Hall v. Superior Court

This proceeding in prohibition was instituted to restrain the judges of the superior court in and for the county of Imperial from further participating in an action pending in said court. The writ is sought upon the ground that the said judges are disqualified under the provisions of subdivision 1 of section 170 of the Code of Civil Procedure to sit or act in said action by virtue of their alleged interest 'in the subject matter of said action and are further disqualified by virtue of the provisions of subdivision 5 of section 170 of the Code of Civil Procedure as it existed at the time the action was instituted and the proceedings in controversy here heard and determined.

The facts' set forth in the petition for the writ of prohibition are these: The petitioner herein commenced an action on May 10, 1917, in the superior court of Imperial County against “Imperial Water Company No. 7,” a corporation, for the purpose of recovering the sum of $12,610 for damages, alleged to have been done to petitioner’s land by the seepage of water from one of the canals of said Water Company upon the land of the petitioner, and for injunctive relief abating the use and operation of said canal in such a manner as to cause the water therein to seep upon the petitioner’s land. A trial of the cause was had before Judge Cole, one of the respondent judges, who, subsequent to a trial of said case, rendered a decision directing a judgment in favor of the defendants. Only a minute entry of this judgment was made. Subsequent thereto, in August, 1923, upon motion by the attorney for the petitioner, plaintiff in said action, the court set aside said minute entry and decision, but refused the request to permit additional testimony to be introduced. On August

The present proceeding was instituted in conjunction with two similar proceedings directed against two other water companies — Water Companies No. 3 and No. 5. As the time within which the motion for a new trial might have been made in these cases had expired by operation of law and as there were no proceedings pending in those two cases to which a writ of prohibition could be directed, no hearing by this court was asked in those cases and the judgment therein is now final. We are confined, therefore, to the case against Water Company No. 7, in which action a decision has been made, but no findings made or judgment entered, and, consequently, there are proceedings in that case to which a writ of prohibition — if it be deemed that a writ should issue — could be directed.

Petitioner charges that the respondent judges of the superior court in Imperial County are disqualified to sit or act in the action pending therein by virtue of the provisions of section 170, subdivision 1, of the Code of Civil Procedure, for interest in said action growing out of their ownership of land within the confines of said Imperial Irrigation District. Respondents insist, on the other hand, that the Irrigation District not being a party to the action and the action not relating to its property, the ownership of land in the Irrigation District by the respondent judges does not create grounds for their disqualification. In other words, the respondents declare that a superior court judge, who is a land owner in an irrigation district, may sit and act in a case directly affecting the property owned by such district unless or until such district is made a party to the action. In this behalf it is argued that there is not before the court a party in whose welfare or in whose property the respondent judges have an interest, and, in the absence thereof, their disqualification cannot be raised. The case of San Diego v. Andrews, 195 Cal. 111 [ 231 Pac. 726 ], relied upon by respondents in support of this proposition is not in point. That case involved the disqualification of the trial judge under subdivision 5 of section 170 of the Code of Civil Pro

[1] The interest which disqualifies a judge from acting judicially in an action under section 170, subdivision 1, of the Code of Civil Procedure, must be a certain, definable, pecuniary, or proprietary interest which will be directly affected by the judgment rendered (Adams v. Minor, 121 Cal. 372 [ 53 Pac. 815 ]; Meyer v. San Diego, 121 Cal. 102 [ 66 Am. St. Rep. 22 , 41 L. R. A. 762 , 53 Pac. 434 ]; North Bloomfield etc. Co. v. Keyser, 58 Cal. 315 ; Heilbron v. Campbell, 3 Cal. Unrep. 204 [ 23 Pac. 122 ]; Quatman v. Superior Court, 64 Cal. App. 203 [ 221 Pac. 666 ]; LindsayStrathmore Irr. Dist. v. Superior Court, 182 Cal. 315 [ 187 Pac. 1056 ]). It is not essential that the disqualification be manifest upon the face of the complaint. It is sufficient if the disqualifying interest is disclosed by the facts alleged in the complaint in conjunction with extrinsic facts shown in support of the petition for prohibition (Lindsay-Strathmore Irr. Dist. v. Superior Court, supra). [2] “The judge may be disqualified by reason of his interest in the subject matter where, because of the form of the particular action or the ldnd of relief asked, he would be unable to become a party to such action, if he so desired.” (Lindsay-Strathmore Irr. Dist. v. Superior Court, supra.) And a judge is disqualified if he is a stockholder in a corporation

