Pickens v. Johnson , 42 Cal. 2d 399 ( 1954 )

SHENK, J.

This is an appeal from judgments in favor of the Johnsons, husband and wife, for $4,500 and $15,400, respectively, in actions consolidated for trial and on appeal.

The Pickens, husband and wife, commenced an action in Sacramento County, for declaratory relief involving their rights under a lease from the Pickens to the Johnsons of premises owned by the Pickens. Their rights under a eon-tract of conditional sale of the business and equipment on the premises leased by the Pickens from the Johnsons were also involved. The Johnsons brought an action in the same court against the Pickens for damages for the forcible entry and unlawful detainer of the premises. The actions were consolidated for trial and tried without a jury.

Before approaching the merits of the appeal a preliminary constitutional question raised by the Pickens must be disposed of.

The cases were tried before the Honorable J. 0. Moncur who was elected in 1944 as judge of the Superior Court of Plumas County for the full term of six years. He discharged the duties of that office until the lást day of his term (Jan. 8, 1951) when he retired pursuant to the provisions of the Judges’ Retirement Act (Stats. 1937, p. 2204). At the time this consolidated action was tried Judge Moncur was sitting in the Superior Court of Sacramento County pursuant to an assignment to that task by the chairman of the Judicial Council as provided in section 6 of the act as amended in 1951. (Stats. 1951, p. 3694.) At the time of the assignment that section provided, and still provides, in its pertinent parts as follows:

“Sec. 6. Justices and judges retired under the provisions of this act, so long as they are entitled by its provisions to receive a retirement allowance, shall be judicial officers of the State, but shall not exercise any of the powers of a justice or judge except while under assignment to a court as hereinafter provided. Any such retired justice or judge may, with his own consent, be assigned by the Chairman of the Judicial Council in a court of like jurisdiction as, or higher jurisdiction than, that court from which he has retired; and while so assigned shall have all the powers of a justice or judge thereof. If assigned to sit in a court, he shall be paid while sitting therein in addition to his retirement allowances the difference, if any, between his retirement allowance and the compensation of a judge of the court to which he is assigned.”

It is the contention of the Pickens that the foregoing section of the Judges’ Retirement Act is unconstitutional and that any judgment rendered by Judge Moncur while under assignment is void.

As authority for the adoption of the Judges’ Retirement Act and particularly section 6 as amended in 1951, reliance is placed on section 22a of article IV of the Constitution adopted in 1930. The pertinent parts of that section are as follows: “The Legislature shall have power to provide for the payment of retirement salaries to employees of the State who shall qualify therefor by service in the work of the State as provided by law. The Legislature shall have power to fix and from time to time change the requirements and conditions for retirement which shall include a minimum period of service, a minimum attained age and minimum contribution of funds by such employees and such other conditions as the Legislature may prescribe. ...”

Under the authority of the foregoing constitutional section the Legislature in 1931 enacted the statute establishing a system for the retirement of the employees of the state (Stats. 1931, p. 1442) and it has been in continuous operation since that time.

In 1948 the question was presented to this court whether section 22a of article IV of the Constitution conferred upon the Legislature the power to provide a retirement system for its own members. It was held in the case of Knight v. Board of Administration of State Emp. R. System, 32 Cal.2d 400 [186 P.2d 547, 5 A.L.R.2d 410], that section 22a was an enabling act; that the term “employees” included officers of the state; that members of the Legislature were officers of the state, and that under the section the Legislature was authorized to establish a retirement system for its members as provided for in the Legislators’ Retirement Law of 1947. (Gov. Code, § 9350 et seq.; Stats. 1947, p. 2058.) The validity of that statute was upheld by unanimous decision of this court.

There can be no doubt that section 22a as construed in the Knight case was and is an enabling provision of the Constitution authorizing the Legislature to provide a system for the retirement of the members of the judicial department of the state embraced within the Judges’ Retirement Law. In fact, there is here no contention to the contrary. That act, as stated, was adopted in 1937. Section 6 was then in its present form with the exception of a provision added by amendment in 1951. The section was first amended in 1941 (Stats. 1941, p. 2938) to provide that there must be a stipulation in the case by all counsel that the retired judge could act. In 1951 the section was again amended by unanimous vote of both houses of the Legislature. (Assembly Daily Journal, May 18, 1951, p. 4501; Senate Daily Journal, June 16, 1951, p. 3462.) By that amendment the requirement of a stipulation of counsel was eliminated and a provision added for compensation to the retired judge while under assignment based on the difference between his retirement allowance and the compensation of' a judge of the court to which he' is assigned. (Stats. 1951, p. 3694.)

