*1 15286. In Bank.November F. No. 1934.] [S. Petitioners, v. THE SUPE al., CHARLES PIERCE et al., et RIOR ANGELES COUNTY COURT OF LOS Respondents. *2 S, Packard,
John C. Irl D. Brett E. Grainer for Petitioners. Webb, Attorney-General, Campbell S. and L.
TJ. G. Howie, Deputies Respond- James for Attorney-General, S. ents. Chandler, Anderson,
II.W. Jefferson Isadore Dock- P. Byron Files, weiler, Ray J. Walter C. Hanna and K. Tuller Respondents. as Amici on Behalf Curiae proceeding prohibition This isa THE COURT. superior respondent restrain court making any pending action order orders an further before it. numbered 379410 in The action referred said court People the State California, is entitled: “The on Attorney-General, Webb, U. S. v. Paul relation O. complaint 18, 1934, was filed on October et al.” Pate brought purpose for of canceling was T registrations alleged Angeles fraudulent Los of voters in Upon respondent County. filing complaint 24,000 requiring defendants, court issued an order some special why number, to show cause master before registrations should found that canceled. The per- cause impracticable was the order to show serve sonally upon that, in lieu directed defendants and service, personal published such once the order be be inserted Daily item Angeles Journal”, and news “Los could daily the defendants papers city inspection ascertain whether were sued designated places. order to cause on show file at certain by, present on 22d October commenced some of the defendants on behalf of all of them. respondents way demurrer
The return of the facts, want of sufficient answer which shows supplemental and 24th issued a October the court requiring postal to be order to cards amended show cause summons service of defendants. Personal mailed to said *3 specifically dis- provided other for and notice was not voluntarily ap- pensed defendants with. Certain of the inten- court has announced peared in action and the said personally tion defendants not served proceed as to the adjudicate right appeared, and have not who general vote the to be on at election held November 1934. power petitioners the-respondent herein attack the The of ground pending action on the that proceed the court to subject-matter jurisdiction has no of the of the the court juris- jurisdiction, such has no and, if it has action persons of the have diction of the defendants who not personally have not appeared and been served. proceed by an action in
The the state superior purge great register equity court the seriously questioned. registrations not may of fraudulent provide high prerogatives of the state to is one of the safeguard Without this the honest elections. for and insure stability people government the of the of the liberties hold, If, may as be at an end. we the state main would attorney-general of the action the tain such an may attorney-gen not be attacked. The institute it state, powers eral, law of the has broad the chief officer as law, any common the absence of derived 762
legislative restriction, power has the to file civil action or proceeding directly involving rights interests of the state, necessary he which deems for the enforcement of the laws of state, preservation order, and the protection public rights (People Strat interests. v. ton, 25 Co., Cal. 66 242; People & Pun Ditch Gold Min. Cal. Beaudry, 138 Rep. ; Pac. 56 Am. People [4 80] Cal. Front 610]; People v. Oakland Water Co., Jur., p. 561; 305]; Cal. 234 p.L., 918; 812.) R. C. Jur., p. Cor. petitioners
The jurisdiction claim that subject-matter lacking remedy because an identical afforded section 1109 Political Code. That section provides “any person” bring superior registrations. court to attor cancel fraudulent ney-general “any person” asserts that the state is not provided by We that section. have not been referred to none, authority, have discovered state is so we although included, purpose of an action under section pending 1109 is the same action. But neither is the upon section to be a restriction the broad construed as remedy powers attorney-general. The fact that a given private to a individual to institute such an action operate deny power of could the attorney-gеneral not bring similar action behalf We section. conclude that independent exists subject-matter respondent has the action. persons
But of the defendants appeared who not have and who have not been served with or who been personally summons have not served with the appear. legislature might cause, order not to show does provide for constructive or substituted cases, service such states, as has been done other but it done so. We then look to the must law the state as to what service *4 necessary. is right suffrage may
Before the be denied to an indi- opportunity vidual he must have notice and an to be heard provided by manner law. Here in the the substituted ser- applied sought available, vice to be is not person be obtained in of the must the usual per- manner by by service, or substituted service of pro- sonal summons Procedure, in before vided section of the Code of Civil This adjudicated. rights litigant finally in in rem or is true whether action be under law law provided personam where, here, service is except personal sеrvice. summons or other the state action, though provisional, Any pending in the order made right at deny to vote any defendant would final effect November would be election on adjudication elective franchise exercise the as to that election. Appeal Ash v. holding
