Ex parte Henshaw

McKinstry, 3.

— The attorney general, upon the relation of one Daniels, commenced an action against the petitioner herein, in which action judgment was entered by the Superior Court for Alameda that the petitioner had usurped and intruded into and was unlawfully exercising the office of police judge of the city of Oakland, and that the relator therein was entitled to the office. From that judgment the defendant therein appealed, but the appeal did not stay its’execution. (Code Civ. Proc., sec. 949.)

Upon proceedings taken in the said Superior Court, the defendant in that action, petitioner here, was adjudged guilty of contempt in that he had disobeyed the judgment and continued to occupy and exercise the office in disregard thereof.

I. It is contended by the petitioner that the judgment in the action for usurpation was absolutely void, and he was therefore not guilty of contempt in disregarding it; that when the action was commenced and judgment therein entered, there was no such office as that of police judge of the city of Oakland, because the act of March, 1866, “ to establish a Police Court, etc., in the city of Oakland,” was repealed by the act of 1885, to “ provide for police courts,” etc. (Stats. 1865-66, p. 193; Stats. 1885, p. 213.)

The decisions cited by counsel for petitioner-do-not meet the question here presented.

1. Persons imprisoned for contempt in having refused obedience to judgments in civil actions commanding them to do or refrain from a certain act have been discharged on habeas corpus, when a court of limited statutory jurisdiction has tried an action it had no power to try, and entered a judgment it had no power to enter, and has then attempted to enforce compliance with its judgment by imprisoning a party refusing to obey it.

2. Where there are no public offenses except those made such by statute, persons held under judgments directing their imprisonment have been discharged on habeas corpus, when it appeared that the act charged against the prisoner, and which he had been adjudged to have-done or committed, was not a crime, and could not be a crime, however fully it might be stated or described.

3. Where, although the act charged, and of which the prisoner had been found guilty, constituted a crime, yet the court had no power to impose the imprisonment-as a consequence of his conviction.

In the last two of the classes mentioned, as in the first, the discharge is founded upon the proposition that the court had no jurisdiction to render the judgment. Why no jurisdiction ? Because a court of criminal jurisdiction is limited to the trial of crimes or public offenses, and to the rendition in each instance of the judgment prescribed by law. In the second class the jurisdiction is in part derived from and is limited by the statutes declaring certain acts to be public offenses; in the third class, the power to pronounce judgment is derived solely from the statutes attaching certain penalties to certain offenses.

The jurisdiction of the Superior Court to try the question of usurpation of an office, and incidentally the question of the existence. of the office, is not derived from the act of 1866 (claimed to have been repealed by the act of 1885), or from any act relating to a particular office, but from its constitutional grant of general jurisdiction in civil cases, the exercise of which, so far as respects actions of this character, is regulated by the chapter of the Code of Civil Procedure treating of “ actions for the usurpation of an office or franchise.”

The act of 1866 provides for a Police Court, and the election of a judge thereof; the act of 1885 provides for a Police Court and the designation of a justice of the peace to be judge of the Police Court. Under either act the judge of the Police Court is the police'judge within the city of Oakland. The complaint alleged that the petitioner had usurped the office of police judge of the city of Oakland. The court had jurisdiction to decide that petitioner had usurped the office of police judge, if in its opinion the act of 1885 was in force, and the petitioner without authority was exercising the office of police judge- under that act. It had jurisdiction to decide that the complaint was sufficient to justify such a judgment, and to disregard as surplusage erroneous allegations as to the statutory origin of the office.

Moreover, the existence or non-existence of the office described in the complaint was an issue which the court had jurisdiction to try. Its finding upon that issue cannot be assailed collaterally, though it should be conceded the finding was erroneous; or though, in determining the issue, the court may erroneously have believed and assumed a statute was not repealed which was repealed. The trial of the issue could not have been staid by prohibition, nor could the judgment be annulled by certioran.