For a period of 15 years and over, and until the judgment in this case in August, 1952, the system of assignment of retired judges to try cases in the superior court has been in operation without objection.

Thus, at all times since the enactment of the Judges’ Retirement Act in 1937 section 6 thereof has contained the provision that a retired judge should be a judicial officer of the state and also the provision granting to the Legislature power “from time to time” to “change the requirements and conditions for retirement.” This the Legislature has done in the two instances mentioned and the question is whether the conditions in the original enactment and those subsequently incorporated in it were within the power of the Legislature to enact. If it be concluded that they bear a reasonable relation to a system of retirement of judges and do not offend any provision of the Constitution they should be upheld. It is our conclusion that they are valid from both standpoints.

This type of legislation, both constitutional and statutory, is not new in this state. The Public Utilities Commission has been established under a constitutional enabling act with full power conferred on the Legislature to enact legislation even contrary to any other provisions of the Constitution, provided it be cognate and germane to the regulation and control of public utilities. (Const., art. XII, § 22; Pacific Tel. & Tel. Co. v. Eshleman, 166 Cal. 640 [137 P. 1119, Ann Cas. 19150 822, 50 L.R.A.N.S. 652].) Likewise the Industrial Accident Commission has been set up under an enabling act whereby the Legislature is expressly vested with plenary power “unlimited by any provision of this Constitution, to create, and enforce a complete system of workmen’s compensation. ...” (Const., art. XX, § 21; Western Metal Supply Co. v. Pillsbury, 172 Cal. 407 [156 P. 491, Ann.Cas. 1917E 390].)

Under the foregoing enabling acts the Legislature has enacted laws which, as interpreted by the courts, are controlling, as to the subjects properly legislated upon, over other general provisions of the Constitution and general laws.

So here the Constitution has in general terms conferred upon the Legislature the power to establish a system for the retirement of judges. The Legislature has done so and has imposed as a condition of retirement that retired judges, so long as they receive retirement allowances, shall continue to be judicial officers of the state and with their permission shall be subject to call for judicial service by assignment for that purpose by the chairman of the Judicial Council.

It would seem to be beyond question that the provision for the assignment and service of a retired judge in accordance with the statute bears a reasonable relationship to a system of judges’ retirement. It is inherently connected with the problems of the administration of justice under which the state, in consideration for the retirement allowance, may invoke the assistance of the retired personnel of the judicial department in emergencies found to exist by the chairman of the Judicial Council. Nothing foreign to that purpose could have been in contemplation by the Legislature.

It is recognized that the constitutional grant of power to the Legislature to establish the two commissions above referred to is much more comprehensive than that contained in section 22a of article IV, and it is taken for granted that any legislation adopted under the authority of that section must not be inconsistent with other provisions of the Constitution.

There is no provision of the Constitution which would prohibit the Legislature from providing, as it has in section 6, that so long as he receives a retirement allowance a retired judge shall be a judicial officer of the state. Section 1 of article VI which provides that the judicial power of the state shall be vested in the senate, sitting as a court of impeachment, and in the several courts, including the superior court, deals with the question of the official entities in which the judicial power of the state shall be vested and not with the personnel of those institutions. And it must be assumed that an assigned retired superior court judge is possessed of all of the qualifications otherwise acquired for service on that court, including the requirement of section 23 of article VI of the Constitution that he shall have been admitted to practice in this state for at least five years before becoming a superior court judge.

