Woody v. Peairs

Petitioner applied to the supreme court for a writ of prohibition to prevent respondent from punishing petitioner for contempt of court, and the proceeding was duly transferred to this court for hearing and decision.

From the petition and from the return of respondent, the following facts appear: The petitioner, at all times mentioned, was the duly elected, qualified, and acting auditor of Kern County. On the third day of June, 1915, one J. J. Deuel petitioned the superior court of Kern County for an order allowing his two certain claims for services, one in the sum of $240 and the other in the sum of $925, “under and by virtue of section 4307 of the Political Code”; and said court was asked to make an order requiring the auditor to draw his warrants for said sums and a further order requiring the treasurer to pay the same. After a hearing in the matter of said petitions the court found the following facts: That, from January 2, 1915, to and including April 9, 1915, said J. J. Deuel “was employed by the grand jury of the county of Kern in securing evidence and witnesses in the various investigations being conducted by and before said grand jury”; that during said times said grand jury “was actually engaged in investigations into the conditions of affairs in the county of Kern, as provided by law”; that said grand jury “was engaged in an effort to close up all houses of prostitution and prevent their operation, and to prevent felonies, and was further engaged in an effort to stop the illicit sale of intoxicating liquors; and that during all of the time there was a large number of matters of this kind and character being investigated by the said grand jury, and that ... it became and was necessary for the said grand jury to employ special detectives, for the reason that the sheriff of the county of Kern was unable to furnish sufficient officers who could assist

Contemporaneously with the filing of said petitions by said Deuel, one John Lang filed petitions alleging the same facts, the amount claimed by him being $523.65, which included an

On the second day of July, 1915, a citation was issued to petitioner, Woody, requiring him to show cause, on the eighth day of July, why he had not complied with said orders above referred to. Upon said last-mentioned date, after hearing, the court adjudged said Woody guilty of a willful contempt of court in disobeying said orders and ordered that he be committed to the county jail of the county of Kern, “to be there imprisoned until he shall have obeyed said judgment, order, and decree of this court by drawing and issuing” warrants as directed.

Petitioner contends that the said superior court, respondent, was without jurisdiction to make said orders, the respective claims not being county charges, and that there is no provision of law authorizing the foreman and secretary of the grand jury or the superior court to appoint anyone to do special work for the grand jury as a detective.

We think the court exceeded its jurisdiction in adjudging petitioner guilty of contempt and that the adjudication must, therefore, be set aside as null and void.

In the first place, it is to be remarked that counsel for the respondent have not pointed to any law authorizing a grand jury or the superior court to designate or appoint or require any person other than the public officers charged by law with the performance of such duties to search for testimony and subpoena witnesses to be used by and before the grand jury as to matters legally under investigation by that body; and, unless there is some express authority for such a course either in the grand jury or the superior court, it is very doubtful whether such power may legally be exercised by either, for-we do not believe that such authority comes within the inherent powers of the superior court.

The grand jury is clothed by law with certain specifically enumerated powers. (See secs. 915 and 928 of the Penal Code and sec. 4151 of the Political Code.) In none of said sections is there any provision that the grand jury may employ any person other than the public officers whose duty it is to perform that service to gather testimony or subpoena witnesses. On the contrary, section 1328 of the Penal Code

There are, it is true, certain occasions on which a person not a public official and denominated an elisor may, by an order of the superior court, be designated and appointed to serve and execute legal processes or orders. This may occur where both the sheriff and the coroner are disqualified for any reason from performing that duty. (See Pol. Code, see. 4173.) And it doubtless is correct to say that in the cases mentioned by said "section an elisor, duly appointed as so provided, would be competent to serve in the county in which he resides subpoenas issued by the district attorney (Pen. Code, sec. 1326, subd. 1) for such witnesses as the grand jury, for the purposes of an investigation pending before them, may desire. But, in any case where the appointment of an elisor becomes necessary there must be a showing made of the disqualification of the sheriff and the coroner to serve and execute processes and orders. There was no such showing made in this case.

In the second place, if we assume that the grand jury, under the authority of the superior court, may legally employ persons to assist it in the investigation of crime or other matters coming within the legal competence of that body, and thereby bind the county to the payment of the expenses following from such employment, or, if it be assumed that the expenses incurred in the employment of persons other than the public official charged with such duties to subpoena witnesses for the grand jury or gather testimony to be presented to that body may be considered as coming within the expenses contemplated by subdivisions 2 and 3 of section 4307 of the Political Code, then it is very clear that the same cannot be allowed or paid until they shall have been presented and filed in the form and manner prescribed by section 4076 of the Political Code and thereupon considered, approved, and allowed as provided by section 4075 of said code. Nor has the auditor authority to audit such claims until they are so presented and filed and approved and allowed. (Pol. Code,

But there is still another view to be taken of the question submitted here for decision, viz.: Conceding that the services rendered by the claimant to the grand jury constitute a legal charge against the county, and that it was legally required that the auditor rather than the judge of the superior court should audit the claim to authorize its payment by the treasurer, the remedy of the claimant as against the refusal of the auditor to audit the claim or demand would be by mandate; for in such case the duty of the auditor to audit the claim would be one expressly enjoined upon him by law. (Code Civ. Proc., sees. 1085, 1086.)' And in such case, the

We conclude: 1. That if the claim in question constituted a legal charge against the county, it is not one of those the amount of which may be fixed and then allowed by the judge of the superior court, but is of that character of claims which must be presented and filed, and approved and allowed and audited as provided by sections 4075, 4076, and 4091 of the Political Code; 2. That, even if it be a claim which may be fixed and ordered paid by the judge of the superior court, the county auditor is not required to audit it to authorize its payment by the treasurer; 3. That, if it is a claim which cannot be paid without the official approval of the auditor, then mandate or some other appropriate proceeding, after the claim has been regularly passed upon and allowed, is the remedy to be resorted to against the auditor in case he refuses to audit the demand or claim.

It follows from the foregoing that the order adjudging petitioner guilty of contempt of court is absolutely void, and that the same must be annulled, set aside, and vacated. It is so ordered.

Chipman, P. J., and Burnett, J., concurred. -