City of Oakland v. Hart

THE COURT. This is an original petition in this court for a writ of prohibition prohibiting and restraining the respondent from any further acting as judge in a certain action pending in the superior court of the county of Alameda, in which the Contra Costa Water Company is plaintiff and these petitioners are defendants. The facts necessary to be stated are these: The said action of the Contra Costa Water Company against these petitioners (the City of Oakland et al.) was brought to restrain the defendants therein from enforcing a certain ordinance fixing the rates to be charged for water furnished by the said Contra Costa Wafer Company to the city of Oakland. It was brought in the superior court of the county of Alameda, and assigned to Department Three of that court, of which the Hon. E. B. Ogden is presiding judge. When the pendency of this action was first called to the attention of Judge Ogden, in April, 1900, he suggested to counsel for the respective parties that he considered himself disqualified to try the case because he was a rate-payer for water furnished by said water company, and suggested that counsel agree upon some other judge to try the case. He suggested, also, that two of the other judges of Alameda county were also disqualified for the same reason; that Judge Green of said county was not disqualified, but he was too busy and crowded with other cases to try said case; but that if counsel consented the case might be transferred to Judge Green and he could select another judge. To this the attorney for the ■defendants (petitioners here) stated that he did not desire the matter to take that course, but did desire that Judge Ogden himself should select the judge; and that he (the attorney) did not desire to take the responsibility of agreeing upon another judge, but would consent to whatever judge might be named by Judge Ogden. The matter was mentioned several times with the same result; and on May 7, 1900, Judge Ogden, with the knowledge and consent of the attorney for the defendant therein, as well as with the consent of the attorney for the *100 plaintiff, wrote the following telegram to he sent to the respondent herein: “May 7, 1900. “To Judge E. -C. Hart, Sacramento, Cal.: “All counsel in case of Contra Costa C. W. Co. v. City of 0., as well as judges of this county, unite in request that you sit in said cause. Judge here is disqualified. If you accept, can you he here Wednesday morning to hear demurrer? “F. B. .OGDEN.” This telegram was sent to the other three judges of the superior court of Alameda county and was signed hy Judge Green and Judge Ellsworth, the other judge not being found. It was returned to Judge Ogden and a pencil mark was made across the names of the other two judges, Judge Ogden thinking that the dispatch ought to be sent in his name alone. This telegram was delivered to the attorney of the defendant and one of the attorneys of plaintiff in said case, and was by them taken to the telegraph office and forwarded to the respondent at Sacramento. This selection of the respondent, Judge Hart, was consented to by the attorney of the defendants; this fact appears not only upon the face of the telegram itself, which was delivered to the attorney for the defendants and by him and the other attorney forwarded, but also by the testimony in the case, which was submitted by consent on the hearing of this application. It was thought best to get a judge from Sacramento because, as Sacramento had its own waterworks, there were no questions in that county about fixing rates. The respondent Hart immediately telegraphed to Judge Ogden that he would accept the appointment and would be in Oakland on the next Wednesday morning, and was there at that time. Judge Ogden accompanied the respondent to the bench of the court and introduced him to the attorneys as Judge E. C. Hart, who had been selected to try the case. No objection whatever was made by the attorney for the defendants therein to-Judge Hart sitting in the case; and Judge Ogden caused the clerk of the court to enter the following order: “The demurrer and the motion herein coming on regularly this day for hearing, whereupon Hon. E. C. Hart, judge of the superior court of' Sacramento, was requested by counsel for the plaintiff and de *101 fendant herein to act in the above-entitled cause, three of the judges of the court being disqualified, and Judge Hart having consented thereto, it is ordered that the matters herein be and the same are hereby continued to Wednesday, May 19, 1900.” A demurrer-to the complaint, having been interposed, was argued before Judge Hart, who took the same under advisement and afterward made an order overruling the same, and giving the defendants certain time to answer. Other matters were submitted and considered, without any objection to the respondent acting, before additional counsel was retained by the defendants therein; afterward additional counsel was employed by defendants, and “thereafter all of said attorneys and counsel for the defendants in said cause took part in several interlocutory applications in the same before the Hon. E. C. Hart without any objection.” Thereafter a motion was made by defendants to compel the plaintiff to submit certain books to inspection, and this motion was submitted to Judge Hart, who afterward denied the same, but on application of defendants added to the order that it was made without prejudice to a renewal of the motion. This occurred about the 11th of June, 1900, down to which time no objection whatever had been made to Judge Hart sitting in the case; but on June 12, 1900, for the first time, counsel for defendants in said cause objected to the further action of respondent as judge in the cause, and to his hearing or determining any matter or proceeding therein; and after testimony and argument the objection was overruled by respondent. Thereafter this present proceeding for a prohibition was instituted in this court. The position of the petitioners here is that Judge Ogden was disqualified