With that assumption it is observed that here we are dealing with the status of a superior court judge who has retired pursuant to the provisions of the statute. In order to retire he must, while in office, file his notice of retirement with the Secretary of State as provided by section 1 of the act. (Stats. 1937, p. 2204.) While in retirement he has the privilege of maintaining his membership in the State Bar of California. As such he is entitled to all of the privileges and immunities and is subject to the duties and obligations of an attorney at law so long as he maintains his membership in the State Bar organization. His term of office as a judge has expired, or been terminated prior thereto by his voluntary act, and the office is vacant. He may go and come in all respects as any attorney and counselor at law but he has no power as a judicial officer until the happening of a contingency, namely, his assignment and voluntary acceptance thereof as a judge of the superior court in and for a designated county by the chairman of the Judicial Council. That assignment does not prolong his term of office. It merely has the effect of vesting in him the powers of a judge of the superior court during the period specified in the assignment, as is ordinarily done in the case of an assignment by the chairman of the Judicial Council of an incumbent superior court judge from one county to another under the authority of section la of article VI of the Constitution. It must be taken for granted that under the proper exercise of the power of assignment a retired judge will not be continued in service indefinitely. The term of assignment is necessarily within the wise discretion of the chairman of the Judicial Council. Upon the expiration of the period of his assignment the judge resumes his prior status as a retired judge. If he desires to exercise the privileges of an attorney during his retirement and while unassigned, he would, of course, be subject to the provisions of the State Bar Act, including the requirement of the payment of dues.

It is also observed that section 6 of the Judges’ Retirement Act does not offend any provision of the Constitution on the ground that an assignment thereunder is an unlawful increase in the number of judges of the county to which the retired judge is assigned. The Constitution does not limit the number of superior court judges in any county. The Legislature has full control of the number (two-thirds in both houses voting in favor thereof, § 9, art. VI) and section 6 of the retirement act is legislative authority for additional sessions of court for the particular county to which the assignment is made (§§ 6 and 9, art. VI).

Again, the increase in compensation provided for in section 6 of the act to be paid to retired judges while under assignment is not inconsistent with any provision of the Constitution. The compensation to be paid to superior court judges is for the Legislature to determine under section 17 of article VI of the Constitution.

Section 8 of article VI, providing that the term of office of a superior court judge shall be six years, and cases such as Martello v. Superior Court, 202 Cal. 400 [261 P. 476], holding that a judicial officer may not perform a valid judicial act after his term has expired, do not set at nought the obvious purpose of the assignment provisions of the Judges’ Eetirement Act. In no proper sense is the term of a judge extended by his retirement or by his assignment. Upon his retirement he can no longer of his own volition assume to act as a judge whether he retires at the end of his term, as in this case, or in his midterm. It is only upon his assignment in accordance with a statute as authorized by the Constitution that he has any judicial power whatsoever, and since it is correct to say that the assignment has a reasonable relationship to the system of retirement with no rights in the retired judge to act except under the assignment, there has been no unlawful extension of his term of office.

' The fact that under section 6 of the act the retired judge while receiving retirement allowance is declared to be a judicial officer of the state (but without any power as such except while under assignment) should be considered as nothing more than malting him eligible for assignment. It would be unreasonable to conclude that while not under assignment he would be subject to the conditions that attach to the status and activities of an incumbent judge. When assigned he voluntarily assumes the status of a regular judge and would necessarily be governed by those conditions. For example, when under assignment he could not practice law (Const., art. VI, §18), and could not be absent from the state longer than 60 days (Const., art. VI, §9). Others could be noted. While not under assignment there is no good reason to say that he would be subject to the provisions of the Constitution and law of the state made specially applicable to regular incumbent judges.

As hereinbefore indicated there was no provision in the original Judges’ Eetirement Act of 1937 requiring a stipulation of counsel that the assigned retired judge might act. (Stats. 1937, p. 2206.) In 1941 section 6 of the act was amended to provide that, “Any such retired justice or judge may, with his own consent, and upon the stipulation of all the counsel in the case or cases to which he is assigned to sit, be assigned by the chairman of the Judicial Council to sit in any court; and while so assigned shall have all the powers of a justice or judge thereof.” (Stats. 1941, p. 2938.) In 1951 this section was again amended by eliminating the requirement of a stipulation of counsel before the order of assignment could be made. (Stats. 1951, p. 3694.)

