(152 Cal. 1)

BASHORE v. SUPERIOR COURT OF TULARE COUNTY et al. (Sac. 1,511.) (Supreme Court of California. Sept. 13, 1907.) 1. APPEAL AND ERROR-ESTOPPEL TO ALLEGE ERROR-ACCEPTANCE OF TERMS.

Where the court, as a condition to granting plaintiff a continuance, imposed as conditions that plaintiff pay the sheriff's fees for summoning the jury, the per diem of 12 jurymen, and defendants' costs in preparing for trial, which conditions plaintiff accepted, except as to the per diem of jurors, he could not thereafter claim that the court had no authority to require payment of the sheriff's fees for summoning the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 961.]

2. MANDAMUS-RIGHT TO WRIT-DISCRETION.

Plaintiff not having been required to pay such fees before the order granting the continuance was entered, and having thereafter paid only defendants' costs in preparing for trial, the Supreme Court, in the exercise of its discretion, would not grant mandamus to compel the trial judge to reset the case for hearing.

In Bank. Petition for mandamus by John Bashore against the superior court of Tulare county and Hon. W. B. Wallace, judge thereof. Writ denied.

Chas. G. Lamberson and Frank Lamberson, for petitioner. E. O. Larkin, for respondents.

SLOSS, J. Application for a writ of mandate requiring the superior court of Tulare county and the judge thereof to set a case for trial. An alternative writ having been granted, an answer was filed, and the proceeding is submitted upon the stipulation that the allegations of the answer are true.

It appears that an action, commenced by John Bashore, the petitioner herein, against B. B. Parker and Farmers' Union & Milling Company, a corporation, was pending in the superior court of Tulare county, and was set for trial for the 13th day of February, 1906. A jury trial having been demanded by plaintiff, a venire of 40 jurors was drawn for the trial of said cause, and 29 of the jurors were in attendance on the day set for the trial. On that day the plaintiff moved for a continuance, filing in support of his application an affidavit which was clearly insufficient, under section 595, Code Civ. Proc., as a showing requiring the court to grant the requested postponement. The judge of said superior court expressed his dissatisfaction with the showing made, and announced that he would order the trial of the case continued upon the conditions that plaintiff pay (1) defendants' costs incurred in preparing for the trial; (2) the expense of summoning the jury; and (3) the expense of one day's fees for 12 jurors. The clerk thereupon entered in the minutes of the court an order reading in part as follows: "It is ordered that the trial be postponed indefinitely, upon the following conditions: That said plaintiff pay to the clerk of this court the sum of $28.10, 91 P.-51

being the sheriff's fees for summoning the jury in this case; the sum of $24 for per diem of twelve jurymen, and the sum of $87.55, costs of defendants in preparing for trial. The plaintiff accepted said conditions, except as to the payment of the per diem of jurors, to which said plaintiff excepted." The court did not require the actual payment of these sums before discharging the jury and ordering the continuance.

The answer of the respondents contains certain allegations (admitted by the petitioner to be true) which are relied on as showing an express acceptance by the petitioner of all the conditions imposed by the court. For the purposes of this opinion, we shall assume that the acceptance was merely as shown by the minute entry, i. e., of all the items except as to the payment of the per diem of jurors. The plaintiff paid the sum of $87.55, the costs of defendants in preparing for trial, but has never paid either of the other items directed to be paid by him, viz., $28.10, sheriff's fees for summoning the jury, and $24, per diem of 12 jurymen. Upon plaintiff's moving the court to again set the action for trial, the court refused to do so, on the ground of the failure to comply with the conditions upon. which the continuance was granted. The purpose of this proceeding is to compel the superior court to set the case for trial, notwithstanding petitioner's failure to make payment of the items of $28.10 and $24.

The petitioner contends that these two items represent costs that he should not have been required to pay, and that, even if he was properly chargeable with them, the court by granting the postponement without actually requiring payment at the time had waived the conditions, or, at any rate, had lost the power to collect the amounts otherwise than by an execution. Code Civ. Proc. § 1007.

So far as concerns the item of $28.10, the sheriff's fees for summoning the jury, it is not open to petitioner on the record here presented to urge that the charge was not one that the court was authorized to impose. From the face of the order granting the continuance, it appears that the plaintiff accepted this condition as well as the one with which he has complied. Such acceptance was in effect an agreement to pay the sums upon obtaining the desired postponement. As to this item, he cannot, after agreeing that its payment be made a condition to the continuance, be heard to say that its imposition was beyond the power or discretion of the court.

