author: THE COURT. LANGDON, J., Dissenting. SEAWELL, J., Concurring in Dissent.

text:
    [L. A. No. 16753.
    In Bank.
    May 6, 1939.]
    THE SPECIAL ASSEMBLY INTERIM COMMITTEE ON PUBLIC MORALS OF THE CALIFORNIA LEGISLATURE, Appellant, v. HARRY A. SOUTHARD et al., Respondents.

      Fred B. Wood, George W. Wakefield, Arthur McHenry and Norris J. Burke for Appellant.
    Melvyn I. Cronin, as Amicus Curiae, on Behalf of Appellant.
    George W. Rochester for Respondents.
   THE COURT.

A rehearing was granted in this matter in order that a reexamination of the law applicable thereto might be made in the light of further arguments advanced in the petition for rehearing. Such reexamination has convinced us that to announce a contrary conclusion would be in disregard of established law on the subject in this and other jurisdictions, and that we would not be justified in taking such a course. The power here sought to be exercised by a single house of the legislature has uniformly been denied whenever it has been questioned. The fact that interim committees have been appointed by single house resolutions and have heretofore carried on without objection is beside the point. Their authority is now vigorously attacked in this proceeding. The problem is not one of a restrictive or liberal construction of the law applicable to the powers of the legislature. A single house is not the legislature. The decision herein does not prevent the appointment of interim committees to investigate and report to the next legislature. It is clearly pointed out that they may be appointed pursuant to a statute duly adopted. Assuming that their appointment be desirable., no good reason has been advanced why they should not be appointed by following that orderly and authorized course. Service of a legislator on such a committee would in nowise be in violation of section 19 of article IV of the Constitution prohibiting members of the legislature from occupying any other “office, trust or employment”. We feel impelled to adhere to the conclusion heretofore reached and in doing so adopt the former opinion as the opinion of the court on rehearing, as follows:

