114 Cal. 466 | Cal. | 1896
Lead Opinion
This is an original petition filed in this court for a writ of mandamus to compel the respondents to render judgment in favor of petitioners as plaintiffs in a certain proceeding pending in the court of respondents, in which the petitioners here were plaintiffs and one M. R. Higgins defendant, in accordance with the prayer of the complaint in said proceeding.
The complaint in said case of the People v. Higgins, in which said Gesford was relator, contained two counts. In the first count it was charged substantially that the said Higgins had intruded himself upon the office of insurance commissioner, and that for certain reasons given in said complaint he had no title to said office. In the second count it was charged substantially that' said Higgins had accepted and was using a free pass, issued by a certain railroad company over the roads operated by it in this state, and that he had, therefore, forfeited the said office of insurance commissioner. In the prayer of the complaint judgment was asked that said Gesford be declared to be entitled to said office; that said Higgins was not entitled to but had forfeited the same; and that he, Higgins, be fined in the-sum of
It is our opinion that the petition should be denied. It is argued very strenuously by counsel for respondents that after the demurrer had been sustained to the first count of the complaint in the People v. Higgins, the case was then simply a proceeding to have defendant’s title to an office declared forfeited for certain alleged misconduct, and to have him punished by a fine; that this proceeding was then—whatever its form—essentially criminal in its nature; and that, therefore, the plea of not guilty was sufficient.
No doubt the proceeding was quasi criminal. It is true that the mere acceptance of a pass is not itself a crime; but one who holds an office and a pass at the same time may be subjected, by a proceeding like the
Moreover, under any view, the petitioners had by appeal “ a plain, speedy, and adequate remedy, in the ordinary course of law,” and, therefore, mandamus does not lie. As was said in People v. Pratt, supra: “If the court has committed an error in denying the plaintiff’s motion, the same can be reviewed on appeal, which is a speedy and adequate remedy in the ordinary course of law within the meaning of the four hundred and sixty-eighth section of the practice act.” If, when the case -of the People v. Higgins shall have come on for trial, the plaintiffs therein shall elect to submit it on a motion for judgment on the pleadings, and the court shall decide against them and render judgment for defendant, •an appeal will be the natural and regular remedy; and if the defendant therein shall continue to stand upon his present plea and refuse to ask leave to amend, he must incur the hazard of what this court may finally decide in the premises if the case shall come here regularly on appeal. The issuance of the writ of mandamus would forever preclude any defense upon the merits.
The prayer of the petition is denied, and the writ dismissed.
Van Fleet, J., and Garoutte, J., concurred.
Dissenting Opinion
The attorney general commenced an action in the superior court in the name of the people of the state, on the relation of Henry C. Gesford, against M. R Higgins, alleging that he was unlawfully holding and exercising the office of insurance commissioner. In addition to the statement of the cause of action the complaint also set forth the facts showing the claim of Gesford to the office, and prayed judgment that the defendant be excluded from the office and Gesford be put in possession thereof. The cause of action was set forth in the complaint in two counts, and the defendant demurred to each of these counts, and also demurred to the complaint as a whole, upon the ground that several causes of action were improperly
The order sustaining the demurrer to the first count of the complaint, without leave to amend, was equivalent to a judgment that the plaintiff was not entitled to any relief based upon that count; and the subsequent amendment to the second count had the effect to make that count as thus amended the only complaint in the action, and the sole basis of the relief sought by the plaintiff.
. The action was brought under section 803 of the Code of Civil Procedure, which provides:
*475 “An action may be brought by the attorney general in the name of the people of this state, upon his own information, or upon the complaint of a private party, against any person who usurps, intrudes, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state.”