And we think the other contention, viz., that after the continuance had once been granted without the payment of the costs imposed the duty to pay was waived or to be enforced in some way other than by refusing to set the case for trial, if sustainable at all, should not, under the circumstances here disclosed, be carried to the extent of compelling the court by mandamus to hear plaintiff's

case. The issuance of a writ of mandate lies to a considerable extent in the discretion of the court. Wiedwald v. Dodson, 95 Cal. 450, 30 Pac. 580. It will not issue where it It will not issue where it will work injustice, or produce confusion and disorder, or will operate harshly, or where it will not promote substantial justice. Board of Education v. Common Council, 128 Cal. 369, 60 Pac. 976. "A mandamus is only granted in the sound discretion of the court. This discretion is, of course, not a capricious or arbitrary exercise of the power of the court to refuse relief even in a proper case. Where, however, it appears that with reference to the very question at issue the conduct of the party applying for the writ has been such as to render it inequitable to grant him relief by mandamus the court may in the exercise of this discretion refuse the writ." People v. Jeroloman. 139 N. Y. 14, 34 N. E. 726. Here the issuance of the writ would not promote justice, but would operate to enable the petitioner to force a trial of his case at a time selected by him, while defying the court in its efforts to compel him to pay a sum which he had agreed to pay as a condition of its not being heard at an earlier time. A refusal of the writ will have no other effect than to compel the petitioner to pay what he had agreed to pay. It is eminently just and proper that he should do this. If the court, at the time when plaintiff applied for the continuance, had refused to grant it unless the required payments were then and there made. the plaintiff could not have obtained his continuance without meeting the conditions. stead of exacting payment at the time, the court relied upon plaintiff's acceptance of the conditions and granted the continuance without enforcing immediate compliance. To issue the mandate sought by the petitioner would enable him to use the indulgence allowed him by the court as a means of escaping altogether his obligations voluntarily sumed.

Until the petitioner pays the item of $28.10, which he agreed to pay, he is not in a position to ask this court to compel the trial court to hear his cause. We are not here deciding that noncompliance with a condition not assented to by a party moving for a continuance would deprive such party of the right to compel the court to set his case for trial. It is needless, therefore, to discuss the effect of plaintiff's failure to pay the item of $24 per diem for 12 jurors. It is enough, for the purposes of this proceeding, to say that this application does not commend itself to our discretion, made, as it is, by a plaintiff. who, after agreeing to some of the conditions on which a continuance was granted, refuses to comply even with those to which he had assented.

The proceeding is dismissed.

We concur: BEATTY. C. J.: SHAW, J.; LORIGAN, J.; HENSHAW, J.; McFARLAND. J.

(151 Cal. 29)

REEVE V. COLUSA GAS & ELECTRIC CO. (Sac. 1,128.)

(Supreme Court of California. April 4, 1997.) COURTS-RULES OF DECISION-EFFECT OF REVERSAL.

Where the result of the vacation of an order granting a rehearing would be to bar all further consideration of the case by reason of the fact that the time for rehearing had passed, the ruling of the Supreme Court, wherein it was decided that a member of that court who had not participated in the determination of the appeal should participate in the determina. tion of the petition for rehearing, rather than the justice of a District Court of Appeal who had acted in his stead on the determination of the appeal, under the direct provision of the amendment of 1904 to section 4 of article 6 of the Constitution. will be deemed the law of the case, and the order, on motion to dismiss, must stand without inquiry into the merits.

In Bank. Appeal from Superior Court, Colusa County; H. M. Albery, Judge.

Action by Frank Reeve against the Colusa Gas & Electric Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Motion to vacate order for rehearing denied.

Garret W. McEnerney, W. B. Treadwell, Seth Wellington, J. W. Goad, and William M. Pierson, for appellant. Garber, Creswell & Garber, J. L. Geary, Jr., and Milton Shepardson, for respondent.

HENSHAW, J. The respondent moves the court to set aside an order granting a hearing, and for the issuance of a remittitur in accordance with the judgment of the court in bank, as heretofore made.

The case was first decided in department 2 upon an opinion reversing the judgment; Justices HENSHAW. MCFARLAND. and LORIGAN joining in the decision. A rehearing was granted by the court in bank, vacating the department decision. The case was then placed on the calendar for hearing before the court in bank. In the meantime, Justice SLOSS had become a member of the court, as successor to Justice VAN DYKE, deceased, but, having an interest in the defendant corporation, and deeming himself disqualified, he had declined to sit in the case. At the time the case came on for hearing in bank, Justice MCFARLAND was ill and unable to be present. In these circumstances, the court. in order to secure a full bench for the consideration of the case, availed itself of the provision of the amendment of 1904 to section 4 of article 6 of the Constitution, and, in accordance therewith, selected, from the justices of the District Court of Appeal, Justice COOPER to act in place of Justice SLOSS, and Justice IIARRISON to act in place of Justice MCFARLAND. The cause was then orally argued and submitted to the court in bank thus constituted, which, after due consideration, affirmed the judgment of the court below by a decision in which Justices SHAW, ANGELLOTTI, and HARRISON, and Chief Justice BEATTY

ing him from depositing money of the municipality in his custody with banks and banking corporations doing business in said city and county. A general demurrer to the complaint was sustained, and, plaintiff having declined to amend, judgment was given for defendant. 'This is an appeal by plaintiff from such judgment.