from trying the case because he was a water ratepayer; that for the same reason he had no jurisdiction to request another judge to sit; and that his act in requesting the respondent to sit as judge of the superior court of Alameda county was without jurisdiction, and that the consent of the parties could not give it validity. As both sides assume that Judge Ogdem was disqualified to try the case because he was a rate-payer, we will assume that proposition to be true for the purposes of this case, although we are not to be understood as definitely determining that question. Neither are we at all inclined to hold *102 that Judge Ogden, even if disqualified to try the case, could not have legally called in the respondent to hear and determine-the case in question without any request or consent of the parties, for the constitution provides, without any qualification, that “a judge of any superior court may hold a superior court in any county at the request of the judge of the superior court thereof”; but it is not necessary to consider that proposition, because here the respondent was called to try the case with the consent, and practically at the request of the petitioners. This is not a case to which the rule applies that consent cannot give jurisdiction. It is, for instance, not a case like Bates v. Gage, 40 Cal. 183, where it was sought by stipulation to give the district court jurisdiction to sit in a certain county at a time when it had no jurisdiction to sit there, and where it was said that consent of parties could not confer jurisdiction upon a court “when, in the nature of things, it could acquire no jurisdiction —they could not by their stipulation make a court.” In the case at bar, the superior court of Alameda county had full jurisdiction of the subject matter of the action and of the parties, and the respondent was a duly elected and acting superior judge, qualified officially to preside in that court. There was no disqualification attaching to him personally, and therefore the question whether consent can confer jurisdiction upon a personally disqualified judge does not arise. Therefore, the petitioners, having requested Judge Ogden to select a judge, and having approved the selection which he made, and carried his request to the respondent, and having proceeded with the hearing of the case before the respondent without objection until important matters had been disposed of, cannot now be heard to repudiate their own act. We have been referred to no case where it has been held that a party, having consented to the calling in of a qualified judge to preside over a court having competent jurisdiction of the case, can in the midst of the hearing of the action stop further proceedings upon any such suggestion of the irregularity or invalidity of the manner in which he was called in as is made in the case at bar. The case of Lillie v. Trentman, 130 Ind. 16, is very similar to the case at bar. There the regular judge, being disqualified in a certain case, had called in another judge to try it, and one of the parties having made *103 no objection until certain matters in the case had been determined, then objected to his finally disposing of the case. The court having intimated that it might presume that the order calling in the special judge was legally made, but that it did not care to put its decision on that ground, said: “What we do decide is that when a judge has been called or an attorney has been appointed to try a cause, as provided in section 415 of the Bevised Statutes of 1881, and no objection is made to his appointment at the time, or to his sitting in the cause at the time he assumes jurisdiction, all abjections to the regularity of such appointment shall be deemed waived. A practice that would permit a party litigant to proceed for months before a de facto judge, to make issues, and obtain rulings upon legal questions involved in the controversy, and then, if not satisfied with some of his rulings, or not disposed to go into trial when the cause is ready for trial, would be able, in a moment, to arrest proceedings and oust the jurisdiction of the judge, cannot be tolerated.” In Field v. Mark, 125 Mo. 502, where the regular judge of the court was disqualified on the ground of interest, and had appointed another judge to try the cause, with the consent of parties, the court said: “He could have called in another judge without consulting the other side; but when, as the record shows, he consulted their wishes, and they agreed with him upon Judge Sloan, the point is without merit either in ethics or law.” Our conclusion is, that the petition for a peremptory writ should be denied. The foregoing views make it unnecessary to consider the question whether or not Judge Green, who was free from all color of disqualification, did also request the respondent to act as judge of the superior court of Alameda county in the case in question. We see nothing in the point attempted to be made that when Judge Ogden sent the dispatch to the respondent he thought that the latter was the person who had formerly been attorney general of the state. He intended to request the person who was superior judge of the county of Sacramento; and, when the latter appeared at Oakland to take his seat as judge in the superior court there, the events which then took place constituted of themselves a request that the respondent act as *104 judge—all of which was with the additional knowledge and consent of counsel for petitioners. Respondent had no intimation that he was objectionable to either party until June 12th. If petitioners, instead of consenting that respondent be called in, and really requesting it to be done, had objected to him before any proceedings were had in the case, he would have been free to refuse to act if he had preferred to take that course; but in the present condition of the case it would, no doubt, be somewhat embarrassing for him to retire without consent of both parties. The prayer of the petitioners is denied, and the proceeding is dismissed.