“This appeal presents for determination the question whether the state assembly by single house resolution during a regular session of the legislature may lawfully create an investigating fact finding committee with power to function after the adjournment of the legislature sine die.
“The assembly, at the fifty-second session of the legislature, while the legislature was in session, in May, 1937, passed house resolution No. 171. This resolution recites that in the past the assembly has customarily adopted resolutions creating interim committees to study and investigate problems of public concern; that these committees in the past have developed facts and information valuable to the assembly in proposing legislation; that it appears desirable that such committees be consolidated for better efficiency and for reasons of economy ‘so that they may better study upon a broader scope the various problems of governmental concern to the end that these committees may determine upon desirable changes in, or additions to, the statutory laws of the State of California, and to recommend such changes and additions to the fifty-third session of the legislature thereby rendering a valuable legislative service to the people of the State of California’. The resolution then created 10 interim committees, including appellant, the Assembly Interim Committee on Public Morals, and in addition created a special coordinating committee with power generally to supervise the work of the various committees and with power to control the expenditures of such committees. In reference to the committee here involved the resolution provides: ‘That there are hereby created certain Assembly committees to function during the interim between the fifty-second and fifty-third sessions of the Legislature . . . to wit: . . .
“ (8) Assembly Interim Committee on Public Morals, to consist of seven (7) members, which committee is authorized and directed to study and investigate all matters and things pertaining to existing or proposed laws of this State and its political subdivisions, with reference to all matters of public morality, including alcoholic beverages, gambling, vice of all kinds, wrestling and boxing matches, horse racing, dog racing and matters of a similar nature, and the administration of such existing laws. ’
“The resolution further provided that ‘the sum of twenty-five thousand dollars ($25000) is hereby appropriated and set aside from the contingent fund of the Assembly, for the purpose of paying the expenses of the committees created by this resolution, including costs of any records and transcripts, and an allowance of $8 per day (in lieu of expenses for living accommodations and meals) and 5½ cents per mile each way, incurred in connection with the powers granted and duties imposed by this resolution . . . Bach of the committees was ‘authorized and empowered to summon and subpoena witnesses, require the production of papers, books, accounts, reports, documents, records and papers of every kind and description, to issue subpoenas and to take all necessary means to compel the attendance of witnesses and to procure testimony’. The resolution also authorized the members of such committees to administer oaths, and the pertinent provisions of the Political Code relating to the attendance and examination of witnesses before the legislature and its committees were made applicable to proceedings before each of the newly created committees.
“The fifty-second session of the legislature adjourned sine die on May 28, 1937.
“The committee here involved called a meeting of its membership to be held in Los Angeles on February 7, 1938, ‘for the purpose of determining whether vice and crime in the State of California, and more particularly in the city and county of Los Angeles was so widespread and notorious as to require additional legislation for its control and suppression ’. The committee met at the time and place specified, and thereupon proceeded to administer the oath and question the 1,1 respondents who had been subpoenaed and who were then in attendance. It is not disputed that all of the proceedings up to this point were regular in all respects, if the committee itself had lawful existence. To each of the respondent witnesses certain questions dealing with his supposed knowledge or connection with vice conditions in Los Angeles were propounded. The witnesses refused to answer these questions on the ground the committee had no lawful existence. Thereafter, purporting to act under section 302 of the Political Code, the committee caused to be filed in the Los Angeles superior court a petition to compel the giving of testimony. Section 302, supra, as amended in 1937, purports to confer on the superior court power to compel the giving of testimony before such committees when the legislature is not in session. The trial court issued to each of the respondents its order to show cause. On the return date each of the recalcitrant witnesses appeared in person and by counsel, but filed no written appearance or pleading. The trial court, after a hearing and argument, held that it had no power to compel respondents to answer the questions for two reasons:
“1. That the committee was not lawfully created, in that the assembly is without power to create a committee by a single house resolution with authority to sit after adjournment sine die; and;
“2. That even if lawfully constituted, as to many of the questions, the committee had exceeded its inquisitorial powers.
“The trial court thereupon entered its judgment discharging the order to show cause, denying the petition, and dismissing the cause. Prom this judgment (and as well from the opinion and minute order of the trial court) the committee has appealed.
“The cause has been exhaustively and ably briefed by both appellant and respondents. As already indicated, the main question presented on this appeal is whether the assembly may lawfully create an investigating committee by single house resolution with power to sit after the legislature has adjourned sine die. On behalf of appellant it is urged that the legislature is a continuing body; that incidental and auxiliary to the lawmaking power is the power to appoint committees for the purpose of investigation; that this power is necessarily implied from the express powers conferred on the legislature by the Constitution; that this implied power exists not only during legislative sessions but also during the interim between sessions; that from a practical standpoint this power must exist because during the sessions time is not available to properly consider the need for changes in the law; that this power has been exercised by the legislature of this state for many years, and that this constitutes a practical construction of the constitutional power of the legislature. Respondents, while conceding that the legislature possesses the implied power to appoint investigating committees to act during the session, contends that no such implied power exists to appoint a committee to act after the session has been adjourned sine die.
“The parties concede that there is no provision of the Constitution expressly conferring or denying the challenged power, but both refer to certain provisions which it is contended impliedly support their respective positions. The more important provisions referred to are article III, section 1, which contains the so-called separation of powers provision; article IV, section 1, which provides that ‘The legislative power of the state shall be vested in a Senate and Assembly which shall be designated “The Legislature of the State of California . . . ” ’; article IV, section 2, which provides ‘The sessions of the Legislature shall be biennial, unless the governor shall, in the interim, convene the Legislature, by proclamation, in extraordinary session. All sessions, other than extraordinary, shall commence at 12 o’clock m., on the first Monday after the first day of January next succeeding the election of its members, and shall continue in session for a period not exceeding thirty days thereafter; whereupon a recess of both houses must be taken for not less than thirty days . . . ’; article IV, section 3, provides that the members of the assembly shall be chosen biennially each even numbered year for two year terms; article IV, sections 4 and 5, provide that senators shall be chosen for four-year terms at the same time and places as members of the assembly; that the senate shall consist of 40 members elected from 40 senatorial districts ; that the seats of 20 senators shall be vacated each two-year period, so that one-half of the senators shall be elected every two years; article IV, section 15, provides that ‘No law shall be passed except by bill . . . any bill may originate in either house’; article IV, section 23, provides that ‘The members of the Legislature shall receive for their services the sum of one hundred dollars each for each month of the term for which they are elected, to be paid monthly in the even-numbered years, and to be paid during the regular legislative session in the odd-numbered years at such times as may be provided by law’; article V, section 9, provides that the governor ‘may, on extraordinary occasions, convene the Legislature by proclamation, stating the purposes for which he has convened it, and when so convened it shall have no power to legislate on any subjects other than those specified in the proclamation, but may provide for the expenses of the session, and other matters incidental thereto’.

