217 P. 133 | Cal. Ct. App. | 1923
The plaintiff applied to the superior court for a writ of prohibition to restrain and prohibit the defendants from hearing or taking any further proceedings in connection with the hearing of certain charges filed with the county board of education of the county of Los Angeles against the plaintiff. In the petition for prohibition it was alleged that three certain members of the board were disqualified from hearing said charges by reason of bias, prejudice, and hatred toward the petitioner, and that said members prior to the hearing have determined out of such personal bias, hatred, and prejudice, to revoke the certificates of the petitioner as a teacher, regardless of the sufficiency or insufficiency of the charges made against him or of any testimony in support thereof.
In their return to the writ respondents denied that said members have any prejudice against the petitioner, and denied that they have for said reasons or at all determined what action will follow the hearing of said charges.
Treating the return as constituting a demurrer as well as an answer, the court entered an order that the demurrer be sustained. Thereupon, the court entered judgment wherein it was recited that it appeared to the court that the petition does not state facts sufficient to warrant the relief demanded, and ordered that the petition be denied. From this judgment the plaintiff appealed, and the transcript on appeal is now on file in this court.
Appellant has now made application to this court for a writ of supersedeas. It is alleged that respondents are threatening to, and unless restrained from so doing will, proceed with the hearing upon said charges, and "that unless said proceedings before said board are stayed pending the disposition of this appeal, the relief sought by petitioner on this appeal will be of no avail." [1] The single question presented at the hearing of this application relates to the power of this court by writ of supersedeas to prevent *529 respondents from proceeding with the hearing of said charges against appellant during the time of pendency of the appeal.
An alternative writ of prohibition was issued in the court below. Respondents contend that upon the entry of judgment in the action the alternative writ ceased to be effective and that the judgment itself is not a judgment which either requires or prohibits the doing of any act. Therefore, they say that there is nothing upon which a writ of supersedeas could operate. This contention appears to be sustained by the decisions in this state. Thus, in Southern Pac. Co. v. Smith,
In the Matter of M. O. Graves, ante, p. 168 [
In Wood v. Board of Fire Commrs.,
The granting of the writ applied for in the case at bar, even though it were called a writ of supersedeas, would in legal effect be the granting of an alternative writ of prohibition, as if this court could now exercise original jurisdiction, although the case is here solely for the purposes of appeal. This we think that this court is without authority to do.
Counsel for appellant have brought to our attention a decision of the supreme court of the state of Washington, which appears to sustain their contention. (State v. Board ofEducation of City of Seattle,
We cannot fail to be impressed by the decision of the supreme court of Washington, in so far as it emphasizes the situation in which an appealing plaintiff finds himself *531 in a case of this kind, where his application for the writ has been denied in the court below, and where the county board of education, regardless of the challenge to its jurisdiction, chooses to proceed with the trial of the charges. Nevertheless, we are constrained to deny the application for a writ ofsupersedeas, because the decisions in this state have clearly and consistently held that the only function of that writ is to restrain proceedings upon the judgment from which the appeal has been taken.
The application for a writ of supersedeas is denied.
Houser, J., and Curtis, J., concurred.