In Adams v. Minor, supra, the action involved the validity of certain bonds issued by an irrigation district. The Bank of Modesto held a portion of these bonds. The judge before whom the case was tried owned some shares of capital stock in said bank. The parties to the action were Adams, Stoddard, and certain others, as plaintiffs, and the collector of the Modesto Irrigation District as defendant. The First National Bank of Los Angeles was an intervener in the action. It did not appear that the Bank of Modesto, in which the respondent judge was a stockholder, and which held certain of the disputed bonds of the irrigation district, was a party to the action. The question involved was whether or not the judge was disqualified by reason of his interest by virtue of being a stockholder in the Modesto Bank from trying the action. The court held that the said judge was disqualified from sitting or acting in the case,, and the mere fact that subsequent to the submission of the cause and pending decision the judge disposed of his stock in the said bank did not remove the disqualification. The following language constitutes the basis of the court’s decision :

“It was held by Chancellor Sanford in Washington Ins. Co. v. Price, 1 Hopk. Ch. (N. Y.) 1, that a chancellor being a stockholder in a corporation cannot do any judicial act in a cause in which that corporation is a party, although he is not personally a party to the record.

“We can see no substantial difference in the case of a judge who is a stockholder in a corporation sitting in a cause brought by or against such corporation, and a case where the matter in controversy involves the property of such corporation, although it is not a party to the action.”

[3] The rule enunciated in that case governs and controls us in the determination of the question presented in the case at bar. It seems obvious that the disqualification of the respondent judges does not depend, as respondents contend, upon the Irrigation District being a party to the actioh, but rather upon the interest of the Irrigation District in the property involved in the action, and the interest of the respondent judges in the Irrigation District as

The Imperial Irrigation District is a public corporation. It is the owner of numerous canals, rights of way, and other easements within ■ Imperial County. Having purchased the properties of the Imperial Water Company, including the canal complained of, said Irrigation District became interested in the outcome of the action, seeking, among other things, the abatement of said canal. It is patent that the granting or the denial of a decree, subsequent to said purchase by said Irrigation District, would necessarily affect said Irrigation District. If the relief prayed for in the action against the Water Company is awarded, the canal, which is the property of said Irrigation District, cannot be used until it is put into such shape that water will not seep therefrom upon the petitioner’s land. This will necessarily entail an expenditure of money — the amount not being material — by the said District. If the relief is denied the Irrigation District will not be compelled to expend any money in the conditioning of said canal. If the relief prayed for is granted and the Irrigation District discontinues the use of the canal, the said District will be pecuniarily affected by the same, for the said canal is now used to divert some ten thousand acre-feet of water per annum and the closing of the canal would materially diminish the supply of water available for use within said District. Thus it is palpable that a judgment and decree in said action, now pending in the superior court in lmpe

[4] Respondents contend, however, that petitioner elected to proceed against the Water Company, who it is conceded is a cotort-feasor, without joining the Irrigation District, and having done so she cannot now complain because she neglected to make the District a party and ask that a writ of prohibition be issued. This contention overlooks the fact alleged under oath in the petition for the writ of prohibition, and which is not controverted, that the petitioner had no knowledge of the facts concerning the responsibility of the Irrigation District for the diversion of the water nor of the ownership by said District of the canal, of which complaint is made. Moreover, if the Irrigation District is interested in the cause by virtue of its ownership of property which will be affected by a judgment therein, the objection made on the ground of the disqualification of the respondent judges may be raised at any time (Lindsay Strathmore Irr. Dist. v. Superior Court, supra). Respondents insist, however, that the denial of injunctive relief depended upon facts as they existed at the time of trial, upon facts which occurred prior to the assumption of ownership of the canal .by the Irrigation District, and that the said District did not assume by the purchase of the Water Company’s property the liabilities of said Water Company which arose prior to the purchase. It is therefore immaterial, it is argued, whether relief for the injury caused by the said canal be in the nature of damages or for equitable relief or both. While it may be conceded that the District did not assume liability for the damage caused by the canal prior to the purchase thereof, and conceding also that the Water Company was independently liable for the damages occasioned by the seepage from the said canal, yet the argument ignores the very salient fact that not only arc damages sought in the action, but, in addition thereto, equitable relief in the nature of an injunction abating the said canal. The uncontroverted allegations in the petition for the writ are to the effect that the canal still continues to be a nuisance and continues to injure the petitioner’s land by seepage of water therefrom. This being so, if injunctive relief is granted and the said canal is abated, the Irriga

[7] The trial judges were also disqualified to sit or act in said action by virtue of the provisions of subdivision 5 of section 170 of the Code of Civil Procedure as it existed at the time the action was instituted. Respondents insist that the Irrigation District not being a party to the action this code section is inapplicable to the instant case. The facts set out in the petition for the writ bring this ease clearly within the purview of said code section, which provided-: “In an action or proceeding brought in the superior court ... by or against the reclamation board of the state of California, or any reclamation, levee, swamp land or drainage district, or any public agency, . . . affecting or relating to any real property or any easement or right of way, levee, embankment, canal, . . . the judge of the superior court of the county, ... in which such real property, or any part thereof, or such easement or right of way, . . . canal or work, or any part thereof is situated, shall be disqualified to sit or act, and such action, if brought in the superior court, shall be heard and tried by some other judge of the superior court, requested to sit therein by the governor. ...” There is an additional provision permitting parties, by stipulation in writing, to waive the disqualification. No such waiver appears in the instant case. An irrigation district, although not specifically designated in said code section, is a public agency of a kindred character to those particularly mentioned therein and is one of the “public agencies” contemplated by said code section. (Lindsay-Strathmore Irr. Dist. v. Superior Court, 182 Cal. 315 [ 187 Pac. 1056 ].)