The Court the District directly Superior Court, App. 841], is applicable proceeding. to this There an elector sued alleged fraudu- cancel section Code to Political registrations registrations. lent were whose voters claimed to fraudulent made defendants were not registrants neces- properly action. were held that the could be parties before sary action, said and that regularly deprived they must be of the valuable to vote particularly true process. served This is when legislature provided for has not some lawful method sub- prohibition and peremptory service. stituted writ follows, issued, was therefore order, limited as heretofore appropriate: herein court ordered, respondent superior
“It is making entеring hereby prohibited be and it judgment, pending decree order or People entitled: ‘The the State of California Webb, Attorney-General, Plaintiff, v. U. S. relation of al., Defendants’, numbered in said Paul O. Pate et court, affecting rights adjudicating status, or regularly served has not been in said action who defendant personally with summons or who been otherwise appear appeared in has not served with notice to who said action. prohibition accordingly.” issue writ of peremptory
“Let Dissenting. THOMPSON, I dissent. It funda J., high prerequisite prerogative mental issuance appear in made to that the prohibition it be writ threatening acting to act or is excess tribunal ferior understood that This rule is so well jurisdiction. of *5 require does not authority. the citation of However, refer- ence be had to Truck Sales Co. Justice’s Traffic Court, 306], Cal. 377 and cases there cited. It petitioner is manifest that the rule is not met case. It seriously respondent was not contended that the subject-matter had of the logi- and, indeed, I do not argument believe such cauld cally pаra- must the advanced. be conceded that one of of republican mount duties government of form to assure its citizens through power that the channels which the people is pre- and exercised their will made known shall be pure illegality. served and unimpaired or To fraud regard deny perform the state the duty in this is to impotency confess its to maintain its existence. Ac- cording complaint great the filed in the court below the register many persons contains the names thousand who falsely fraudulently are registered; and and that “thousands placed fictitious names have been vote, persons list for the manifest lawfully entitled purpose unlawfully voting unlawfully influencing and alleged general It is further result of election”. that because and registration, “fraudulent fictitious registered the will of majority lawfully quali- candidates, electors, fied their choice of will be defeated general at the said falsely registered election” unless those prevented voting are and restrained from thereat. In addi- tion, among alleged, things, peoplе, other that these fraudulently registered, given claimed to be have as their is a vacant and address one “which uninhabited lot” and signed given false and fictitious names have as .well as “a registered false address” “at and fictitious different precincts places numerous same, times given place places fictitious name or names fictitious precinct”. complaint within each residence sets adequate practical forth the state without an remedy decrees, unless the court “enters its orders and registrar enjoining voters is made a [who defendant] certifying each and all the names of the other caption ... offi- election named defendants respective prayer asks, precincts”. cers in their relief, registrar “be voters to other addition certify why he should names to show cause directed officers election to the defendants other each and all of said election on general precincts at respective of their to show order In return to 1934”. November registrar of Kerr, as defendant appears cause it “has submitted appearance voters, a formal has made jurisdiction of the court”. People In the case of 35 Colo. Tool, *6 822], (N. S.) which it Rep. L. R. A. Am. St. thousands only registration “many true involved not of the but also a con- false, fraudulent, of and fictitious names” and among majority the commission spiracy of election election, fair precinct prevent a judges election in each to my principles which, of to the enunciation certain we find state, “The its We read: mind, are irrefutable. there being, is in- capacity, by very terms of its sovereign the exercised and dis- powers duties to be trusted protection charged welfare, the general for the exercise of In the rights liberties of its citizens. discharge duties, it is not powers of these these and the may employ. inter- it remedies which restricted the pro- election is not limited to the of the state in a pure est punishment those, be afforded may tection which relating violate laws through prosecutions, criminal who- permitting repeat- lists, by padding to elections conspiracy If a ing, falsifying elections returns. violative to commit frauds of the magnitude charged, exists state, then rights the citizens of the most sacred wrongdoers would and convict the be attempt prosecute to to an honest elec- then, in order secure If, the state futile. punishment prosecution and limited tion, be should charged, the guilty of the frauds might be those who of- mercy at of those are who people this commonwealth frauds; these the state is commit not so to have combined by a accomplished result impotent. The to character, institute, rather than its con- may state which the appeal It has the to to power. its the test of stitutes powers by exercise of its for a determination this court which, prevent wrongs process, to its appropriate an duty prevent. Certainly to capacity, is its it sovereign not as why it is wise for the good advanced reason can be in- action, prevent offense, to civil of a means citizens, rights liberties of its or the affecting juriously as it attempt would tо punish, wait and punish, or the offender for a crime after it been committed.
