122 Cal. 636 | Cal. | 1898
This proceeding is inaugurated by a writ of review to annul the action of the superior court of the city and county of San Francisco, W. B. Daingerfield, judge, in a proceeding pending therein. It is based upon the following facts: Petitioner, Kuhlman, was regularly subpoenaed as a witness to give testimony in a case of inquest pending before the coroner of the city and county aforesaid. He appeared and refused to testify, whereupon the coroner adjudged him guilty of contempt, and ordered that he be imprisoned in the county jail of the city and county of San Francisco until he complied with the order of the court requiring him to so testify. The coroner thereupon ordered the sheriff of said city and county to arrest Kuhlman and bring him before the nearest judge of the police court or judge of the superior court of the city and county aforesaid “to be punished according to law, and to have said judgment and sentence of imprisonment enforced.” Kuhlman was arrested and brought before the superior court, Daingerfield, judge, and upon hearing had'in that court the following order was made:
“It appearing to me from said order and warrant of said coroner that the said Charles G. Kuhlman has the ability, and that it is within his power to be sworn as a witness at the said inquest then and there and now pending before said coroner as aforesaid, and after the hearing of said matter, being now fully advised in the premises, it is hereby ordered, adjudged and decreed in open court that he, the said Charles G. Kuhlman, for his said contempt of the authority of said William J. Hawkins, coroner of the city and county of S'an Francisco, state of California, committed in the immediate presence of said coroner, in refusing to be sworn as a witness at the inquest then and now pending before said William J. Hawkins, coroner of the city and county of Sati*638 Francisco, to determine the canse of death of .... be punished by. imprisonment in the county jail of the city and county of San Francisco, of the state of California, until he complies with the order of said William J. Hawkins, coroner of the city and county of San Francisco.”
It is the aforesaid order that is sought to be reviewed by this proceeding.
It is now contended upon the part of the respondent, in behalf of the coroner, that the action of the judge of the superior court was not judicial, but ministerial, and that for such reason review is not the proper remedy to right the wrong, as there can be no such thing as an excess of jurisdiction in such a case. We pass this contention of respondent for the moment without decision. Whatever action the judge of the .superior court, or the superior court itself, took in the matter, its authority to act rests alone in sections 17 and 18 of the act of the legislature found in the Statutes of 1872, page 406; and, if that act is not in force and effect, the action here taken as outlined by the foregoing order, whether it be judicial or ministerial, must fall. Assuming then the order to be the result of judicial action, that action only has support under the aforesaid sections, and, if that support be taken away, the order of necessity must be null as going outride of the law.
The act of 1872 is one pertaining solely to the duties of the coroner of the city and county of San Francisco; yet the coroner of the city and county of San Francisco is a county officer (Kahn v. Sutro, 114 Cal. 316), and general laws pertaining to the duties of coroners are as applicable to him as to an other coroner of the state. In the County Government Act and in the Penal Code we find the general powers and duties of coroners quite fully set forth, and clearly those provisions are binding upon the coroner of the city and county of San Francisco. Whatever may be said as to the force and effect of the provisions of the act of 1872, not covered either by the County Government Act or the Penal Code, there can be no question but that all those provisions of the act which are covered by that general legislation are repealed. Hpon inspection we find section 1513 of the Penal Code providing as follows: “A witness served with a subpoena may be compelled to attend and testify, or pun
There is another reason why the proceeding taken in the superior court must be annulled. Clearly section 18 of the act of 1872 has no application to this case, for the punishment there prescribed is limited to fine or imprisonment, and no such penalty has been administered here. It follows that section 17 of the act is the only one whch has any application to the subject matter covered by this proceeding. Yet that section only allows the coroner to issue a warrant of arrest for the recalcitrant witness, and thereupon the guilty party must be ‘^brought before the police judge or county judge of his county to be punished according to law.” The particular proceeding contemplated by this section is not plain. Whether the section is intended to apply to contempts simply, or contemplates cases where a misdemeanor or felony has been committed, and upon the issuance of the warrant of arrest by the coroner a trial in the court having jurisdiction is to follow, is a matter of some doubt; but it is plain that the section gives the coroner no authority to punish anybody, and whatever may be the nature of the proceeding, whether a simple contempt or a trial of a criminal case, the power rests alone in the court to try it and adjudge the punishment. This construction of the law necessarily does away with the contention of respondent that whatever was done by the judge of the superior court in this matter was purely done in a ministerial capacity, and in no sense partook of judicial functions. Again,
In conclusion, we suggest that, if the af oresaid section 1513 of the Penal Code declared that a violation of its provisions would render the party so violating them guilty of a misdemeanor, thereby eliminating any question of contempt from the case, such legislation would probably do away with the complex and intricate questions of law involved in the consideration of matters of contempt claimed to have been committed before quasi judicial officers such as the coroner.
The order of the superior court is annulled.
Harrison, J. and Van Fleet, J., concurred.