[8] It is not disputed that the complained of canal is situate in Imperial County. The offer of an amended and supplemental complaint by the plaintiff, petitioner herein, in the action pending in said superior court of Imperial County, seeking in good faith to make the Imperial

In People v. De La Guerra, supra, a change of venue was requested on the ground that the judge was disqualified. Instead of granting the request, the judge dismissed the action because he believed that under the pleadings there was nothing to try and that a change of venue was unnecessary. This court held the dismissal of the proceedings was void on the ground of the incompetency of the judge to act and that the refusal to change the place of trial was erroneous.

In Younger v. Superior Court, supra, the trial judge struck out the complaint and dismissed the action, although the complaint alleged his interest in the action and he was made a party thereto. In dismissing the action the judge stated, in effect, that the court was satisfied that the allegation was made “for the sole purpose of making said Lucas P. Smith a party defendant in said action in order to disqualify him as judge and to prevent him from acting therein as judge and for no other reason.” On certiorari, this court held the action of the trial judge to be void and stated, among other things, that “where the judge is made a party, upon proper allegation, he cannot arbitrarily determine that he is not a proper party, nor that he is not interested.”

[9] Although in the instant case the Imperial Irrigation District was not a formal party to the action, yet the motion to file an amended complaint making said Irrigation District a party, if granted, would have disqualified the respondent judges from sitting or acting in the case. The

The case of San Diego v. Andrews, 195 Cal. 111 [ 231 Pac. 726 ], cited by respondents to the effect that no disqualification arises until the irrigation district is made a party to the action, presents no barrier to our conclusion. In that case the original parties to the action entered into a stipulation waiving the disqualification of a judge. Thereafter an irrigation district and other parties intervened. The question of the effect of the stipulation upon the parties subsequently intervening arose. This court held that since, at the time the stipulation was entered into and filed, none of the public agencies mentioned in or contemplated by subdivision 5 of section 170 of the Code of Civil Procedure was a party to the action, the stipulation was a nullity and that the disqualification did not arise until the entrance into the case of the irrigation district as a party. The soundness of this conclusion is indubitable. In the instant ease, however, the respondent judge refused to permit the Irrigation District to be made a party and thus in effect, in a manner of speaking, circumvented his own disqualification which would necessarily have arisen as soon as the Irrigation District became a party to the action.

It should be here noted, however, that subdivision 5 of section 170 of the Code of Civil Procedure was by the amendment of 1925 eliminated. (Stats. 1925, p. 18.) Having been eliminated, it follows that although the judges were disqualified under this subdivision of said section to participate in said action, they are not now disqualified. Were it not for the fact, therefore, that the judges, as previously indicated, are disqualified from sitting by virtue of the provisions of subdivision 1 of section 170 of the Code of Civil Procedure, we would be constrained to deny the writ sought.

[11] It is insisted, however, that the petitioner has other remedies, i. e., by appeal, and that, therefore, the writ should not issue. This argument is not well taken. In the case of Lindsay-Sirathmore Irr. Dist. v. Superior Court, supra, the writ was granted, although the same result could have been achieved by taking an appeal. In Quatman v. Superior Court, 64 Cal. App. 203 [ 221 Pac. 666 ], the same objection was raised as in the instant case and in answer thereto the court said: “Where a judge is disqualified to act in any proceeding or cause the disability necessarily enters into all orders and decisions made by him other than those specially excepted and provided for in the codes, and to refuse the writ on the ground that a remedy might be had in another manner would be to permit the trial to proceed to a final conclusion by the disqualified judge and then set aside the proceedings as void ab initia." No good purpose could be served in permitting a disqualified judge to perform certain acts and. thereafter declare them void on

The order of the respondent court denying the motion of the petitioner for leave to file an amended and supplemental complaint making the said Irrigation District a party to said action should be annulled on the ground that the respondent judge who denied said motion was disqualified to act thereon and the judges of the respondent court should be prohibited from acting on said motion on the ground of their disqualification under subdivision 1 of section 170 of the Code of Civil Procedure. Let the writ issue accordingly.

Waste, C. J., Curtis, J., Seawell, J., Richards, J., and Lawlor, J., concurred.