Constitution of California, Article six, section six, says: " The District Court shall have original jurisdiction in all cases in equity; also, in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars; and also in all criminal cases not otherwise provided for." (1 Hitt. Art. 178.)
Cases in Equity.--What are cases in equity? To ascertain this we must look to the jurisdiction of the High Court of Chancery in England. (People v. Davidson , 30 Cal. 390, 391.)
Article third, section two, of the Constitution of the United States says: " The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties," etc. (1 Hitt. Art. 26.)
Under this clause the construction is, that we must look to the common law to ascertain what are " cases in law and equity." (2 Story on Const., Art. 1645.)
Heads of equitable jurisdiction are:
First--Matters of trust and confidence, which involve (a) uses and trust, (b) administration of estates, (c) charities, (d) separate estates of married women, (e) mortgages.
Second--Infants and lunatics.
Third--Fraud, accident, or mistake.
Fourth--Cases where equity furnishes a more effectual remedy: (a, Delivery of specific chattels, (b) specific performance, (c) partners.
Fifth--Cases where remedy at law is difficult or hazardous: (a) Account, (b) set-off, (c) tithes, (d) dower, (e) partition, (f) conflicting boundaries.
Sixth--Toprevent a multiplicity of suits: (a) Suits to establish a general right, (b) suits to quiet title, (c) suits of interpleader.
Seventh--As to contribution between sureties.
Eighth--Its protective and preventive jurisdiction: (a) Injunctions, (b) receivers.
Ninth--Assistant jurisdiction: (a) Discovery, (b) production of documents, (c) perpetuation of testimony. (1 Spence's Equitable Jur. 431, 433.)
This proceeding comes under no head of equitable jurisprudence--" is not a case in equity."
Cases at Law.--These are divided by the Constitution of California into three classes:
(a) " Cases at law which involve the title or possession of real property."
(b) Cases at law which involve " the legality of any tax, impost, assessment, toll, or municipal fine."
(c) " All other cases in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars." That is, cases for money demands.
All Criminal Cases not Otherwise Provided for.--Under which one of these several clauses will the plaintiff bring this case?
Clearly, under the Constitution, the District Court had no jurisdiction of this case as acivil action.
This is not " a criminal case." The form and mode of proceeding is not criminal. The Act of 1853 speaks of it as governed by the rules of practice of District Courts in " civil cases." (Stats. 1853, p. 41, Sec. 6.)
This is a special statutory proceeding--one entirely unknown to the common law. At common law the mode of removal from office, or forfeiture of office, was by quo warranto or scire facias, at the suit of the King, or by indictment. (3 Blackstone Com. 263; 2 Chitty's Black. 201, 202; 7 Bacon's Abridg. 322.)
Of course, at common law, a writ of scire facias could be sued out by a private person, for certain purposes, but never to repeal letters patent, or remove from office. (2 Tidd's Practice, 1091.)
This is manifestly a special statutory proceeding; if so, what Court, according to the Constitution of California, is entitled to jurisdiction over it? Clearly the County Court, and only the County Court.
The Constitution of California, Article VI, section eight, says: " The County Courts shall have original jurisdiction of actions of forcible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance, and of all such special cases and proceedings as are not otherwise provided for; and also such criminal jurisdiction as the Legislature may prescribe." (1 Hittell, Art. 180.) The first Constitution of California provided: " The County Courts shall have such jurisdiction in cases arising in Justices' Courts, and in special cases, as the Legislature may prescribe, but shall have no original civil jurisdiction, except in such special cases." (Wood's Digest, 33.) This clause in the first Constitution of California is copied verbatim from the Constitution of New York. Our argument is much stronger under the amended Constitution of California than under its first Constitution.
Decisions as to special cases under old California Constitution: (1855.) (Parsons v. Tuolumne Water Co. , 5 Cal. 43, 44.) Special cases: " Such new cases as are the creation of statutes and proceedings, which are unknown to the general framework of Courts of common law and equity." (1859.) (Saunders v. Haynes , 13 Cal. 150, 151, 152, 155.) (1855.) (Kundolf v. Thalheimer, 2 Kernan, 595, 596, 597.) (1862.) (Ricks v. Reed , 19 Cal. 551, 572, 564.) This was the decision of the Courts when the amendmentto the Constitution was passed. That amendment made the argument still stronger.
The first Constitution said: " And in special cases, as the Legislature may prescribe." The second Constitution: " And of all such special cases and proceedings as are not otherwise provided for." That is, not otherwise provided for by this Constitution.
The statute of March 14th, 1853, has no application to the case made in the complaint.
