Mark v. Superior Court

This is an application for a writ of prohibition to prevent the respondent court and the judge thereof from enforcing obedience to a decree and writ of injunction issued pursuant thereto.

From the petition and papers it appears that on July 18, 1899, one J. C. Green, as plaintiff, commenced an action in said superior court against the said board of education and the members thereof, to obtain an injunction.commanding and requiring said board of education and the members thereof to cause to be used in the public schools of the city and county of San Francisco the text-books of the "California system of vertical penmanship,” and to refrain from using and causing to be used text-books of the "Shaylor system of vertical round-hand penmanship”; that on the 18th of July, 1899, an order was issued by said court directed to the defendants in said action to show cause why an injunction should not issue restraining them from using or causing to be used in the public schools of said city and county the text-books of the Shaylor system of vertical round-hand penmanship. Hpon the return to the said order to show cause the court, after hearing the evidence adduced, on July 31, 1899, denied the plaintiff’s motion for a writ of injunction pendente Ute, and dismissed said order to show cause. At the opening of the school year in the month of August, 1899, the text-books of the Shaylor system of round-hand penmanship were introduced into the public schools of the city and county of San Francisco, and ever since have been used as a uniform system of text-books upon penmanship therein, and no text-books of the "California, system of vertical penmanship” have been used in the public schools of said city and county subsequent to the opening of the said public schools iti

•Wherefore, the petitioners pray for a writ of prohibition commanding the respondent court and the judge thereof to desist from hearing further the said order to show cause, and from all further proceedings in the said action pending said appeal.

It appears in the petition, when the attention of the respondent court and judge was called to the fact of appeals having been taken, that said judge stated in open court that he considered the said appeals would stay only that portion of the decree which commanded the defendant board of education to cause to be used in the public schools in the city and county of San Francisco the text-books of the California system of vertical penmanship, but that the said appeals did not and could not stay that portion of the said decree which commanded and directed the defendant board.of education to refrain from using or causing to be used in the public schools text-books of the Shaylor system of vertical round-hand penmanship; that the said judge further stated in open court that if the defendant board were prevented by injunction from using or causing to be used text-books of the Shaylor system, it would be the moral duty of said board to cause the text-books of the California system to be used in s'aid public schools. It appears further that the real parties in interest in said action are the plaintiff J. C. Green, and the intervenors H. S. Crocker Company and Ginn & Co. of Boston.

The question presented seems to be whether the prohibitory portion of the injunction can be separated from the mandatory portion, or whether the two are so inseparably connected as to render it improper during the appeal to enforce one while the other is suspended.

It is very apparent that the purpose of the action is not only to prevent the use of the Shaylor system, but also to compel the

The findings and judgment of the respondent court were to the effect that the contract between said board and the H. S. Crocker Company, the intervenors in said action, was valid and in force, and that the contract made with the intervening firm' of Ginn & Co. was invalid. The injunction ordered by the decree was but the means employed to give effect to said judgment. This decision and judgment having been suspended by the appeal, it would seem but proper that the injunction, being merely the means of giving effect to such decision and judgment, would also be suspended pending the appeal. An injunction, though restrictive in form, if it have the effect to compel the performance of a substantive act, is mandatory and necessarily contemplates a change in the relative positions or rights

As stated in Dewey v. Superior Court, 81 Cal. 64 : “During the pendency of the appeal the court below could do no act which did not look to the holding of the subject of the litigation just as it existed when the decree was rendered.” In Dulin v. Pacific etc. Coal Co., 98 Cal. 304 , the effect of the appeal from the judgment was to leave the parties in the same situation with reference to the rights involved in the action as they were prior to the rendition of the judgment. And in Schwarz v. Superior Court, 111 Cal. 106 , it was held that the mandatory injunction pendente lite commanding the removal of trade signs is stayed and suspended in its effect by an appeal from the order granting the same; and pending such appeal the petitioners could not be punished for contempt for failure to remove or discontinue such trade signs. Foster v. Superior Court, 115 Cal. 279 , is a case where there was a contest as to which of two parties had been elected a director in the San Francisco & Northern Pacific Railroad Company. The court below, on trial of the contest, decided that Smith and not Lilienthal had been elected a director with the others, and that he was entitled to exercise the office, and that Lilienthal should be excluded therefrom. Judgment was entered in accordance with this decision, and also enjoining the defendants from interfering with Smith in the exercise of his office as director. On the same day the judgment was rendered an appeal was taken therefrom, and thereafter at a meeting of the directors Smith sought to enter the room in which the meeting was held, but was excluded therefrom by Foster, as chairman of the board, and the meeting of the directors was held without permitting him to be present. Upon an application the superior court cited Foster before it to show cause why he should not be punished for contempt, and upon the hearing adjudged him guilty of contempt in thus preventing Smith from being present at a meeting of the directors. Upon certiorari this court annulled that order. In the opinion it is said: “The injunction in the judgment against the interference with Smith’s right to act as director was but ancillary to the judgment determining that he had such right and was merely incidental thereto. Although

The real controversy before the respondent court, as already shown, was as to which one of the systems of penmanship, whether the so-called Shaylor system or the California system, had been legally adopted and should be used in the public schools of said city and county. The court found in favor of the California system and against the Shaylor system, and decreed that the former system should be used and the latter should not be used.

It would require, however, like affirmative action on the part of the board of education to cause to be excluded from the pmblic schools and cease to be used therein the Shaylor system ns it would to cause to be used the California system in said schools. But it is conceded that the board of education cannot be required, pending the appeal, to cause to be used in said public schools the California system. And it seems equally clear that such board should not be compelled to carry out the other portion of the decree requiring them to cease using the said Shaylor system. The board should only be required to remain passive and take no action in favor of or against either of the real parties to the contest in said action, pending the appeal.

In seeking to compel the petitioners, the board of education, to carry out the portion of the decree in question, under the circumstances, pending an appeal from the whole of such decree, the respondent qourt exceeded its jurisdiction.

Let the writ issue as prayed.