It is again emphasized that we are here dealing with the assignment of a retired judge of the superior court to sit in a superior court. Such being the case it is urged that, notwithstanding the amendment of section 6 in 1951, dispensing with the requirement of a stipulation of counsel, nevertheless such a stipulation as to the assignment of a superior court judge is required under the provisions of section 5 of article VI of the Constitution as amended in 1928. The amendment added in that year is as follows: “Upon stipulation of the parties litigant or their attorneys of record a cause in the superior court or in a municipal court may be tried by a judge pro tempore who must be a member of the bar sworn to try the cause, and who shall be empowered to act in such capacity in the cause tried before him until the final determination thereof. The selection of such judge pro tempore shall be subject to the approval and order of the court in which said cause is pending and shall also be subject to such regulations and orders as may be prescribed by the Judicial Council.”

It is argued that since section 22 of article I of the Constitution provides that: “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise,” there is no power in the Legislature to provide for the assignment of a retired superior court judge to act as a judge of such a court except by stipulation of counsel, accompanied by an order of the superior court approving the selection.

A sufficient answer to this argument is that the Constitution and the statute do not encompass the same subject matter and that there is no conflict between them. Section 5 of article VI of the Constitution, by its own terms, has to do only with the establishment of a court through the medium of a pro tempore judge, selected from the membership of the bar by stipulation of counsel to try a particular case, and whose selection must be approved by the superior court. The chairman of the Judicial Council has nothing to do with setting up such a court. On the other hand section 6 of the Judges’ Retirement Act operates to establish a court through the medium of a judicial officer of the state and his assignment thereto by the chairman of the Judicial Council. Where duly assigned under that section such officer obviously is not a judge pro tempore selected by stipulation of counsel to try a particular case as contemplated by section 5 of article VI of the Constitution. The latter section operates independently of the retirement act. Neither controls the other. When a retired judge is duly assigned under the retirement act he is a regular judge of the superior court whose status as such is created by the Legislature pursuant to constitutional authority. Section 5 of article VI is therefore not controlling. It necessarily follows that under the retirement statute no stipulation of counsel is required as a prerequisite to the assignment of a retired superior court judge to preside as a judge of the superior court in any county in the state.

It may not be assumed that the power of assignment conferred by section 6 of the statute will be improvidently exercised. If perchance it should be the Legislature has complete authority to deal with the subject by appropriate legislation even to the extent of withdrawing the power altogether.

• By section la of article VI (subd. 6) of the Constitution the duty is enjoined upon the chairman of the Judicial Council to seek to expedite the judicial business of the state, to equalize the work of the judges, and to provide for the assignment of incumbent judges from one county to another under certain conditions. None of the conditions specified in that section would prohibit the assignment here under consideration.

Whether as a matter of policy the system of assignment of retired judges • should be put into effect is for the people of the state to determine through the Constitution or by the Legislature. That policy has been declared by both, by the Constitution by reasonable implication and by the Legislature in the unmistakable and definite terms of section 6 of the retirement act. The public policy so reflected is of considerable public concern. It is not a matter which is subject to judicial control where it has been plainly declared by legislative authority. A plan for the continued service ■ of federal judges has been in effect for many years. (28 U.S.C.A. § 294 [formerly § 375a]; Booth v. United States, 291 U.S. 339 [54 S.Ct. 379, 78 L.Ed. 836] ; United States v. Moore, 101 F.2d 56, cert.den., 306 U.S. 664 [59 S.Ct. 788, 83 L.Ed. 1060].) The purpose of such a plan would seem to be to make available to the judicial department the experience, aptitude and capabilities of retired judges who, with their consent, may be called upon for assistance in the administration of justice. Such a plan is highly desirable not only in particular cases but also when congestion in judicial business in a particular locality has become critical, and oftentimes intolerable.

The chairman of the Judicial Council is the logical constitutional officer in whom to vest the power of assignment. It is one of his functions to marshal the judicial manpower of the state by assignment and transfer of judges to facilitate the dispatch of judicial business. No other person is in better or as good a position as he to determine the desirability and need for such assistance.

From the foregoing it is concluded that while the trial judge in these cases was acting under the assignment he was acting as a judge de jure. There is no question but that if he were not, the status of a judge de facto attached to his action. The office to which he was assigned was a de jure office. By acting under regular assignment under a statute authorizing it he was acting under color of authority as provided by law. His conduct in trying the eases and rendering judgment therein cannot here be questioned. (People v. Kempley, 205 Cal. 441 [271 P. 478], and cases there cited.) But the fact that those judgments may not be attacked for disqualification of the trial judge because he acted at least as a judge de facto is not enough. The question whether he acted as a de jure judge is essential to the proper disposition of this case especially for the proper functioning of the retirement system and the regularity of the action of assigned judges thereunder.

