17 Cal.2d 280, 16357, Abelleira v. District Court of Appeal

Docket Nº:16357
Citation:17 Cal.2d 280, 109 P.2d 942
Opinion Judge:[12] Gibson
Party Name:Abelleira v. District Court of Appeal
Attorney:[7] Gladstein, Grossman, Margolis & Sawyer, Richard Gladstein, Ben Margolis and George Olshausen for Petitioners. [8] Robert W. Kenny, as Amicus Curiae, on behalf of Petitioners. [9] Earl Warren, Attorney-General, and John J. Dailey, Deputy Attorney-General, for Respondents. [10] Maurice P. McCaf...
Case Date:February 07, 1941
Court:Supreme Court of California

Page 280

17 Cal.2d 280

109 P.2d 942

FRANK ABELLEIRA et al., Petitioners,



MATSON NAVIGATION COMPANY (a Corporation) et al., Interveners.

S. F. No. 16357.

Supreme Court of California

February 7, 1941

In Bank.

Page 281

[Copyrighted Material Omitted]

Page 282


[109 P.2d 943] Gladstein, Grossman, Margolis &amp Sawyer, Richard Gladstein, Ben Margolis and George Olshausen for Petitioners. Robert W. Kenny, as Amicus Curiae, on behalf of Petitioners. Earl Warren, Attorney-General, and John J. Dailey, Deputy Attorney- General, for Respondents. Maurice P. McCaffrey, Glenn V. Walls, Webster V. Clark, Rogers &amp Clark, Milton Marks, J. M. Mannon, Jr., Edwin S. Pillsbury, George O. Bahrs, and McCutchen, Olney, Mannon &amp Greene, as Amici Curiae, on behalf of Respondents. Brobeck, Phleger &amp Harrison, Gregory A. Harrison and Richard H. Ernst for Interveners.

Page 283


[109 P.2d 944] GIBSON, C.J.

Upon rehearing of this case, we adopt our prior opinion with certain minor modifications, as follows:

This is a petition for a writ of prohibition, to restrain the respondent District Court of Appeal from taking any steps toward the enforcement of a writ of mandate and temporary restraining order heretofore issued by that court and directed against the California Employment Commission. For convenience, the term "petitioners" will be used to refer to those who seek the writ of prohibition in the present proceeding; the term "respondent" will refer to the District Court of Appeal; and the term "employers" will be used to refer to those employers who sought and obtained the writ of mandate and restraining order from the District Court of Appeal, as well as to other employers represented by counsel participating in the argument as amici curiae.

Petitioners are individual longshoremen ordinarily employed in the harbor of San Francisco and numbering about five thousand persons. As such workmen they are subject to the provisions of the California [109 P.2d 945] Unemployment Insurance Act. (Stats. 1935, chap. 352, as amended; Deering's General Laws, Act 8780d; Deering's 1939 Supplement, p. 1697.) Under the act a percentage of their earnings is deducted and paid into the unemployment fund, and this money, together with contributions from employers, is used to pay benefits to unemployed workers. The act is administered by a board known as the California Employment Commission, with powers usual to such commissions, including authority to adopt rules and regulations. (Sec. 90.) The procedure established by the act as it read at the time of this controversy is as follows: Application is made by an unemployed workman and notice thereof is sent to the employer. An initial determination is made by the adjustment unit, which is the lower tribunal. Notice of this determination and its reasons is sent to the applicant and the employers. If payment is ordered, any employer whose reserve account is affected by the payment may intervene and appeal, and payment will be stayed pending said appeal. (Sec. 67.) A referee is appointed by the commission to hear the appeal, which is conducted in the manner usual to such commission hearings, full opportunity being accorded to produce evidence and examine witnesses.

Page 284

(Secs. 67-71.) The referee makes written findings and a decision which, unless further appeal is taken, becomes final; but appeal lies to the commission. (Secs. 67, 68, 72.) This appeal is heard on the record and on any additional evidence produced; oral or written argument may be permitted; and the commission thereafter makes its findings of fact and decision. The commission may also transfer to itself proceedings on any claim pending before the referee, thus affording in some cases an opportunity to expedite a decision by the commission itself. (Sec. 72.) Section 67 contains a provision reading as follows: "If a referee affirms an initial determination allowing benefits, such benefits shall be paid regardless of any appeal which may thereafter be taken, but if such determination is finally reversed no employer's account shall be charged with benefits so paid as to each such determination so reversed." The importance of this provision will hereinafter appear.