“It
duty
preserve, pure
undoubted
state to
and unimpaired, every
through
powers
channel
are
exercised necessary
protection
for the
rights
and liber-
ties
Deny
of its
power
citizens.
supremacy
and the
government
the state
rights
is denied. The
of citizens which
impaired
will be
if
committed,
the frauds threatened are
are
importance.
of the most vital
prevented,
If not
then the
of the state,
interest
as well as the interests of those whom
protect,
is bound to
injuriously
will be
affected. The
power
which the
state
exercise
such circumstances is
independent
wholly
of other remedies at
law.
is the
by information,
attorney-general,
function
protect
rights
public,
doing
and in
so
he has
injunction
remedy
prevent
resort to the more lenient
wrongs against
public
than wait until after their
rather
commission,
punish
wrongdoers.
seek
then
respondents
bill discloses that certain of
have
entered
conspiracy
illegal
charged.
into a
commit
acts
These
acts will affect the entire state.
Individuals cannot invoke
enjoin
acts,
equity
but
of a court
these
*7
sovereign capacity
parens patriae,
in its
has the
power
right
protect
court
equity
to invoke the
of a
to
incompetent
when
are
to
for
its citizens
act
themselves.
object
illegal
the
state is not bound to wait until
The
deprive
people
which
combination
effected
will
the
liberties,
may bring
but
rights,
and constitutional
prevent
consummation;
at
to
and
the
once
its
while
writ of
employed
suppress
injunction
such,
be
not
to
a
crime
though constituting
yet
acts,
crime,
a
will
when
interfere
citizens,
privileges
the
liberties, rights and
state
with the
enjoin
only
right to
the commission
the
of such acts
has not
(In
duty
Debs,
do so.
re
its
to
767 Rep. 183]; In re A. Am. St. L. R. [48 497].) the N. In W. Honor, Wis. Court Brewer, after dis case, Mr. Justice supra, celebrated Debs in the action cussing government hаd the interest.which the against contempt Debs proceedings out of which for govern arose, having reached conclusion ‘We not care protect, a do had to property ment Every gov upon place ground alone. to our decision powers being with of its ernment, very intrusted terms general discharged for and duties to be exercised welfare, apply its own courts has a and the dis proper in of the one the exercise assistance answer to sufficient charge other; and it is no pecuniary inter appeal has those that it one of courts pro obligations est the matter. it n mote wrongdoing of all, prevent the interest welfare, often of general resulting injury one ” give standing in itself it court.’ sufficient to a In the of Aichele v. People, Colo. case alleged county deputies it his 1122], was clerk and conspired unlawfully corrupt had an election and pursuance per- deputies thereof “defendant and have his upon mitted allowed and made caused to entered registration sheet and books his office at divers times registrations many persons thousand false and fraudulent registered qualified precincts not to be several many county and persons also fictitious entitled names as registered”. prayer county to be was that clerk enjoined certifying from fraudulent fictitious to the election officials. The names court “We do said: why equity, in ordinary not see of its exercise jurisdiction, equitable not the same to restrain registering public certifying officer or fictitious original making changing persons, or after statute, prevent time fixed as would have upon entering public public officer from records false instruments, forged or those which are entitled to be *8 upon respect At placed record. least with to the allegation complaint that the defendant knowingly has wilfully upon and entered made books persons, of fictitious and has is names made and making registrations changing original the same after the time by law, fixed question there can no that it is within of power equity prevent a court render harmless of to illegal аcts, and, in doing supervising it sense so, is such controlling V the conduct of an election. equitable It must follow these from declarations of the principles sequence as well from reason the natural of that the state has the courts through undoubted purge registrations to its records of false and fraudulent prevent order to the consummation of fraud. an election may purpose We argument admit for the the court that jurisdiction acquired persons not below has of those appeared who have not in answer order to