Since it is determined that the judgments herein may not be assailed on the ground that the trial judge was without power to act under the assignment, we turn to the merits of the appeal. From the record it appears that the Pickens were the owners of a business (including an on-sale liquor license) and equipment and the property on which it was located. In 1948, the parties made a conditional contract of sale in which the Pickens were the sellers of the business and personal property used therewith for the sum of $10,000 to be paid in stated installments, and of which $5,000 was paid. At the same time, the Pickens leased by written lease the real property on which the business was located for a five-year term commencing January 5, 1948, at a monthly rental of $225, the first and last month of which were paid in advance. The Johnsons took possession of the property under the agreements and they retained possession until September 20, 1949.

In the course of operating the business, the Johnsons incurred obligations to third persons for which an action was commenced against them in the municipal court. An attachment was issued in that action against “goods, wares and merchandise” of the Johnsons located on the leased property. On September 14, 1949, the marshal levied the attachment on such “goods, wares and merchandise” by posting notice on the premises where located and padlocking the doors of the building. Hunter, an employee of the Johnsons, was then in charge of the business. He operated the bar at the business on September 15th under the marshal’s direction. He left the premises on September 19th and when he returned on the 20th, the marshal’s padlocks had been replaced by other padlocks, and the Pickens were in possession, having entered on that day, removing the marshal’s padlocks. At that time, all sums payable under the lease and agreement had been paid by the Johnsons according to the instruments. The rent had been paid to and including October 10, 1949, and on that date the Johnsons’ tender of the rent for the ensuing month was refused by the Pickens. Other factors show that the Pickens asserted and held possession of the premises to the exclusion of the Johnsons.

In the first of the two consolidated actions, the Pickens’, plaintiffs’, basic claims were that the Johnsons had violated the lease by suffering the attachment to be levied and incurring the obligations on which the attachment was based in their name and on their credit; that hence the lease was breached and it and the agreement were no longer in effect and they were entitled to regain possession of the premises and business. In the second action, the Johnsons, plaintiffs, claimed damages from the Pickens for ousting and excluding them from possession of the premises and business, asserting no breach of the lease or agreement and resting their claim on those instruments.

The court found that there had been no breach of the lease or agreement; that the merchandise was not bought in the Pickens’ name or on their credit; that the levy of the attachment did not breach the lease; that the Pickens ousted and excluded the Johnsons from possession without right; that the Johnsons had not abandoned the premises or their rights under the lease; and that the Pickens were liable in damages to the Johnsons for their conduct.

The actions were previously tried resulting in a judgment for the Pickens, and the Johnsons were ordered to transfer the liquor license to the Pickens. That was done and in the second trial $4,500 of the damages awarded to the John-sons was the found value of the liquor license. An appeal was taken from the judgment after the first trial, the main grounds being insufficiency of the evidence to support it. The judgment was reversed on that ground and several matters were determined. (Pickens v. Johnson, 107 Cal.App.2d 778 [238 P.2d 40].) The Pickens based their claim of a violation of the lease on a clause in which the Johnsons, lessees, agreed not to permit any liens to be filed, against the premises, asserting the levy of the attachment as a violation, and further invoked a clause of the lease which gave them right of reentry for breach. The District Court of Appeal held that there was no breach because the attachment was of merchandise, rather than of premises. It was also determined that under the evidence the Johnsons' did not incur the obligations upon which the attachment was based in the Pickens’ name or credit and the Johnsons had not abandoned the premises, their lease, or the agreement.

The Pickens assert on this appeal that they were justified in seizing possession of the premises and taking the liquor license from the wall on the premises, or otherwise phrased, the findings of the court to the contrary, are not supported by the evidence. They assert that the Johnsons abandoned the premises and that an improper measure of damages was applied.

We have heretofore seen that it was settled by the former appeal (Pickens v. Johnson, supra, 107 Cal.App.2d 778) that there was no breach of the lease by reason of the levy of the attachment and hence the Pickens had no right to reenter or retain possession of the premises and merchandise on that ground.

