Moore v. Municipal Court of Salinas Judicial Dist., Monterey County

• Decision Date: 22 May 1959
• Citation: 339 P.2d 196,170 Cal.App.2d 548
• Court: California Court of Appeals Court of Appeals
• Parties: E. F. MOORE, Appellant, v. MUNICIPAL COURT OF SALINAS JUDICIAL DISTRICT, COUNTY OF MONTEREY, State of California, Respondent. Civ. 18266.

Page 196

339 P.2d 196

170 Cal.App.2d 548

E. F. MOORE, Appellant, v. MUNICIPAL COURT OF SALINAS JUDICIAL DISTRICT, COUNTY OF MONTEREY, State of California, Respondent.

Civ. 18266.

District Court of Appeal, First District, Division 1, California.

May 22, 1959.

Louis C. Moore, Salinas, for appellant.

William H. Stoffers, County Counsel, Monterey County, John O. Thornberry, Deputy County Counsel, Salinas, for respondent.

TOBRINER, Justice.

This is an appeal from a denial by the Superior Court of Monterey County of a writ of prohibition, directed to the Municipal Court of the Salinas Judicial District, which would have ordered the municipal court to desist from proceeding in a criminal action on the ground of the unconstitutionality of the involved ordinance.

A criminal complaint charged appellant with violation of section 1(a) of the Salinas Rural Fire District Ordinance No. 1 in that 'defendant, within the boundaries of the Salinas Rural Fire District, did willfully burn a fire out of doors for the purpose of burning papers and trash and other inflammable materials in an unapproved incinerator without first having obtained a permit.' Appellant demurred on the grounds that the facts stated did not constitute a public offense and that the ordinance was unconstitutional. When the municipal court overruled appellant's demurrer, he petitioned the superior court for a writ of prohibition. The court granted an alternative writ but after hearing ordered the writ discharged, remanded the case to the municipal court for further proceedings, and denied a permanent writ on the dual grounds of the unavailability of the writ and the constitutionality of the regulation. The original charge is still pending in the municipal court, but the parties have stipulated that the trial be postponed until determination of the present appeal from the order of the superior court.

Thus the superior court refused the writ but proceeded to uphold the constitutionality of the questioned ordinance. If the first ruling is to stand, the basis of the second must collapse; the court must have precluded itself from inquiry into the merits by the procedural refusal of the writ. We therefore examine each issue independently.

That this is a proper case, however, for the remedy of a writ of prohibition is demonstrated by these considerations: (1) the lower tribunal has determined that it had jurisdiction of the matter and was about to proceed to exercise it; (2) appellant did not have available to him a plain, speedy and adequate remedy at law; (3) the constitutionality of the questioned ordinance raised a sufficiently vital question to merit decision.

Turning to the threshold question, respondent apparently relies upon the older and conservative decision, Fels v. Justice's Court, 1938, 28 Cal.App.2d 739, 83 P.2d 721, that the writ cannot issue because the lower tribunal's jurisdiction to determine its own jurisdiction is absolute and can be upset only upon appeal. However, the more recent applicable Supreme Court decision, Rescue Army v. Municipal Court, 1946, 28 Cal.2d 460, 171 P.2d 8, recognizes that while the lower tribunal has 'jurisdiction' to determine its own jurisdiction this does not preclude the remedy of prohibition, saying: 'When, however, the trial court has heard and determined the jurisdictional challenge, and has decided in favor of its own jurisdiction, and then proceeds to act, that is, to try the cause on its merits, * * * [i]t then may be properly claimed that a court without jurisdiction is purporting to exercise it. At this stage, jurisdiction to determine jurisdiction has been exercised, and the higher courts will, in an appropriate case, restrain the lower court from acting in excess of jurisdiction [citations].' 28 Cal.2d at pages 464-465, 171 P.2d at page 11; see also Glasser v. Municipal Court, 1938, 27 Cal.App.2d 455, 81 P.2d 260; 40 Cal.Jur.2d 132-34.

In the present case when petitioner demurred to the criminal complaint, charging violation of the allegedly unconstitutional ordinance, the muncipal court overruled the demurrer. To quote Rescue Army, supra, 'it is apparent that the court had decided in favor of its own jurisdiction and [was] proceeding to exercise it.' 28 Cal.2d at page 465, 171 P.2d at page 12. The municipal court would have tried the case. It was stopped only by the issuance by the superior court of an alternative writ. The underlying condition of Rescue Army for issuance of the writ was fulfilled.