Suppose, in a proceeding like that, the judgment wherein is here claimed to be void, the superior judge should erroneously (in the opinion of another superior judge) hold that a statute creating an office had been repealed, when it had not been repealed, and base a judgment against the people on such erroneous ruling, would not the judgment, if unreversed, be a bar to a subsequent action on the-same facts? In such case the judgment would turn on a question of law, and a court can no more set aside a statute, still in force, than it can re-enact a repealed statute. But in deciding properly or erroneously that a statute purporting to create an office has been or has not been repealed, it neither abrogates nor does it create the office. It construes the law, and a mistake of law in that regard no more invalidates its judgment than does a mistake of law in any other particular. It decides the question of law, because its grant of jurisdiction authorizes it to decide all questions of law involved in the issues it has power to try. Except with respect to statutory limitations of the powers of the court itself, a court is authorized to treat statutes as but part of the law, and an erroneous interpretation of a statute, or an erroneous ruling as to the operative force of one of two statutes apparently conflicting, no more affects the jurisdictional power to render a judgment than does an erroneous interpretation of the unwritten law.

Every judgment that an office has been usurped involves an adjudication that there is an office to be usurped. The court has power to adjudge the existence, unless its jurisdiction is limited by the fact. But here the court had power to determine the fact, since its jurisdiction is not limited by the existence or non-existence of the fact; on the contrary, it has power to try and determine its existence or non-existence. None the less so because the fact depends upon the law. .

“An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state,” etc. (Code Civ. Proc., sec. 803.) “ In every such action, judgment may be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice may require.” (Code Civ. Proc., sec. 805.)

Even if it should be conceded that the jurisdiction of the Superior Court in this class of actions is derived solely from the Code of Civil Procedure, it could not successfully be contended that, by section 803, the jurisdiction is limited by the fact that there is an office, established by law, which the alleged intruder has usurped; that any other court may determine on habeas corpus, or in any collateral proceeding, that, under the law, there is no such office, and therefore that the judgment in the action for usurpation is void.

It is claimed that, in the exercise of the habeas corpus jurisdiction, every other Superior Court in the state has power to decide that the office does or does not exist, but that the court to whom is confided the trial of the question of usurpation has no such power. Surely the legislature (violating no constitutional provision) could confer on the Superior Court the power to determine—in an action brought for usurpation of an office—whether, under the laws of the state, the office exists. The rest is merely matter of statutory construction. Has the legislature conferred on the Superior Court the power tc determine the question? In our opinion, section 803 places the jurisdiction in the Superior Court.

Even if the act of 1866 was repealed by the act of 1885, and if (by reason of specific averments in the complaint) the Superior Court had no power to decide that the petitioner had usurped the office of police judge, as created and defined by the act last mentioned, petitioner is not entitled to his discharge. Certainly the Superior Court did not decide that the petitioner was rightfully in office under the act of 1885.

The Superior Court adjudged that the petitioner had unlawfully usurped and was unlawfully holding the office of police judge of the city of Oakland. It is claimed by the petitioner that the findings and judgment are to be referred to the averments of the complaint, and are therefore a finding and judgment that he had intruded into the office described in the complaint, and was unlawfully exercising the functions attributed by the complaint to that office; that the references in the complaint to the statutes relating to the police judge of Oakland— his election, term of office, and duties—clearly indicate that the defendant (petitioner) was charged with usurping the powers of police judge of the city of Oakland, as prescribed in the act of 1866; and that the judgment was, that he was exercising such powers. But if all this should be conceded in favor of petitioner, the result would be the same.

; It might be admitted that if no such office (police judge of the city of Oakland) exists in law, the portion of the judgment which declares the relator to be entitled to it is void; but that is a matter with which the petitioner has no concern except as to the matter of cods, — of which something will be said hereafter. If the petitioner was exercising the functions of a judge as the same are defined in the act creating the office of judge of the Police Court of the city of Oakland, — trying causes and rendering judgments,—and was called on by the state to show by what authority he was doing these things, he could not defend his conduct by proving no one else had power to exercise such functions. As between the people on the one hand and the petitioner on the other, the important question was not so much whether the office existed, as whether he was unlawfully exercising public functions, such as were attached to the office when the office did exist.