During October and November, 1939, widespread unemployment occurred among petitioners. On or about November 10, 1939, they registered for work and made claim for unemployment benefits in accordance with the requirements of the statute. An initial determination was made by the adjustment unit that they were entitled to the benefits, and the employers, intervening, appealed from this determination. A hearing was had before a referee; considerable evidence was introduced and argument heard, following which written briefs were filed. On December 15, 1939, the referee made his decision affirming the initial determination.

On December 16, 1939, the employers applied to the District Court of Appeal, Third Appellate District, for a writ of mandate and other incidental relief, in a proceeding entitled "Matson Navigation Company v. California Employment Commission". The employers objected to payment of the benefits on the ground that petitioners left work "because of a trade dispute", which, under section 56 of the act, disqualifies employees from receiving unemployment benefits. In their application for mandate the employers also alleged that they intend to and will appeal to the commission; that they have not further exhausted their remedies before the commission because the proposed payment of benefits would violate the act; that in prior decisions the commission has indicated its position against the employers on the issue raised

Page 285

and would decide against them; and that the unemployment fund would be seriously damaged by the allegedly unlawful payments contemplated in this case.

The District Court of Appeal issued an alternative writ of mandate and a temporary restraining order directed to the commission to withhold payment of unemployment benefits. The writ states that "any such payments which may be made ... are in violation of the provisions of the Unemployment Insurance Act", and orders the commission to refuse to pay as long as the asserted trade dispute is in progress, or to appear and show cause before the court why it has not done so. The restraining order was issued to enforce compliance with the mandate pending a final hearing on the alternative writ. The writ and restraining order having been issued ex parte, petitioners on December 18, 1939, made a motion to dissolve. The motion was argued, but the court submitted it without making any decision thereon at that time.

Subsequently, on December 22, 1939, the employers filed an appeal from the decision [109 P.2d 946] of the referee to the commission itself, which appeal is now pending.

On or about December 26, 1939, petitioners applied to this court for a writ of prohibition. On January 5, 1940, we issued an alternative writ. The matter was heard and is here on briefs of counsel, together with a number of additional briefs of amici curiae representing the commission, other employers and parties interested generally in the issues of the case.

The theory upon which the District Court of Appeal acted in issuing the writ of mandate clearly appears from the petition, the writ, and the briefs of counsel. The court, in ordering the commission to cease paying benefits, was undoubtedly of the belief that the commission was acting beyond its statutory powers, and consequently was without jurisdiction to make the payments in question. This is expressly asserted by certain amici curiae appearing for the employers.

The theory upon which the writ of prohibition was sought is that the District Court of Appeal had no jurisdiction to issue the writ of mandate prior to completion of the administrative proceedings, and that petitioners had no plain, speedy or adequate remedy otherwise. (See Code Civ. Proc., sec. 1103, and authorities discussed infra.)

Page 286

It must be understood at the outset that the merits of the controversy between the original parties, involving the interpretation of the "labor dispute" proviso in the Unemployment Insurance Act, are not before us. The important question is not what should be the decision on that point, but rather how the decision should be made. In the normal course the commission would make it, and thereafter judicial review, if appropriate, might be sought by either employers or employees. (See Bodinson Mfg. Co. v. California Employment Commission, Sac. No. 5407, this day decided, post, p. 321 [109 P.2d 935].) The employers, in departing from this normal procedure, and asking for a judicial review before completion of the administrative proceeding, rely upon assumptions of fact not supported by any record in this court. They seek to justify their action by charging that the determination in favor of petitioners is in violation of the law. But there has not, as yet, been any such final determination by the commission. That body has power to review the evidence previously presented before the referee, and also to take new evidence and make new findings, approving or disapproving those of the referee. It has not yet determined the facts upon which the right to benefits depends, and until it does so, it is improper for a reviewing court to consider the claims on their merits. The issue actually before us does not concern the rights of petitioners or their employers, nor the scope of the Unemployment Insurance Act. These matters were properly before the court and were decided in the Bodinson Mfg. Co. case, supra. The question here is whether boards and commissions, charged with the administration of a statute, may carry on their administrative proceedings to completion before being subjected to judicial...

To continue reading