The second issue poses the question whether petitioner had available to him a plain, speedy and adequate remedy at law. Code Civ.Proc. § 1103. It is true that appellant could have appealed to the appellate department of the superior court and that, historically, the older cases have held that such relief in itself precluded the issuance of the writ. See Powelson v. Lockwood, 82 Cal. 613, 23 P. 143; Simpson v. Police Court of City of Riverside, 160 Cal. 530, 117 P. 553. The most recent cases recognize that the requirement that a defendant in a criminal case stand trial by a court which acts without or in excess of its jurisdiction is an imposition of personal hardship upon the defendant and a futile expense to the public. (See the excellent analysis in 3 Witkin, California Procedure, 2513-14.) The burden becomes particularly acute in a situation in which the defendant must appeal to the appellate department of the superior court and he has no remedy of certiorari. See Rescue Army v. Municipal Court, supra, 28 Cal.2d 460, 465-466, 171 P.2d 8; Hampton v. Superior Court, 38 Cal.2d 652, 656, 242 P.2d 1; Hill v. Superior Court, 16 Cal.2d 527, 529, 106 P.2d 876; Carter v. Superior Court, 96 Cal.App.2d 388, 393, 215 P.2d 491; 40 Cal.Jur.2d 138-39.

Nor does the availability of a possible habeas corpus proceeding preclude the issuance of the writ. Two recent decisions compose the reasons why the court may entertain the issuance of the writ. In Alves v. Justice's Court, 148 Cal.App.2d 419, 306 P.2d 601, when petitioner was charged with a violation of a municipal curfew regulation he moved for dismissal on the ground of its unconstitutionality. The motion was denied; petitioner sought a writ of prohibition in the superior court which likewise was denied. Holding the ordinance unconstitutional, the District Court of Appeal stated as to the issue of prohibition: 'We know of no rule which would compel appellant to stand trial upon a complaint based on a void statute with the possibility of conviction of contributing to the delinquency of a minor and a fine of $1,000 or imprisonment in the county jail for two years, or both, and not be able to raise a question as to the constitutionality of ordinances under which he was compelled to go to trial until after his conviction.' 148 Cal.App.2d at page 425, 306 P.2d at page 609. While Dickenson v. Municipal Court, 1958, 162 Cal.App.2d 85, 328 P.2d 32, seemingly reaches an opposite conclusion in that the appellate court upholds the superior court in denying the writ on the ground of adequacy of remedy, the court proceeds to point out: 'It may also be reasonably inferred that where, as here, there are several complaints and charges, questions of fact may be involved and the defense of unconstitutionality of one section of the ordinance may be available as to some of the charges and not as to the others. These matters can be considered and decided during a trial or on an appeal.' Italics added; 162 Cal.App.2d at page 89, 328 P.2d at page 34. The instant case raises no questions of fact.

Following the more modern rule of Rescue Army, the Supreme Court in Hunter v. Justice's Court, 1950, 36 Cal.2d 315, 223 P.2d 465, approved the use of the remedy. Charged with violation of certain sections of the Public Resources Code, petitioner moved to dismiss the complaint upon the ground of their unconstitutionality. The justice's court denied the motion. Although the Supreme Court sustained the validity of the regulation, it held that submission to trial and appeal from an adverse judgment would not be an adequate remedy. While respondent attempts to distinguish Hunter upon the ground that denial of a motion to dismiss on the merits is not an appealable order, the overruling of the demurrer in the instant case is likewise not an appealable order (see Pen.Code, § 1466), and the decision applies.

Finally, the issuance of the writ is surely affected by the social vitality of the issue involved. Appellant properly points out that 'California is literally blanketed with districts of one kind and another, all concerned with the administration of this state's complex affairs, and requiring effective means of enforcing the rules and regulations promulgated by their boards of directors.' The issue as to whether the Salinas Rural Fire District and similar entities may enact and enforce rules and regulations carrying the sanction of misdemeanors is a question of such importance that it should be decided by an appellate court. Indeed, if the fire district may not enforce such regulations, there may ensue the 'multiplicity of void proceedings' which, according to Rescue Army, should be prevented. Supra, 28 Cal.2d 460, 467, 171 P.2d 8. On the other hand, if the fire district may properly enact such regulations the writ may simply be denied on the merits. See Gorbacheff v. Justice's Court, 31 Cal.2d 178, 187 P.2d 407.

The three considerations set out above, and particularly the third, combine to make this case a proper one for the remedy of the writ of prohibition: the lower tribunal had determined it had, and was about to exercise, jurisdiction; no plain, speedy and adequate remedy at law was available to petitioner; and the question of the constitutionality of the ordinance constituted an issue of wide social importance.

We proceed, then, to the question of the constitutionality of the legislation. Appellant raises three points which echo the classic attack made in this type of case: (1...