It may be true that an office must exist de jure, but it by no means follows that one who is exercising the public functions of an office, as the same were defined in a repealed statute, can deny the existence of the office, and base upon that denial a right to continue the exercise of powers unauthorized by law.

In argument, it is suggested that petitioner did not intrude into the office of police judge, but that he was lawfully exercising the functions of “ city justice.” But the court found that he had usurped the office described in the complaint. If the office of “city justice” is the same as that of police judge, the Superior Court adjudged petitioner had usurped that office; if the office of “city justice” is different from police judge, the court adjudged petitioner had usurped the police judgeship.

An office is of the nature of a franchise in that it can only be derived from the sovereign. Section 802 of the Code of Civil Procedure provides for an action against one who unlawfully exercises any public office “ or any franchise.” A franchise is said to be a particular privilege conferred by grant from government and invested in individuals. (3 Kent’s Com. 458.)

If an individual or corporation shall assume, without grant, to exercise powers which are prerogatives of the government, and such as can be exorcised by a private person only when granted by the government, can it be doubted that he or it should be adjudged to be unlawfully exercising such powers under the chapter of the Code of Civil Procedure which relates to actions for the usurpation of franchises? In such case, would the intruder be permitted to say: “I have not usurped a franchise, because there can be no franchise without a grant.” The response would be: “You have usurped a power of the government. You cannot act as if you had the franchise, and say you are not exercising it.”

At least the office of police judge of the city of Oakland was. One who unlawfully has assumed the powers of the former police judge is estopped from asserting, when he is pursued for the usurpation, that the office no longer exists. Our conclusion is, that the judgment that the petitioner usurped the office described in the complaint is not void. Whether it be erroneous is a matter to be decided after the appeal therefrom shall have been heard.

II. The contempt judgment of the Superior Court under which the petitioner is imprisoned, after reciting the proceedings (including the affidavit of one Daniels) on which it is based, proceeds: “How the court being fully advised of the facts and of the law in the premises, finds as matters of fact that each and all of the facts, matters, charges, and things stated and specified in the affidavit of said Daniels hereinbefore set forth, and upon which the order to show cause herein was based, are true and correct as there stated and alleged, and as a conclusion of law therefrom, the- court finds that the same constitute a contempt of the authority of this court.

“ Wherefore, it is ordered, adjudged, and decreed by this court that by reason of the acts and conduct of the said F. W. Hen shaw, specified and stated in the affidavit of the said S. F. Daniels hereinbefore set forth, he, the said F. W. Henshaw, is guilty of contempt of the authority of this court; and it is further ordered and adjudged by this court that, as a punishment for said contempt, the said F. W. Henshaw be and he is hereby fined in the sum of five • hundred dollars, and that he pay said fine to the clerk of this court, and it is further ordered and adjudged that in default of the payment of said fine he be imprisoned in the county jail of the county of Alameda until the said fine is paid, such imprisonment not to exceed one day for each and every, dollar of said fine that shall so remain unpaid.

“ It is further ordered and adjudged by this court that the said S. F. Daniels have and recover of and from the said F. W. Henshaw, defendant herein, his costs in the proceeding.”

It is claimed by petitioner that this judgment, in so far as it provides for his imprisonment, is void; that the judgment while purporting to impose the imprisonment as an alternative, yet directs that the petitioner be imprisoned until the fine be paid, or if not to be so read, that it provides he be imprisoned for the full period of five hundred days; that by the terms of the judgment the petitioner would not be entitled to his discharge, although he should pay the whole or any portion of the fine prior to the expiration of the five hundred days.

The argument is based upon the language of section 1205 of the Penal Code, which reads as follows: “A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of imprisonment, which must not exceed one day for every dollar of the fine.”

Section 1446 of the Penal Code, to which reference has been made, relates only to judgments of Justices’ and Police Courts.

In Ex parte Crittenden, 62 Cal. 534, it was held that upon a judgment imposing a fine for a contempt, it is competent for the court to direct that the party stand committed until the fine be paid.