show jurisdiction cause, but it has those to who have submitted (cid:127) jurisdiction by appearance, including registrar necessarily however, That it not follow, voters. does that every case the court is without to make an affecting person property order status or even the of a acquired whom the jurisdiction by over court has not process, passing I desire in service to call attention to the Superior ante, p. recent case Court, Nichols (2d) 380], prevent upheld wherein to fraud we apрointment of a receiver an order payment for the alimony pendente property out of the lite without the service order cause or summons show on the defendant. go is However, it not essential here that length we to that jurisdiction. in this case establish must Now let us we assume, accordance allegations complaint many regis- that persons have vacant tered from and uninhabited lots and from fictitious addresses, and that such facts irrefutably ap- are made pear successfully to the court. Can it be asserted that the authority order registrar the defendant certify voters not to such names to the election officials? argue plain absurdity registered It one from a duly uninhabited registered “vacant and lot” is a elector. equally obvious he has no protect. I palpable supposing eases where unescapable am registration is fraudulent and only, pur- fictitious for the illustrating the fact that the court is pose not without to take action. In supplemental some respondent cause the order show amended court has great be stricken names register. that the *9 indulge supposition We that names will be cannot thoughts improperly, stricken but our to those must confine registrar whom of voters has the to order the drop. Court, App. The case 33 Cal. Superior of Ash v. although Pac. 841], not of the case it is the measure here, brought by because it one an individual under is Code, express authority of section of the Political recognizes weight I in rule which think is entitled to through this case. The District of Appeal, speaking Court Presiding may Mr. Justice Conrey, said: “There in- be in stances which authorized 1109 of section may the Political prosecuted Code judgment a valid compelling rendered the clerk registrations to cancel without bringing party any person as defendant than other necessarily clerk. This would seem be so in case of the registered. person may death of the But whatever be said registrations other instances of cancellation of provided Code, section the Political we think that completed cancellation of registration without person sought notice to the whose to be arbitrarily cancelled cannot be exercised and without notice under included within the action circumstances pending superior now in the court.” Even' as in case registered, of the death of the one must it be in registered so the ease of those who are residence which does not fact exist.
In case People, supra, Aichele v. the action was against only. the clerk
Section cannot be used argue from which to brought in a case purge its records, state the name sought person to be removed must party be made a for First, several reasons. there is no such requirement although proper section the court case, such case, require Second, gives it. the Ash the section right which, according an individual a Tool, People v. he not section, would have without but supra, right, lodged of statute, exclusively absence the state.
Third, lastly, if it were equity so construed procedure not confined to a law which is inadequate. prayer Furthermore, general relief, the. jurisdiction, interfering without has the with the duly registered elector, protect and in order to state from fraud prevent consummation, and to its wholesale to take effective prevent and to assure measures illegal citizens that cast. fraudulent votes will not be In People Tool, equitable in the exercise of supra, jurisdiction the length court went appointing two watchers in each precincts purpose for the observ- ing how the election was conducted. I know of no reason why the arm equity may every precinct reach to *10 wherein it is claimed registrants there are for the fictitious purpose securing an honest election. So Ido read Tool case and Iso think does conscience dictate.
It is evident, therefore, the respondent is court vested jurisdiction, with I and cannot but feel it should be left free to exercise jurisdiction. The peremptory writ should be denied.
