People v. Latimer , 160 Cal. 716 ( 1911 )

This is a proceeding in certiorari to review an order made by the respondent, discharging and dissolving an attachment against the person of E.L. Bickford issued in a contempt proceeding.

On August 7, 1909, the chairman of the board of supervisors of the county of Napa made and filed with the clerk of the superior court of said county, and presented to the Honorable H.T. Gesford, the judge of said superior court, a verified certificate of facts. That certificate showed that on August 5, 1909, the board of supervisors of said county, sitting as a board of equalization, had before it for consideration and action the matter of directing the assessor of said county to assess to one H.A. Crawford, a resident of said county, taxable property owned by said Crawford at 12 o'clock meridian on the first Monday in March, 1909, which had escaped taxation; that previously, and on the sixteenth day of July, 1909, the clerk of the said board of supervisors, upon the order of said board, sitting as a board of equalization, had notified the said Crawford by letter, postpaid, and deposited in the post-office at Napa, which was his place of residence, that said board would, on July 22, 1909, investigate the matter of directing the assessor of Napa County to assess to him any taxable property owned by him at 12 o'clock meridian on the first Monday in March, 1909, and which had escaped taxation; that the investigation of said matter was continued from time to time until August 5, 1909, when it was taken up by said board of equalization for action; that at the said time E.L. Bickford was duly sworn as a witness, and after testifying that he was the cashier of the First National Bank of Napa, and knew whether or not said H.A. Crawford had any money on deposit in said bank at 12 o'clock meridian on said first Monday of March, 1909, was asked the following question: "Did H.A. Crawford have any money on deposit in the First National Bank of Napa on the first Monday in March, 1909, at 12 o'clock meridian?" that said E.L. Bickford refused to answer said question, and thereupon the board, having determined that the question was proper and pertinent, directed the chairman of said board to require the witness to answer it; that the chairman of said board directed said witness to answer the question, but he again refused to do so; that the board thereupon unanimously declared that said witness be deemed in contempt for his refusal to answer, and directed the chairman of the board to report the facts to the judge of the superior court of Napa County, that such proceedings might be taken in said matter as required by law.

On the filing of said certificate with Judge Gesford, he issued an attachment directed to the sheriff, commanding him to attach the person of said E.L. Bickford forthwith and bring him before said judge; that thereafter and on August 7, 1909, the sheriff, under said attachment, brought said Bickford before said judge, and by stipulation of counsel the hearing was continued to August 10, 1909, to be taken up before respondent, judge of the superior court of Contra Costa County, sitting in the place and stead of said judge of the superior court of Napa County.

On August 10, 1909, the matter coming up before the respondent, Judge Latimer, counsel for Bickford moved to discharge the attachment on the ground: 1 that the board of equalization had no jurisdiction over said H.A. Crawford mentioned in the certificate of facts; 2 that at the time of the alleged contempt the duty of the board of equalization had expired by limitation of time; 3 that said board had no power to assess any taxable property to H.A. Crawford which might have escaped taxation, and 4 that the said board of equalization had no jurisdiction of E.L. Bickford by reason of the fact that he was an officer of a national bank.

No testimony or evidence was presented on the hearing. The motion was argued by counsel and submitted, and on August 12, 1909, an order was made by the respondent, Judge Latimer, that the attachment be dissolved and the said E.L. Bickford discharged.

Insisting that in making the order Judge Latimer exceeded his jurisdiction, this proceeding was instituted here to have such order reviewed and annulled, and such further order made as may be proper in the premises.

At the time the contempt proceedings came on for hearing in the superior court, the board of equalization had finally adjourned, it was no longer possible to receive any testimony from any one on the matters concerning which it had been sought to examine Bickford, and such matters had been definitely closed so far as such board was concerned.

We are of the opinion that we cannot disturb the action of the trial court. Assuming purely for the purpose of this decision that Bickford was guilty of contempt under the provision of section 4068 of the Political Code, and should have been so adjudged, the board of equalization having finally adjourned, he could not have been imprisoned until he answered the questions that had been propounded to him as a witness before said board, in other words, he could not have been imprisoned as a means to compel such answers, as would have been permissible had the board still been in session, and in a position to take action in the matter wherein his testimony was desired. The situation was such at the time of the hearing in the superior court, that any answers he might give would be of no value to any person. Nobody's rights could be affected thereby. The only penalty that it was possible for the trial court to impose was a fine or imprisonment for a stated period or both such fine and imprisonment, simply as a punishment, and not in any degree for the protection of the rights of any third party.

Whether or not under such circumstances a person charged with contempt shall be adjudged guilty thereof and punished therefor is a matter solely within the discretion of the court entertaining the contempt proceedings. The law does not authorize an appeal in such matters, and it is expressly provided in section 1222 of the Code of Civil Procedure, that "the judgment and orders of the court or judge, made in cases of contempt are final and conclusive." It is only when an order so made is in excess of the jurisdiction of the court making it that it may be annulled on certiorari. Even if we assume that the trial court erred in refusing to adjudge Bickford guilty of contempt, it cannot be held that it exceeded its jurisdiction in doing so. It simply erred while acting in the exercise of its jurisdiction. It has been held, as in Crocker v. Conrey, 140 Cal. 213, [73 P. 1006], that mandamus will lie at the suit of one beneficially interested to compel a court to employ the process of contempt against a witness to compel him to answer such questions, where such answers when given will be available to such party in a pending proceeding. Likewise, doubtless,mandamus will lie to compel such action on the part of a court to compel compliance with an order requiring the payment of alimony when the party is financially able to so comply, or in any case where compliance with an order is essential for the protection of the beneficial rights of the petitioner. But except when there is some party beneficially interested in having the particular act constituting a contempt performed, the dismissal by a court or judge of a contempt proceeding is final and conclusive, and beyond review by any other tribunal. It cannot be held that there is in this matter any party so beneficially interested.

It follows that the order of the superior court must be affirmed, and it is so ordered.