Even, however, if it be conceded that section 1205 of the Penal Code is a limitation upon the power of. courts to punish for contempts, we think the judgment conforms to that section. The judgment directs that the petitioner be imprisoned until the fine be paid; and to avoid the possible interpretation that the word “ paid ” is used in any sense different from “ satisfied,”'—the statutory term,—it provides that such imprisonment shall not' exceed one day for each and every dollar of said fine that shall so remain unpaid. The judgment further provides that the imprisonment shall not occur at all except in default of the payment of the fine. In legal contemplation, the petitioner was present in court when the judgment was rendered. He certainly could not escape its consequences by reason of his absence, if he was absent. To say that he ought to have been given time to pay the fine is but to say that the judgment ought to have been one not directed by section 1205 of the Penal Code. We find nothing in the statute which commands or requires the court to give a defendant any definite period of time to raise the money to pay the fine, before the expiration of which he is not to be imprisoned.

The judgment specifies the extent of the imprisonment in specifying the maximum of time, and in providing that it shall not exceed one day for each dollar of the fine remaining unpaid. This view accords with the decision in Ex parte Ellis, 54 Cal. 204.

The section of the code does not in express terms authorize the discharge of the defendant, who has suffered a portion of the term of imprisonment, in case he shall pay the balance of the fine not satisfied by imprisonment at the rate of one day for each dollar of the fine. His right to be discharged under such circumstances is the result of judicial construction of the language of the section. A judgment in a criminal case which, after assessing the amount of a fine imposed, should also direct that the defendant be imprisoned until the fine be satisfied,and specify the extent of the imprisonment by fixing a term not exceeding one day for each dollar of the fine, would be sufficient in form, and valid, because it would comply with section 1205 of the Penal Code. The judgment before us limits and specifies the imprisonment, by providing that it shall not exceed one day for each and every dollar of the fine remaining unpaid. It is sufficient and valid, because it declares what has been decided to be the legal effect of a judgment in literal accord with the statute.

The whole judgment is not void because it attempts to give costs to the relator, or because it does not specify the amount of such costs. It does not provide for the imprisonment of petitioner in default of the payment of costs.

Petitioner also contends the judgment is void, because it does not recite the facts which constitute the contempt of which the defendant (petitioner) is adjudged guilty.

Section 1211 of the Code of Civil Procedure provides that when a contempt, not in the presence of the court, is committed, an affidavit shall be presented of the facts constituting the contempt. Upon the affidavit may be made an order to show cause. (Code Civ. Proc., sec. 1212.) When the person upon whom the order is served appears, the court must proceed to investigate the "charge” (Code Civ. Proc., sec. 1217), and must determine whether the person proceeded against “is guilty of the contempt charged.” (Code Civ. Proc., sec. 1218.) Under the sections of the code, the finding of the Superior Court that the averments in the affidavit or charge of Daniels, on which the order to show cause was based, were true, that the commission of the acts affirmed in such affidavit constituted a contempt, and that by reason of the commission by petitioner of the acts alleged in the affidavit he was guilty of contempt, was a determination that he was guilty of the contempt charged. Of course such determination does not preclude us from inquiring if the acts charged, and found to have been done, really constitute a contempt. But the record clearly shows upon what facts, proved to its satisfaction, the court based the contempt judgment. In People v. Turner, 1 Cal. 152, relied on by petitioner’s counsel, the judgment was simply that a person “be imprisoned forty-eight hours and fined five hundred dollars for contempt of court.” The Supreme Court held the order should be annulled on certiorari. This was before the enactment of any statute regulating proceedings for contempts.. Moreover, the decision was clearly right upon common-law principles, since, for aught that appeared, the judgment was a mere arbitrary abuse of power, not preceded by any investigation, and not showing an adjudication that any particular contempt had been committed.

In our opinion, the facts charged, and of which the petitioner was found guilty, constituted a contempt which the Superior Court had power to punish.

Let the petitioner be remanded to custody.

Searls, 0. J., Paterson, J., and Sharpstein, J., concurred. McFarland, J., and Temple, J., dissented.