LANGDON, J., Concurring Dissenting. in I concur the above order in prohibits so far as it the lower court striking great from register the names оf electors appear who were not served and superior did not in the court proceeding. I dissent from the order because of its manifest grant full appropriate failure peti- relief to which entitled, tioners are namely, prohibition of all further proceedings in the court below. application
This is an for an prohibi- alternative writ of tion, respondent superior to restrain the making court from contemplated orders, the effect which deprive would petitioners defendants in an action pending therein of right general to vote at the election on November 1934. pure patriotic However the motives it, behind this proceeding should never have been commenced. It should stayed immediately by have been this court on application prohibition, for the alternative writ in accordance practice peremptory uniform of this court. A pro- writ of restraining hibition should now all issue, further activities respondent matter; court this and all orders heretofore perfectly made be annullеd. It should is clear now that proceeding perversion the action below is a sham and a absolutely void, process, court and it can have no effect prevent eligible intimidate and than to 'other voters from going polls. outrages every justice principle It play. brief, attempts, fair In personal in a adjudicate superior court, off cut the constitutional 24,000 defendants, personal vote of over without upon upon pur- service of kind said defendants and ported by publication names, mass of without service alphabetical addresses, order, single and not even on a occasion, newspaper some circulation. respondent in open
It was admitted court counsel for says. that its respondent order does not mean what it that, court now notwithstanding declares its threat to cancel all appear defendants who failed to an- swer before fixed, prevent any a date it will not them appear who do not before voting it from at the November election. Counsel state that thе effect of this order is merely “challenge gross” of petitioners to proceeding, vote. The either as originally instituted attorney-general interpreted by now respondent court, respondent admitted and, far in so reported as the show, decisions precedent is without parallel in this or other state of the Union. contrary law, good morals, and
to sound statesmanship. contrary to law because the subject over the matter or the *11 persons the of contrary good It is defendants. morals unjustly deprive because will it right citizens of the vote, many rights of whom have actual notice that their any way in questioned. are contrary It is to sound states- manship large because it prevent seeks to numbers of freely citizens of this expressing from state their will at the polls, proper legal without a determination of their thereby striking rights, at the very heart govern- of free is, ment. It moreover, unnecessary, because the law it ample stands safeguards now contains against fraudulent voting. There will not be one fraudulent vote in cast Californiа, if state of the facts concerning fraudulent presented are officers, election they and perform prescribed by their duties as legal law. The pre- sumption is that these duty. officers will do their
I make no criticism of activities of citizen group citizens, conducting investigations in to discover registrations. false Whether official or origin, otherwise in
such investigations the results public are interest. If challenge of these efforts at are made the basis polls, they fully legitimate purpose. accomplish will their It within is it is a officers, the election duty report inherent in attor- offices, their to the district ney swearing. say cases of false is safe to that challenged’ investigations, knowledge voter, with of these required will not take place the oath him himself peril prosecution of criminal able he is perjury, unless justify right his claim of vote. The election rolls purged registrations. should of course be of false opportunity always been is present do this still present. prescribed by But the method should be fol- law lowed, challenge and the methоd of set forth in Political similarity Code bears not the taken remotest by the court below.
There was no ground justify whatever to invention of unique equity proceeding. this and drastic IWhile do question good respondent faith of counsel, it remedy. clear have mistaken their stress, public
In times of hysteria, excitement and highest court, tribunal stand as a must protecting rights every bulwark citizen within its duty borders. Its is clear must If not falter. to- day, process without due law, the vested qualified polls citizen to exercise his 'franchise at him, tomorrow, process taken without due of law, the ownership property away. vested taken While the Constitutions of this state and of- the United stand, permit this court cannot States such action. 18, 1934, On October the action under review here Superior filed Angeles Court of Los County, “People entitled' the State on relation of California Webb, Attorney-General, S. Paul O. vs. Pate” and U. others. 24,130 persons Approximately were named as defendants. registrar joined of voters was also as a defendant. The alleged plaintiffs guilty that defendants were of fraudulent obtaining registration public practices in required' names stricken from the terest election *12 prayer appoint was that court rolls. master deputies, recommend to hear power to determine right of the various defendants to vote at the next general to show an order election; and that the court issue cause, before directing every appear each defendant officers, these any defendant providing that the name register. not appearing great shall be from the stricken attempt No but parties, was made to serve court, objection over amici as appearing of counsel directing curiae, prayed, issued order to show cause 1934, and appear defendants on or before October ordering failing that all their names appear should have voting. from register stricken and be restrained' The court be also cause directed that order show published Angeles Daily Journal”, once “Los copies that posted public places. three Shortly сause, after the rendition of order to show five of the said acting defendants, themselves on behalf of and the representative others in character, ap- filed this plication for a writ prohibition, charging the con- templated action of the lower court will be in excess of its jurisdiction. position petitioners sound: The lacks subject jurisdiction, both of the matter and parties. subject
Jurisdiction of matter, of the court to consider the particular class eases to which the cause belongs, is of pro course essential the validity ceeding. it, Without judgment wholly void; the court’s and, unlike person, over the it cannot be con by any ferred voluntary form appearance or consent. (Harrington Superior Court, ; 15] 1 Freeman on ed., 674, 337.) 5th Judgments, sec.