Such an action is a civil action, whether it be regarded as authorized by the above section of the code, or as a proceeding instituted under the provision in the constitution giving to the superior court jurisdiction to issue writs of quo warranto. In People v. Perry, 79 Cal. 105, the court said of a similar action brought under the above section: “This is a proceeding substantially equivalent to that by quo warranto. It is the same as quo warranto, with something added.” (See, also, People v. Bingham, 82 Cal. 238; People v. Pease, 30 Barb. 588; People v. Thacher, 55 N. Y. 525; 14 Am. Rep. 312.) Mr. High, in his treatise on Extraordinary Legal Remedies, section 710, says: “The tendency of the courts in modern times being to regard an information in the nature of a quo warranto in the light of a civil remedy invoked for the determination of civil rights, although still retaining its criminal form and some of the incidents of criminal proceedings, the better doctrine now is that pleadings should conform as far as possible to the general principles and rules of pleading which govern in ordinary, civil actions.” As a civil action authorized by the Code of Civil Procedure, it is subject to the rules of pleading given in that code, section 421 of which declares: “The forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, áre those prescribed in this code”; and, by section 422, the only pleadings allowed on the part of the defendant are the demurrer to the complaint and the answer. The provision in section 446, that every pleading must be subscribed by the plaintiff or his attorney, and of section 465, that all pleadings subsequent to the complaint must be filed with the clerk, and copies thereof served upon the adverse party or his
There is no ground for considering that the present action is instituted under the provisions of section 772 of the Penal Code, or that it is to be regarded as criminal in its nature. The superior court can act under that section only when it has received an accusation in writing, alleging that the officer has charged and collected illegal fees, or has refused or neglected to perform the official duties pertaining to his office. The only grounds alleged in the complaint herein are the failure to file a sufficient bond, and the subsequent acceptance and use of a free pass granted to him by the Southern Pacific Company, a railroad corporation operated within this state, and of neither of these acts can there be predicated any turpitude or neglect of official duty. The people have prescribed certain conditions under which its officers may exercise the functions of the offices to which they have been elected or appointed, and have declared that in certain cases they shall no longer hold such offices, one of which is the acceptance of a free pass from a railroad or other transportation company. (Const., art. XII, sec. 19.) The acceptance of such a pass has no more of the elements of a criminal nature than would the acceptance by an officer of a lucrative office under the United States, or the absence from the state by a judicial officer for more than sixty days, or the voluntary removal from the county for which the officer was elected, either of which acts would be a ground for declaring that he could no longer exercise the office. (See People v. Leonard, 73 Cal. 230.)
Under a writ of quo warranto, or an information in the nature of a quo warranto, the defendant was required either to disclaim or justify. The state was not required to make any showing, but the onus was upon the defendant to establish his right to a judgment in his favor. He was required either to deny that he was in the exercise of the office, or to allege facts sufficient
It is unnecessary to determine whether the relator has any right to the office held by the defendant. If the defendant is rightfully in the exercise of the office, the relator can have no right thereto; and, if the defendant has no right to the office, it is immaterial to him whether the office is vacant, or to be held by the relator. (People v. Abbott, 16 Cal. 358.) The attorney general is authorized to bring the action upon the complaint of a private party, and it is not necessary-that it appear from his complaint, or be shown to the court, that such relator is entitled to the office (People v. Bingham, 82 Cal. 238); and, although the court may determine the right of the relator to the office (Code Civ. Proc., sec. 616), it is not required to do so. (People v. Phillips, 1 Denio, 388; High on Extraordinary Legal Remedies, sec. 757.) Nor will a defective averment of the relator’s right defeat the right of a state to a judgment of ouster against the defendant. (State v. Pomeroy, 24 Wis. 63.)
The refusal of the court to grant the application of the plaintiff “ upon the ground that the action herein was a criminal cause, and that a plea of not guilty was proper to the complaint as amended herein,” was not a judgment in the action or the exercise of any judicial discretion, but was a refusal to recognize the existence of the default, and to proceed in the case in the only mode then remaining for its action. The default of the defendant in failing to answer the complaint was an admission by him of the truth of the facts alleged in the complaint, and should have been treated with the' same effect as if these facts had been found by the court upon competent evidence. The plaintiff thereby acquired the right to a judgment that the defendant was unlawfully exercising the office, and that he be excluded therefrom; and the refusal of the court to recognize this right, and to give this judgment to the plaintiff, was a refusal to perform an act which, from the nature of its functions, it was required to perform. The court
Whether, in addition to such judgment, a fine shall be imposed upon the defendant, is, by the express terms of section 809 of the Code of Civil Procedure, left to the discretion of the superior court; but the right to exercise its discretion in this particular does not limit or qualify its duty to enter the judgment of ouster; and although it cannot be controlled in the exercise of this discretion, it may be compelled to' proceed to its exercise. The discretion given to the court is not to determine whether it will act, but is limited to the mode in which it will act, and, in such cases, mandamus will lie to compel a court to act and exercise the discretion given to it. (Jacobs v. Board of Supervisors, 100 Cal. 121; 2 Spelling’s Extraordinary Relief, sec. 1394; High on Extraordinary Legal Remedies, sec. 24.)
In my opinion the application for the writ should be granted.
Temple, J., and Henshaw, J., concurred in the dissenting opinion.
Concurrence Opinion
I concur in the judgment denying the writ. The action of the clerk in entering a default after the court had accepted the oral plea of not guilty was entirely nugatory. The question whether the defendant was in default or not was a question for the court and not for the clerk to decide.
The court decided—erroneously it may be conceded— that the proceeding was criminal, and that an oral plea entered on the minutes was sufficient. The motion for judgment was, therefore, a motion for judgment on the pleadings, and—it may also be conceded—was erroneously decided, but I do not understand that mandate is the proper remedy in such a case. The proper course for the relator, if he was confident of his position, was to submit the case for decision and final judgment on the pleadings, and, if the judgment went against him, to appeal.