People ex rel. Gesford v. Superior Court

McFarland, J. 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 [470] five thousand dollars. Higgins demurred to the complaint. His demurrer was sustained as to the first count, without leave to amend; and the demurrer was sustained as to the second count, with leave to amend; the demurrer to the second count apparently being sustained upon the ground that the averment that Higgins had received said pass was made upon information and belief, whereas it should have been made positively. The plaintiffs afterward amended the second count by inserting a positive averment of the receipt of said pass. Thereupon the defendant in said case, Higgins, orally pleaded that he was not guilty of the offense charged, which plea was entered upon the minutes of the court. Notwithstanding said plea the plaintiffs in said case procured the clerk to enter a default of the defendant, and thereafter the plaintiffs in said action, petitioners here, applied to the respondents, the said court and the judge thereof, for a judgment in accordance with the prayer of their complaint, and the court refused to enter said judgment or any judgment. Thereupon they filed the present petition in this court asking that said respondents be “commanded, upon said default and the papers and pleading in this cause, to enter a judgment in favor of these petitioners, as plaintiffs in said action, for the relief demanded in the complaint.” 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 [471] one here under review, to a severe criminal punishment. It is, at least, doubtful if he could be compelled to give evidence against himself. (See Thurston v. Clark, 107 Cal. 285, and cases there cited.) But whether or not his said plea of not guilty was a proper and sufficient plea is a question not here before us. That question was passed upon judicially by the court; and if it committed an error in deciding that question, such error-cannot be reviewed on mandamus. The case is quite-similar in principle to that of People v. Pratt, 28 Cal. 166; 87 Am. Dec. 110. In the latter case the plaintiffs, moved the trial court to enter a judgment dismissing1 the action at their costs, and the defendant opposed the motion upon the ground that he had a counterclaim. The court denied the motion; and plaintiffs applied to-this court for a mandate commanding the lpwer court to enter such judgment. They contended that the alleged counterclaim could not be legally made in the-action, and that it had been withdrawn by a certain stipulation. This court in denying the writ said: “Both of these propositions were denied by the defendant, and in deciding them the court acted judicially, not ministerially; and, having decided them according to> the best of his ability, a mandamus does not lie to compel him to reverse his decision and render a different one. (Citing authorities.) This writ lies to compel a subordinate judicial tribunal to proceed and exercise its-functions when it has neglected or refused to do so; but when the act to be done is judicial, or discretionary, the writ cannot direct what decision or judgment shall be rendered, nor can it be granted after the inferior tribunal has acted, for the purpose of reviewing its decision.....To review errors is not the office of the-writ of mandamus.” This language merely states a principle well established, and frequently declared by this court. Many of the authorities on the subject are cited in the opinion of the court in Strong v. Grant, 99 Cal. 100, which was a petition for a writ of mandamus-commanding the superior court to dismiss a certain [472] criminal action pending therein. The writ was denied, and this court said: “ The rule is so well established that it may be said to be universal, that the writ of mandamus cannot be used to correct the errors of a court in passing upon questions regularly submitted to it in the -course of a judicial proceeding, or to control the exercise of its discretion.” The rule there stated applies to •the case at bar as clearly as to any of the numerous cases to which it has been applied by this court. By their motion for judgment the petitioners invoked a .judicial decision, and such decision cannot be reviewed •on mandamus. This is clearly not a case where, upon ■an undisputed default, the law specially enjoins upon •the clerk—or the court—the ministerial duty of entering a certain specifically defined judgment. All the •questions here involved are disputed questions calling for the exercise of a judicial discretion. What kind of a judgment should, or could, this court, by writ of mandate, command the respondents to enter ? 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. [473] Under the above views it is unnecessary to inquire what similarity there is between the proceeding of People v. Higgins and the old writ of quo warranto. The prayer of the petition is denied, and the writ dismissed. Van Fleet, J., and Garoutte, J., concurred.