This is a very crude statute. It was passed in the early days of California legislation; probably the creation of some member of the Legislature who had suffered from the high fees then allowed to Sheriffs, County Clerks, etc. Its general language applies to every office, whether State, district, city, or township. If we were to give to its general words full force, then the Governor and Supreme Judges could be summarily removed by any District Judge, under this statute, for neglect to perform any " judicial act," however insignificant.
Article four, section nineteen of Constitution of California, provides: " The Governor, Lieutenant Governor, Secretary of State, Controller, Treasurer, Attorney General, Surveyor General, Justices of the Supreme Court, and Judges of the District Courts, shall be liable to impeachment for any misdemeanor in office." (1 Hittell, Art. 131.) So that it will not do to give the general words of this statute full force.
Suppose a Coroner neglects to decently inter a dead body (1 Hittell, 744), is he, without request, liable to removal under this Act? The word refusal involves request. No request alleged here.
The usual writ to enforce the performance of official duty is a writ of mandamus (Practice Act, Secs. 466, 467), " to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." But what is a condition precedent to every mandamus? Why, always, that the performance has been requested and refused. (People v. Romero , 18 Cal. 91, 92; Crandall v. Amador County , 20 Cal. 75; Addison on Torts, 1067.)
Can a man lose his office for neglecting to perform some particular official act, yet to enforce performance by a command, mandamus requires as a condition precedent a distinct demand of the particular act which the party desires to have performed, and a refusal?
Is it possible that any general misfeasance, or malfeasance, or nonfeasance, are embraced by this Act--that it covers bribery, embezzlement, and conspiracy?
The plaintiff has not the legal capacity to sue in this action; said plaintiff is not the real party in interest; on the contrary, plaintiff has no interest. The people of the State of California are the real parties in interest. (Stat. March 14th, 1853, Sec. 4; Stats. 1853, p. 41.) " Whenever any complaint in writing, duly verified by the oath of any complainant." Lauren E. Crane is not a complainant. The legal idea of a complainant is not only one who complains, but. also, one who has a right to complain.
This is a civil action. Practice Act, Sec. 2: " In such action the party complaining shall be known as the plaintiff." Practice Act, Sec. 4: " Every action shall be prosecuted in the name of the real party in interest." Sec. 6 of Act 1853: " Rules of practice governing District Courts in civil cases shall be in force in all proceedings under this Act." (Stats. 1853, p. 41, Sec. 6.) Complainant is the term used in equity as a synonym for plaintiff. Generally plaintiff is used in our statutes, but sometimes complainant. Forcible Entry Act of 1850, Sec. 9: " On the trial the complainantshall only be required to show," etc.; Section 12: " In all cases of a verdict by the Justice or jury for the complainant," etc. (Stats. 1850, p. 426.) With us the complainant, or the plaintiff, is the real party in interest. If one man has been charged an illegal fee, can fifty men become complainants under this statute?
Lauren E. Crane has no rights to redress in this action. There is no allegation that the defendant ever extorted illegal fees from him, Crane, or that plaintiff ever refused or neglected to perform any official act, in the performance of which Crane had an interest, or which Crane had requested him to perform. (People v. Pacheco , 29 Cal. 210; Doolittle v. Supervisors Broom County , 18 N. Y., 4 Smith, 157; Roosevelt v. Draper , 23 N.Y. 323; People v. Halsey , 37 N.Y. 348; Linden v. Board of Supervisors, etc., ante, p. 6.)
OPINION By the Court:
The complaint here was filed in the District Court of the Nineteenth Judicial District by L.E. Crane, under the provisions of the Act of March, 1853, " to prevent extortion in office and enforce official duty." (Acts, 1853, p. 40.) It alleges that Marks holds the office of State Harbor Commissioner, and that he has neglected to perform the duties of his office--some sixteen specifications of such, his alleged neglect, being set forth. Upon demurrer filed by Marks, the Court below gave judgment dismissing the proceedings, and from this judgment this appeal is brought.
1. There can be no doubt that the case made by the complaint is one directly within the provisions of the Act of 1853 (p. 40). That Act was designed to afford a remedy of a summary character against officeholders who were guilty of extortion or of neglect in the performance of official duty, and the case of Marks is brought by the complaint within the latter category.
