Matter of Zany , 164 Cal. 724 ( 1913 )

A majority of this court has heretofore in several instances tacitly held that the supreme court has no power to transfer a case in habeas corpus from a district court of appeal to the supreme court for a rehearing. I have never agreed to such construction of the constitution. In my opinion it is directly contrary to the constitutional provisions on the subject. The language conferring the power is so clear and plain that no interpretation is necessary. The district courts were created by a constitutional amendment adopted in 1904 amending several sections of article VI. Section 4 contains this clause:

"The supreme court shall have power to order any cause pending before the supreme court to be heard and determined by a district court of appeal, and to order any cause pending before a district court of appeal to be heard and determined by the supreme court. The order last mentioned may be made before judgment has been pronounced by a district court of appeal, or within thirty days after such judgment shall have become final therein. The judgments of the district courts of appeal shall become final therein upon the expiration of thirty days after the same shall have been pronounced.

"The supreme court shall have power to order causes pending before a district court of appeal for one district to be transferred to the district court of appeal of another district for hearing and decision."

This provision expressly gives the supreme court power to transfer any cause. This includes cases in habeas corpus as clearly as it includes any other kind of action. The word "cause" includes proceedings in habeas corpus. Bouvier defines the word "cause," when used to refer to judicial proceedings, as "A suit or action. Any question, civil or criminal, contested before a court of justice." (Vol. 1, p. 295. See, also, Webster's Dictionary and Standard Dictionary.) There are many decisions of like effect. (Taylor v. United States, 45 Fed. 531; Erwin v. United States, 37 Fed. 470, [2 L.R.A. 229]; Inre Farnum, 51 N.H. 383; Nacoochee H.M. Co. v. Davis. 40 Ga. 320;Bridgton v. Bennett, 23 Me. 425.) The two cases first cited hold that a proceeding to punish a witness for contempt of court is a "cause." In the Bridgton case the court said: "A term more comprehensive could not have been readily selected."

The context of section 4 shows that proceedings in habeascorpus were intended to be included in the term "cause" in the paragraphs above quoted. The first paragraph of the section defines the appellate and original jurisdiction of the supreme court. With respect to the latter, it declares that it shall have "power to issue writs of mandamus, certiorari, prohibition andhabeas corpses." Following are provisions defining the boundaries of the several districts of the state. Then comes a paragraph defining the original and appellate jurisdiction of the district courts of appeal. Their original jurisdiction is declared to include "power to issue writs of mandamus, certiorari, prohibition and habeas corpus." Then follows the clause first above quoted giving the supreme court power to transfer "any cause" to or from either court. In cases of mandamus, certiorari, and prohibition, begun in the district court, the supreme court has always recognized and has frequently exercised this power of transfer. By the above quoted clauses the proceeding in habeascorpus is placed in the same category with the classes of cases just mentioned. It seems indisputable that the court must have the same power to transfer in habeas corpus as in the other cases. If a case in one of the classes first named is a "cause," a proceeding in habeas corpus must also be a "cause" within the meaning of the section.

Furthermore, section 24 of the same article, being a part of the same amendment, provides that if the justices of a district court "are unable to concur in a judgment, they shall give their several opinions in writing and cause copies thereof to be forwarded to the supreme court." It does not provide for a transfer to the supreme court in such cases. The paragraph of section 4, first quoted, has always been considered to authorize such transfer and transfers are made accordingly. It was evidently intended to include cases where there was a disagreement in the district court, as well as other cases, in order to avoid the predicament of absolute inability of the district court to dispose of the cause, or the imperative necessity, under the reasons given in Luco v. De Toro, 88 Cal. 26, [11 L.R.A. 543, 25 P. 983], for some of the justices to concur in a judgment which they believe to be erroneous, merely to end the litigation. There is absolutely no good reason for forcing the justices of that court to do this in habeas corpus cases alone when it can be avoided by allowing section 4 to have the effect which its words express.

The fact that the supreme court has heretofore entertained original applications in habeas corpus by persons who have been remanded on a similar application to the district court, and the fact that the legislature has recognized its power to do so, is without argumentative force. The power is given by the constitution. The legislature can neither take it away nor confer it, nor does legislative sanction strengthen it. A judgment inhabeas corpus refusing to discharge a person in custody on a criminal charge is no bar to a subsequent writ in any court for the same cause. It is a bar only where there is a discharge, or where two persons are contending for the right to the custody of a third person. (1 Freeman on Judgments, sec. 324; Ex partePerkins, 2 Cal. 424; Ex parte Ring, 28 Cal. 251.) This principle gives this court full power to entertain such applications after a judgment of remand in the district court and the exercise of this power heretofore has been wholly attributable to this reason and not to the theory that no power existed to order a transfer. No application for a transfer to this court from a district court has ever been made in a case where the right to custody of a third person was in issue and the district court had given judgment upon it. Being a former adjudication, there would be no right or power of review in any court, unless this court has power, under section 4, aforesaid, to vacate the decision of the district court of appeal and transfer the cause to the supreme court for a rehearing.If the power exists in that case, it must exist in all cases.

The argument that the provision should not be given effect to allow transfers from district courts, because hitherto no appeal has ever been provided in this state from a decision in habeas corpus by a superior court or judge thereof, or by a justice of the supreme or district court, I cannot understand. If the words are unambiguous, as I think must be admitted, and the power of transfer is given thereby, the giving or withholding of the right of appeal from decisions of other tribunals by other statutes or parts of the constitution has no bearing upon the meaning of this particular part of the constitution. Such analogies are significant only when there is an ambiguity to clear up. That there should be a right of appeal by the state from the judgment of the superior court discharging a prisoner is shown by the result of the Hughes case (159 Cal. 360, [113 P. 684]), where a prisoner in Folsom state prison, regularly convicted and sentenced by the superior court of one county, was released without legal cause by the superior court of another county, and the state was declared to be remediless. Moreover, the legislature could at any time destroy this argument by providing for an appeal in such cases. The argument amounts to only this, that since a defect in one part of our judicial system has been suffered to continue so long, although it has caused some miscarriages of justice, it must be assumed that a constitutional provision designed to avoid a similar defect in the district court system does not mean what it plainly says, because to give it such effect would make the system different in that respect from any that has heretofore been established. It seems to me that the obvious defect existing as to superior courts furnishes a good reason for avoiding it in the newly created jurisdiction and for giving the provision that effect, even if it were not clear, but might reasonably be so construed.

The decision defeats to a very large and important extent one of the main objects for which this power of transfer was given. In People v. Davis, 147 Cal. 348, [81 P. 718], this court declared that the power to transfer was given to make the supreme court the court of final decision upon all important questions of law and to enable it to supervise the decisions of the several district courts of appeal, in order to secure a uniform rule of decision throughout the state. The proceeding in habeas corpus is resorted to, more than any other form of action, to obtain decisions upon the construction, constitutionality, and effect of penal laws. The result of this decision is that we may have in this state three independent judicial systems, each construing and giving effect to statutes, charters, and the constitution, in their own way and differently from the others, without there being any means of revising or harmonizing their decisions, except upon the chance that some other person may bring a case in the supreme court involving the same question. The experience of eight years which have elapsed since the district courts were created demonstrates that this chance never happens when a decision of the district court is against the state.

For these reasons I am of the opinion that the power to transfer exists in cases of proceedings in habeas corpus as fully as in any other kind of action or proceeding, and that to hold otherwise is contrary not only to the letter but also to the purposes of the constitutional provision.