That a taxpayer may maintain an action to prevent such a deposit where the same is forbidden by law was held by this court in Yarnell v. City of Los Angeles et al., 87 Cal. 603, 25 Pac. 767, which was a similar action. It is not claimed that the complaint does not state a cause of action if the proposed act of the treasurer was opposed to the law relative to the keeping of municipal money applicable to the city and county of San Francisco.

Respondent bases his claim that his proposed action is authorized by law upon the provisions of an act of the Legislature of the state approved March 23, 1907 (St. 1907, p. 974, c. 522), providing for and regulating the deposit of county and municipal moneys in banks and banking corporations. This act provides that "all moneys belonging to any county or municipality within the state, may be deposited by any officer of such county or municipality having the legal custody of such county or municipal funds in any licensed national bank, or banks within this state, or in any bank, banks, or corporations authorized and licensed to do a banking business, and organized under the laws of this state," upon certain security furnished by the depositary in bonds of the United States, this state, or any county, municipality, or school district within the state, of a market value at least 10 per cent., in excess of the deposit, approved by the officer making the deposit and the district attorney. Under the act interest is to be paid by the depositary for the use of the money. The other provisions of the act are immaterial to the question before us. Such proposed disposition by the respondent of municipal money is, however, in terms prohibited by the provisions of the freeholders' charter of said city and county. That charter, adopted in the year 1899, provides: "The treasurer shall receive and safely keep all moneys which shall be paid into the treasury. He shall not lend, exchange, use, nor deposit the same, or any part thereof, to or with any bank, banker or person; nor pay out any part of such moneys, nor allow the same to pass out of his personal custody, except upon demands authorized by law or this charter, and after they shall have been approved by the auditor. Section 2, c. 3, art. 4 of the charter (St. 1899, p. 272, c. 2). (The italics are ours.) Section 3 of the same chapter provides with elaborate detail, for a joint custody safe, in which shall be kept the moneys of the city and county, behind two combination locks, neither of which alone will open the same, the treasurer alone to have knowledge of one combination, and the auditor alone to have knowledge of the other.

In this safe are to be kept all money of the city and county except such as may be required each day for the payment of demands against the treasurer, the estimated amount required daily for this purpose to be taken from the joint custody safe and kept in another safe. These charter provisions prohibiting certain uses of the municipal money, requiring the officers of the city and county to keep the same in their possession, and prescribing the manner in which they shall keep them, unquestionably relate purely to municipal affairs. This is not disputed by respondent. It is unnecessary to cite authorities to the well-settled proposition that under the "municipal affairs" amendment to section 6, art. 11, of the Constitution, adopted in the year 1896, provisions in a freeholders' charter of a municipality as to municipal affairs are paramount to any law enacted by the state Legislature, and that the Legislature is without power to enact any law infringing thereon. This general proposition is also admitted by respondent.

It is, of course, true, as urged by respondent, that the people of the state who by a provision of the Constitution have granted to freeholders' charter cities this immunity from legislative interference with charter provisions relative to municipal affairs may, in like manner, take away the same in whole or in part, and leave with the state Legisla ture the power to enact laws which would have the effect of suspending the force of any or all charter provisions. It is claimed by respondent that they have done this as to matters covered by the charter provisions hereinbefore referred to, and that consequently the Legislature was authorized to enact a law applicable to the city and county of San Francisco so far as this particular municipal affair is concerned. The constitutional provision relied on as accomplishing this result is section 161⁄2 of article 11, adopted November 6, 1906. It declares that "all money belonging to the state, or to any county or municipality within this state, may be deposited in any national bank or banks, within this state, or in any bank or banks organized under the laws of this state, in such manner and under such conditions as may be provided by law," under certain conditions as to amount and kind of security, amount of deposits, interest, etc. (The italics are ours.) It is in the italicized words that respondent finds the conferring of authority upon the state Legislature to enact a law authorizing officers of the municipality of the city and county of San Francisco to make the contemplated deposits of municipal moneys in the face of the express prohibitions in that regard contained in the charter.

