to create a new remedy for the enforcement *537
of a right or a defense against a wrong, it cannot, under the guise of creating a new statutory remedy, deprive a litigant of an existing constitutionally guaranteed right to defend, even unto a court of last resort, against the enforcement of an alleged right. This right to so defend, once existing, continues regardless of the form in which the legislature may cast the remedy. In other words, as was said in the case ofPeople v. Perry,
[4] In other words, the legislature cannot by the creation of a new remedy deprive this court of its constitutional grant of appellate jurisdiction if the right involved in the execution of the remedy is of a character which in its very essence is equitable and was of an equitable nature and character at the time of the adoption of the constitutional provision which gave to this court appellate jurisdiction over the subject matter of the remedy. It follows, therefore, that if the proceeding before us is included in that class of cases, in contradistinction to special proceedings, over which appellate jurisdiction has been given by the constitution the appellants have a constitutionally guaranteed right of appeal of which they cannot be deprived.
[5] The phrase "special proceeding" is used in the code practice in contradistinction to "action." That phrase has no reference to provisional remedies in actions at law or in equity. It has reference only to such proceedings as may be commenced independently of a pending action by petition or motion upon notice in order to obtain special relief. (Carpenter v. Jones,
But in dealing with the subject matter involved in the proceeding below we must have regard to substance rather than to form. Even though the legislature created in the instant case what is seemingly a new remedy if it be in effect a proceeding to adjudicate old rights which are equitable in their nature or a proceeding which in substance is an action at law, it will be treated as a "case" rather than a special proceeding. (Davis v. Judson,
In the Estate of Cheda,
[6] We cannot escape applying the same rule here, for, after all is said and done, the proceeding before us is one to establish, pro tanto at least, the validity of an assessment, and moreover, it has all the characteristics of a case, somewhat after the manner of a suit in equity, to quiet title to land. The purpose of the proceeding is to establish the validity of an assessment with a view to a bond issue. Once the steps taken in the process of levying the assessment are adjudged in the proceeding in question to be legal the obligation to pay will follow almost as a matter of course.
The proceeding instituted in the court below is undoubtedly a judicial proceeding. The statute creating and permitting the institution and prosecution of that proceeding declares and defines it to be a judicial proceeding; and it has been determined by this court to be a judicial proceeding in the case of Athearn v. Nicol,
The motion to dismiss is denied.
Kerrigan J., Waste, J., Myers, J., Wilbur, C. J., Seawell, J., and Lawlor, J., concurred.
Rehearing denied.
All the Justices concurred.