The Pickens concede that there is a conflict in the evidence on the question of abandonment of the lease and agreement by the Johnsons and the court in its findings resolved that conflict against them. Thus there is no occasion to discuss the evidence on the subject.

For the first time the Pickens now contend that the business and the premises were a part of a joint enterprise between them and the Johnsons and therefore they had the right to enter and retain possession of the premises and merchandise. They point to evidence that the liquor license was issued in the Johnsons’ and their names jointly and that they were parties defendant in the municipal court action and judgment was then given against them as well as the Johnsons. No such proposition was asserted in any of the pleadings or at any other time. Moreover, the lease and agreement squarely refute it. They created a landlord-tenant relation with reference to the premises and the liquor license was one of the things .sold by the agreement to the Johnsons. At no time prior to their entry into possession in September did they make any such claim.

The Pickens contend they had a right to enter to obtain the liquor license in order to turn it over to the Board of Equalization as the law required- them to do to protect their interest because the failure to operate the business would forfeit the license and that is the reason they entered. Assuming such was the case it would not authorize them to forcibly seize possession of the premises and merchandise and retain them to the exclusion of the Johnsons. There is evidence which negatives that as the purpose of their entry. While there is some conflict, the evidence shows that the Pickens broke the padlocks which had been placed on the door by the marshal and put their own locks on. The Pickens thereupon took possession of the premises. They removed some merchandise therefrom and took down decorations and renovated it. After the attachment was levied on September 14, 1949, the premises were open with a keeper in charge for two days and then padlocked. The Pickens told the Johnsons’ bartender who was residing at the premises to remove his personal articles. The Johnsons had made arrangements with a Mrs. Sprouse to borrow the money to discharge the attachment but when she found out the Pickens were in possession she refused to advance it. Mrs. Johnson tendered the rent due under the lease on October 10, 1949, to the Pickens and demanded possession of the premises; both were refused. Similar tenders and demands were made on November 10th. Also, the Pickens refused to permit the Johnsons to remove their personal belongings. The Pickens posted a notice dated September 14, 1949, on the premises declaring that because of the attachment the Johnsons had broken the lease and agreement (which as we have seen was not true) and unless the attachment was released in three days the Johnsons would lose all rights under the lease and agreement. Finally, the Pickens commenced their action on October 28, 1949, in which they declared that the lease and agreement were broken and they took possession of the property on September 20, 1949, and requested the court to declare that the Johnsons had no right to the property. There is, therefore, sufficient evidence to show an ouster by the Pickens of the Johnsons from the premises, an exclusion of the Johnsons from possession and a forcible entry by the Pickens, all contrary to the Johnsons’ rights under the lease and agreement.

The damages of $19,900 awarded the Johnsons consisted of $4,500 for the liquor license and $15,400 for the loss of possession of the premises in violation of the lease. It was found that the value of the use of the premises which is the rental value from September 20, 1949, to January 5, 1953, the end of the lease term, was $400 per month. Evidently the court concluded that this ran from October 21, 1949. The rental under the lease was $225 per month but no claim is made that such amount should be deducted from the $400 use value. The Pickens assert that the only evidence of the use value was based on the assumption that the liquor license would be used on the premises and that to permit recovery of such a use value and also the value of the liquor license is to allow two amounts of damages for the same thing.

There is evidence that the net income from the business was over $7,000 for the 12-month period prior to the unlawful entry and there was evidence that the liquor license alone was worth $10,000. It will be recalled that the lease called for a rental of $225 per month and independent of that the price of the equipment including the license in the agreement was $10,000. It is true that the lease and agreement should be read together, and it was contemplated that the license be used on the leased premises, but a separate price was fixed for the use of the premises (the lease) and the sale of the license and equipment under the agreement. Taking into consideration the net profit from the business together with the rental price stated in the lease, the court could have properly concluded, as it did, that the value of the use of the premises was $400 per month.

The judgments are affirmed.

Edmonds, J., Traynor, J., Spence, J., and Dooling, J. pro tem.,^* concurred.

Dooling, J. pro tem., sat in place of the Chief Justice, who deemed himself disqualified.

* Assigned by Acting Chairman of Judicial Council.