2. It is clear, too, that the Act of 1853 has not been repealed, but is still in force.
3. There is nothing, either, in the Act which requires that Crane, who preferred this complaint, should aver or prove that he is a party in interest in the strict sense, or has himself sustained any special damage by reason of the official neglect complained of. The purpose of the statute was the wholesome one of authorizing any person who would take the duty upon himself to institute an inquiry into the conduct of certain public officers in the manner pointed out. It is not the personal interest of the complainant which the statute regards, but the higher and more important interest of the people and the body politic in the honest and faithful discharge of official duties by public servants. The right of a private person to institute an inquiry into the conduct of officeholders under the Act in question may be said to be akin to the right of every elector to contest the claim of any person asserting himself to have been elected to office--to the nature and purpose of which latter we had occasion to refer in Minor v. Kidder , 43 Cal. 229.
The third section of the Act of 1853 is in the following words: " Sec. 3. The District Courts shall have jurisdiction of all cases arising under this Act."
It is claimed by the respondent that it was not competent to the Legislature to confer this jurisdiction upon those Courts. The argument in support of this proposition is rested by counsel upon the clauses of the Constitution by which the jurisdiction of the District Courts and of the County Courts are respectively defined, and it is thereupon claimed that this case is a special case or proceeding, and is, therefore, necessarily cognizable only in the latter Courts. But even if it were in itself such special case, it is also, as we have already seen, a special case, the jurisdiction over which has been otherwise provided for, and is, for that reason, not a case within the rightful jurisdiction of the County Court. In the eighth section of the sixth Article of the Constitution, defining the jurisdiction of the County Courts, it is provided that those Courts shall have jurisdiction " of all such special cases and proceedings as are not otherwise provided for," etc. It is, therefore, practically left to the legislative will to determine whether the jurisdiction over any given special case, or number of special cases, shall be vested in the County Court or some other Court, and in this instance the jurisdiction has been in express terms conferred on the District Court. But our judgment here proceeds upon grounds wholly apart from the consideration of whether the case in hand can be fairly brought within the definition of a special case or not. It is provided in substance in the Act of 1853 that any person holding any office in this State who shall neglect to perform his official duty according to law shall be deprived of his office. So far the Act is certainly only declaratory of the common law; for neglect of official duty amounted at common law to an impeachable misdemeanor in office, and, upon conviction, the officer might be removed. (1 Story on the Constitution, Sec. 800.) The Constitution of this State (Art. IV) undertook to distribute this power to remove public officers for misdemeanor in office--of which, as we have said, neglect of official duty was one. It, for this purpose, placed the Governor, Lieutenant Governor, Secretary of State, Controller, Treasurer, Attorney General, Surveyor General, Justices of the Supreme Court, and District Judges in one class, and placed all other civil officers in another class; it then provided that those of the first class should be liable to impeachment--(that is, to be accused by the Assembly and tried by the Senate) for any misdemeanor in office (Sec. 18), and that those of the second class should " be tried for misdemeanor in office in such manner as the Legislature may provide ." (Sec. 19.)
The Act of 1853 does provide how--in what manner--upon what procedure--in what Court--officers, not of the first class, shall be tried for that misdemeanor in office known at common law, and recognized in this statute as neglect of official duty. The power of the Legislature to enact such a statute (under the latter clause of Sec. 18) is plain--as obvious as is the power of the Assembly to prefer and that of the Senate to try articles of impeachment under the first clause of the same section.
The power to remove certain officers for misdemeanor in office is exercised only by the Assembly and Senate under the name of impeachment --the like power to remove all other officers under like circumstances and for like causes is to be exercised " in such manner as the Legislature may provide." (Sec. 19.) The power to provide the manner in which a delinquent is to be tried in the second case is on a footing with the power to directly remove the delinquent by the judgment of the Senate in the first case.
When, therefore, the Legislature, pursuant to this clause of the Constitution, conferred the power upon the District Courts to try the delinquents of the second class, the power of those Courts was not at all referable to the sixth article of the Constitution, defining the judicial power, and hence an argument against the jurisdiction of the Court, drawn from a consideration of that article, is of no more force than if addressed to the Senate upon a trial of impeachment. It is the exercise by the District Court of the power to remove from office, upon conviction had, which is in fact the power of impeachment, and is impeachment in every respect, except the mere form of procedure pursued.
The Assembly is not, indeed, the accuser, nor does the Senate try the accusation. The Legislature has substituted a private citizen, it may be, instead of the one, and the District Court in the place of the other. The substance of the judgment to be entered in case of conviction is prescribed, and the rules of practice governing in civil cases are to be applied, and the benefit of an appeal secured. These make up the manner in which the trial is to be had.
We, therefore, think that it was the duty of the Court below in this case to have entertained the proceedings against Marks; and its judgment must be reversed, and the cause remanded, with directions to overrule the demurrer, and for further proceedings.