The proceeding attorney-general purports brought general equity under the powers of superior provision court. No for it is found in the statutes of this govern which of course our regardless whole procedure, of whether the form of the action originally “equitable” “legаl”. Hence the court is without unless it first, can be established that there is wrong a serious judicial action; evil which calls for and' second, existing provide procedure remedy statutes it, or, commonly stated, adequate remedy there is no at law. But the unverified document filed the attorney-general, Injunction” “Complaint pretense labeled makes no meeting alleges basic test. plain, “that there is no
774
remedy
speedy,
adequate
for
correction
or
at
the
law
of said
is no
registrations;
false and fraudulent
there
practical
through
remedy except
of a
interposition
the
equity”. Apart
court of
from
of the
the bald assertion
Linscott,
pleader, repeatedly
(Streator
held insufficient
v.
This seem to would made was, of this court that the fact, members below action under Political section 1109, Code and therefore jurisdiction. The the court’s within proceeding, place, purport brought does first sec- said injunction secondly, tion; it seeks an and section relief; thirdly, no such section 1109 requires authorizes per- intended defendant, sonal each none was service on whereas fully attempted aware here. respondents, Counsel for section, requirements of their failure to meet the of strenuously have argument insisted in briefs oral peo- entirely brought by is an proceeding, different ple Accepting, sovereign state in capacity. their, must, we examine characterization of let us action, cases submitted to establish over it. are,
These
Thus,
Gib
exception, inapplicable.
without
225],
son v.
Supervisors,
Board
opin
grounds
bond election was
of fraud.
contested
expressly
ion
statutory procedure
states that
there was no
*14
applicable,
inquire
and that for this reason
court could
Pagosa
In
(Patterson
into it.
Springs
People),
People
v.
v.
App.
23 Colo.
479
618],
Pac.
election
special
a certain
[130
been
complaint
had
held and the result declared. The
al
leged conspiracy by
prevent
judges
quali
election to
of
illegal
fied
voting,
electors
other
from
acts. The
grant
general equity
it
relief
could
powers,
being
statutory
contesting
“there
provision
no
for
validity
option
of an election under the local
statute”.
Wright McKinney,
813],
These are the upon authorities relied to establish the superior extraordinary type court over this proceeding. In case brought against was the action in- illegal dividual electors to cancel registrations, or other- rights wise determine voters; the suits were ordi- narily against election officials, to make obey them the laws. In proceeded all the cases the court in accordance with statutory authority, except where there pro- was no statutory governing аt all vision situation, those cases the court acted under its equity power prevent inherent *15 wrong consummation of a which would go otherwise un- reasoning redressed. The group this latter of cases inapplicability demonstrates their to the situation before complete statutory us, procedure offering where dual reme- dies exists. that the lower not, by follows court did complaint, jurisdiction filing of obtain over the cause. being so, This the orders made and contemplated void, are binding rights any and are or conclusive as to the regardless defendants, of whether were served voluntarily appeared. summons aspect jurisdiction parties, The second is that over personal jurisdiction plain the court and it is had person Jurisdiction the defendants. over ob- over is process prescribed in the by by manner service tained voluntary appearance. (Cal. Proc., Code Civ. statute, or
777 367 416; Chaplin Superior Court, sec. 81 App. see Cal. v. justify its 954].) Pac. the lower court How does [253 present proceeding, assumed in in which persоnal process attempted 1 Counsel’s service of was not argument brought is determine the the action rem; civil status of certain in and was therefore defendants in rem, an action in constructive service reasonable are ordered the court is Numerous cases sufficient. cited, again point, proposition none either nor is correct. personal
Actions to determine
are
nature
status
being
proceedings
rem, the status
considered
“res”
within the territorial
of the state of domicile.
example
(See
The
proceedings
of divorce
is most common.
Haddock,
Sup.
525,
Haddock
201
50
v.
U. S. 562
Ct.
[26
160.)
L. Ed.
5
1];
Ann.
17
L.
But
Cas.
Cal.
Rev.
present
object
action has not as its
the determination
of a status. The
granted,
to vote
state
qualifications
prescribed,
of voters are
in our Constitu
tion,
II,
article
section 1.
voter,
if
status
we
that,
must call it
is established
Constitution,
and not
by legislative
legislature
prescribed
enactment. The
has
regulations by
certain
registration laws,
be
must
having
followed before the
qualifica
voter
the constitutional
can
registration
tions
exercise his franchise. But
is not an
element which
voter;
determines the status of a
he
voter,
qualified
though
particular
unable
vote in a
(Bergevin
improperly registered.
election because
Curtz,
Minges
312];
Cal. 86
Pac.