We are satisfied that the constitutional provision referred to cannot reasonably be construed as accomplishing any such result. The sole object of the enactment is apparent from its language, considered in connection with the then condition of the law upon the

subject. It had been established by the declsion of this court in Yarnell v. City of Los Angeles, supra, that the deposit of public moneys of the city with any bank or private corporation, even when the freeholders' charter of the city in terms purported to authorize the same, was prohibited by certain provisions of the state Constitution. Under the views expressed in the opinion as to the effect of the then existing constitutional provisions, it was impossible, in the absence of an amendment to the Constitution in that regard, to make valid provision either in any general law of the state or in a freeholders' charter for any such deposit of public money's. It was intended by the constitutional enactment in question simply to remove the constitutional prohibition then existing, and authorize such provision to be made by the proper authority, subject to certain expressed limitations. The portion of section 16% that declares that public money may be deposited in certain banks is strictly permissive in character, and, standing alone, would afford no pretense for a claim that a city having the right to make its own provisions as to municipal affairs cannot provide that its own officers, shall retain the custody of its own moneys, and that the same shall not be deposited in any bank or loaned. The words, "in such manner and under such conditions as may be provided by law," following this provision, are simply a limitation upon the permission before given; the effect thereof being that such deposits may be made only in the Lanner and under the conditions provided by such laws as may properly be enacted in regard thereto. As to the state, any county, or any municipality organized under the general municipal corporation act, such laws providing for the deposit and the manner and conditions thereof may undoubtedly be enacted by the Legislature of the state. But, when we come to the matter of the safe keeping of the moneys of a municipality having a freeholders' charter, such charter, "the organic law" of the city (section 8, art. 11, Const.), so far as it speaks upon the matter at all, is, subject to the Constitution, the paramount law, and, except as provided in the Constitution, nothing contrary thereto can be "provided by law." In such a case the charter provision is the "law" referred to in the constitutional provision. The provision is not that the deposit may be made in such manner and under such conditions as may be provided by the Legislature, or by any particular kind of law, but is simply "as may be provided by law." The policy of the state as to the supremacy of the provisions of a freeholders' charter in municipal affairs is too well established to warrant the drawing of the inference from the language under consideration of any intention to authorize the state Legislature to make provision, contrary to provisions of the charter in that behalf, as to the manner in which the city and county of San

Francisco shall hold and manage its own moneys. Under the Constitution, as it now stands, that municipality undoubtedly has the right, if it so desires, to avail itself of the permission given by the state Constitution to deposit its moneys in banks, under the conditions and limitations expressed in the Constitution, but, as long as the provisions of the charter remain as they are, it is the expressed will of the people thereof that no such deposit shall be made, and that the officers of the municipality shall retain such money in their custody.

It follows from what has been said that the charter provisions control as to the matter under discussion, and forbid the proposed disposition of the municipal moneys.

The judgment of the superior court is reversed, and the cause remanded.

We concur: BEATTY, C. J.; SHAW, J.; SLOSS. J.; HENSHAW, J.; MCFARLAND, J.; LORIGAN, J.

(6 Cal. App. 215)

MURPHY v. BANTEL, Treasurer, et al. (Civ. 437.)

(Court of Appeal, First District, California. Aug. 13, 1907.)

PROHIBITION-ADEQUACY OF OTHER REMEDY.

Code Civ. Proc. § 1102, defines the writ of prohibition as a writ to arrest the proceedings of any tribunal, corporation, board, or person, when in excess of their jurisdiction. Section 1103 provides that the writ may be so issued in all cases where there is not a plain and adequate remedy at law. Held, on petition for a writ to prohibit the payment of a bill incurred by the elisor of the superior court and approved by the judge, that, even if the payment of such bill by the treasurer after its approval by the judge would be in excess of his jurisdiction, yet the remedy was not by writ of prohibition, but by injunction

[Ed. Note. For cases in point, see Cent. Dig. vol. 40. Prohibition, § 4.]

Petition by J. P. Murphy for a writ of prohibition against Charles A. Bantel, treasurer of the city and county of San Francisco, and others. Writ denied.

L. W. Lovey, for petitioner. W. H. H. Hart, for respondents.

COOPER, P. J. The petitioner as a taxpayer asks for a writ of prohibition directed to Charles A. Bantel, as treasurer of the city and county of San Francisco, to prohibit him from paying a bill incurred by one W. J. Biggy, elisor of the superior court, amounting to the sum of $1,092, for the care, custody, and maintenance of one Abraham Ruef for the month of July, 1907, which bill has been approved by Hon. Frank II. Dunne, one of the judges of the superior court of the city and county of San Francisco, and ordered paid by said judge.

The writ of prohibition arrests the proceedings of any tribunal, corporation, board, or person when such proceedings are without or