F.E. Booth Co., Inc. v. Zellerbach , 102 Cal. App. 686 ( 1929 )

THE COURT.

Petitioners herein prayed for an alternative writ of prohibition, directed to I. Zellerbach, George B. Clarkson and Reginald G. Fernald, as and constituting the Fish and Game Commission of the state of California, and all persons acting by and through said respondents herein, directing and commanding the said respondents and each of them, their officers and agents to desist and refrain from issuing to Globe Grain and Milling Company any permit to take and use fish by a reduction or extraction process for the manufacture of edible products, and to show cause before the above-entitled court why the said I. Zellerbach, George B. Clarkson and Reginald G. Fernald, their officers and agents, should not be absolutely and forever restrained from taking any further or other proceedings toward granting such permit to Globe Grain and Milling Company to take and use fish by a reduction or extraction process for the manufacture of edible products, and for such other and further relief as petitioners may be entitled to.

Respondents have appeared and demurred and answered to the petition. [1] They claim that the granting of the permit to said Globe Grain and Milling Company, or to any other person, is not a judicial function, being purely an administrative or executive act to which the writ of prohibition will not run, and is in no way reviewable in this proceeding. [2] Respondents also contend that the permit authorizing them to act had been granted prior to the issuance of the alternative writ and for which further reason the writ will not lie.

We are of the opinion that respondents are correct in their contentions. (Globe Cotton Oil Mills v. Zellerbach, etc.,200 Cal. 276 [152 P. 1038]; Code Civ. Proc., sec. 1102; 21 Cal. Jur. 591.)

The petition is denied and restraining order discharged.