Trustees,
v. Board
[59
App.
816].)
present action,
Cal.
there
[148
fore,
status,
personal
is not to determine
but to cut off the
ground
of failure
conform
to vote on
statutory regulations governing
right.
the exercise of the
This
none
the characteristics of a
rem,
accepted
and it falls within the
definition of an action in
“to bar some
personam, for it seeks
individual claim”.
(Tyler
Judges
Registration,
Court
This conclusion was the basis of the decision in Ash v. Court, Superior App. 841], wherein person sought it was held that the whose necessary canceled is a party defendant action, *16 778
and must be brought by personal in service summons appears unless he mailing voluntarily; and that even the copy him of a why registra an order to show cause his tion not be should canceled over could not confer person. his (33 App. 804) : “We court deсlared Cal. may say here, New by as was Supreme Court of York in case, properly a similar may that if the statute give person judge prevent construed to a from voting striking register—as, his name from the regis existing law, the names of must be voters to an election— n specified tered for period prior of time adequate without procedure bring person such before court, provision revolutionary ‘then the sweeping of a is dangerous power character and extreme . . . Such a so exercise, construed would be unconstitutional to its deny suffrage granted by would Constitution entirely and would leave the . . . election (In judicial Ward, within the state officers.’ re Supp. 606.)” 20 N. Y.
But rem, even if the proposition action were in the second by counsel, may stated such court service, determine its own reasonable method constructive is entirely VI, They unsound. us article refer section Constitution, giving jurisdiction equity superior court; and 187 to section of Civil Pro Code cedure, providing where conferred statute, any or process Constitution suitable modе of adopted, pro the course “if ceeding specifically pointed be not this out code proviso destroys course, Of statute”. the force of only existing contention, section is available where provide procedure (McKen fail to process. statutes Co., Zinc Min. drick v. Western Cal.
865].)
be borne in
It should also
mind
the constitu
provision
referred to “does not confer
tional
above
designates
where
parties; merely
courts
rights on the
-may
equity
have in
rights
shall be
such
enforced
”
Barnett,
App. 138,
(Estate
.
. .
453].)
long
practically every
It
been settled
state
service,
law,
unknown at
that constructive
common
Union
only
wholly dependent upon
permissible
statute.
*17
only
valid
specified
statute, and can be
circumstances
express terms thereof.
compliance
in strict
with the
when
445
Co., 138 Cal.
[71
v. Warner Lock
(Columbia Screw Co.
50
20];
Pac.
Tracey,
Mention brought be made of the fact here our hearing that, attention at the application after the for the prohibition court, alternative writ of filed, was the lower on initiative, post its own- decided that cards should be mailed to the addresses of defendants, the various apprising supplemental them of the order, and made a order to this appears effect. also newspaper that several advertise- calling ments and news items pub- attention to the suit were lished, copies that five of thе order to show cause were county mailed to the chairman of the central committee of political party, copy each and that a of said order sent was public building to each school precincts where names posting. questioned, were What additional validity this fantastic method of give previous notification can beyond my illegal comprehension. service is void Inas- much- none of these of forms substituted service com- jurisdiction statutes, our can result from them plies principles already In particular, discussed. insufficiency of mailed in a notices to cancel Superior been determined Ash Court, v. supra. therefore,- for lack of are, void
The orders the court jurisdiction parties over defendant. remedy petitioners to the foregoing,
Prom the restrain sought, prohibition peremptory writ in this jurisdiction acting in of its lower court from excess proceedings judicial matter, arrest clear. writ lies other is no jurisdiction in all there cases where excess Proc., adequate (Cal. remedy. Code Civ. speedy and plain, Court, 213 Cal. 1103; Superior sec. v. Jardine Court, Superior Havemeyer 756, 291]; R. (2d) 79 A. L. 192, Rep. 121, St. 18 Am. Cal. how 537.) are, There Rev. ; see L. L. R. A. Cal. 627] (cid:127) briefly ex may be ever, objections raised counsel which amined. though it be hearing at that even suggested
It was
confer
did not
publication
summons
conceded that
defendants,
nevertheless
persons
over
granted for
reason
prohibition
should not be
writ
appear
appeared)
some have
(and
that some defendants
jurisdiction.
assumes,
before the court to submit to its
This
subject
course,
jurisdiction over the
there is at least
assumption,
suggestion
matter;
making
but
even
leading
Havemeyer
Superior
case
untenable.
In the
prohibition
Court, supra,
of'
wherein the
writ
never
discussed, the
that “it
exhaustively
opinion
states
having
law that a court
to issue the
was the
had
discretion
demanded
writ
to refuse it when
party
bringing
clearly
real
in interest
himself
within
a
(84
401.)
applic
filed
Petitioners
law”.
representative
character,
tion
behalf
themselves
*19
defendants;
petition
necessary alle
and
the
makes the
оther
(
gations
justify
representative
suit under section
(See
O’Brien,
Jellen v.
of Civil Procedure.
Code
ho
App.
1115].)
All of the defendants w
appeared
are, through
repres
not
in the court
have
below
petitioners, seeking
of these
to restrain
entation
the lower'
acting
jurisdiction
court from
a case where it has no
elementary
objection
them.
is
over
that waiver of
jurisdiction by
operate
one defendant does
of lafek
not
objection by
(Vian
a waiver of
other defendants.
Hillberg,
153].)
'The contrary would, indeed, view eliminate the writ prohibition entirely remedy prevent as a unlawful exer- person, cise of possible over the since is say case to because that the writ should not issue appear objection. Is it defendant and his con- waive cause, to show court, by ceivable that the lower its order days can hasten gave appear, less than ten illegal proceeding taking respect action with to some preclude securing pro- defendants the others rights by tection remedy of their constitutional only Havemeyer available? can The answer be found v. Su- “ perior Court, supra, page operation 390: . . the . of prohibition only writ is excluded in cases where the аction completed, nothing tribunal remains inferior pursuance to be done void If its order. its action completed ended, proceedings may further stayed, necessary, purpose affording it is if complete adequate relief, what has will been done undone. so, “If were not the inferior court, ” arbitrarily, remedy.
expeditiously could defeat the . . . further, page 392, says: And proceedings, precipitate “If such conducted such deprive injured haste, party can remedy of a to Which clearly entitled, must he then our law be lame and im- potent indeed. *20 “But, happily, there is no the claim that for foundation by precipitancy,
an court can mere haste and defeat inferior at appropriate remedy jurisdiction, least excesses for intercepted may in a case where be before it ’’ fully completed. made, fitting point hearing
The comes other at the re- amazing proceeding. to Counsel conclusion intend to spondent does not declare the lower court that right any any deprive pеrson of make order which shall not vote, but does add that it mean? order it. What does this intend to exercise appearing, any not defendant show cause states that failing right establish on or before October his great register, name from the shall have his stricken enjoined voting. prohibited from The amended shall supplemental order states that such defendants “by subsequent enjoined prohibited voting hereafter” On the record order to be made court. court, true, it is but there are orders of inconsistent adjudicate indicating intention to and determine each action. right vote of all defendants Now record, not do counsel off the that the court will what it would do in do and what it said complaint asks even counsel are of what the court its order. But not sure suggested One of it would be “a do. counsel will striking order” of the from the provisional name voter judges appears unless he before the of elec- election rolls frankly his to vote. Another de- tion and establishes judge do, he will does know what but clares gross”. Thus, “challenge in mind a he has thinks appeal a court of or review act as board would election superior court. I had decision of the conceived the lodged in a tribunal. of review as different think, point sufficient, I out that prohibition to correct excesses of a writ petitioners to hope. defeated counsel’s Accord- jurisdiction cannot be appear proceed- now, it would whole ing counsel subterfuge, frighten intended to and coerce ing is a below legal action, raising placing barrier of a voters, searching monumental burden of black them upon registra- upon attack to discover of defendants list contemplating judicial effective deter- but not ; tion If so, mination. it is an process court, abuse- of the and should he dismissed. prohibition writ of granted which this court has
does not bar, constitute present an effective either to the proceeding, or threatened, grant others and hence fails to petitioners full relief to which are entitled under the law of this state.
Rehearing denied.
Thompson, J., rehearing. voted for a F. In Bank. No. 15186. November
[S. 1934.] OF THE THE BOARD OF TRUSTEES LELAND STAN (a Body Having FORD JUNIOR UNIVERSITY Cor porate THE Powers), Petitioner, BOARD STATE EQUALIZATION Respondents. al., OF et