“ Under these constitutional provisions it is obvious that the major function of the legislature is that of enacting legislation. This power is expressly conferred by the Constitution. This power necessarily presupposes that the members of each house of the legislature must investigate the necessity for legislation. It is impractical that the entire membership should participate in such preliminary investigation. Consequently, it is well settled by practice and decision, that incidental and auxiliary to the express power conferred, the legislature and each house thereof has the inherent and implied power to appoint committees for the purpose of obtaining information concerning proposed legislation, and reporting back their findings to the body appointing them. From a practical standpoint this implied power must exist in order that the legislature may properly discharge its functions. It is equally well settled that such committees with power to sit during a session or during the constitutional recess between sessions, may be appointed by single house or concurrent resolution. (In re Battelle, 207 Cal. 227 [277 Pac. 725, 65 A. L. R 1497]; Ex parte Lawrence, 116 Cal. 298 [48 Pac. 124]; Ex parte McCarthy, 29 Cal. 395; Fergus v. Russel, 270 Ill. 304 [110 N. E. 130, Ann. Cas. 1916B, 1120]; Dickinson v. Johnson, 117 Ark. 582 [176 S. W. 116, Ann. Cas. 1916B, 1067, L. R A. 1915E, 496].) In the Battelle case, supra, the investigating committee was appointed by a single house resolution, and the committee was authorized to and did sit during the constitutional recess required under article IV, section 2, supra. The power of the senate to create the committee by single house resolution and the power of the committee to sit and to require the attendance of witnesses, the production of books, and to prosecute for contempt was fully vindicated. All of these cases and others that could be cited, however, simply hold that either by single house or concurrent resolution, the legislature may appoint committees and delegate to them the power of investigation, with the duty of reporting back to the body that appointed them. That is not the problem involved in the instant case. Here the legislature, after the assembly had appointed the appellant committee, adjourned sine die in May of 1937. The resolution creating the committee purported to authorize the committee to sit after such adjournment, and to report back, not to the body that had appointed it, but to a new body, the thereafter to be elected assembly of the fifty-third session. The overwhelming weight of authority is to the effect that neither house of a legislature may lawfully appoint a committee by single house resolution with power to sit after adjournment sine die, in fact, every state court that has considered this problem has so held. (Tipton v. Parker, 71 Ark. 193 [74 S. W. 298] ; State v. Guilbert, 75 Ohio St. 1 [78 N. E. 931]; Ex parte Caldwell, 61 W. Va. 49 [55 S. E. 910, 11 Ann. Cas. 646, 10 L. R. A. (N. S.) 172] ; Commonwealth v. Costello, 21 Pa. Dist. Rep. 232; State v. Childers, 90 Okl. 11 [215 Pac. 773]; Brown v. Brancato, 321 Pa. 54 [184 Atl. 89].) The only ease holding to the contrary is McGrain v. Daugherty, 273 U. S. 135 [47 Sup. Ct. 319, 71 L. Ed. 580, 50 A. L. R. 1], a case hereafter discussed.

“The theory of the above-cited eases holding that a single house resolution cannot lawfully create a legislative investigating committee with power to sit after the legislature adjourns sine die seems to us to be unanswerable. Although Stated in different ways, it is basically this: Under the various state constitutions, including that of California, the legislature, with the approval of the governor, has the power to legislate—that is the power to make laws; each house of the legislature has the power to initiate legislation; incidental to and implied from this power to legislate, each house has the implied and auxiliary power to appoint committees for the purpose of aiding it in the proper performance of this function; this power to appoint committees exists by implication, only because of the existence of the express power to legislate; consequently, when the power to legislate ceases, then the power to investigate for the purpose of aiding the legislature in exercising this power ceases, or stated another .way, when the main power of legislating dies the incidental or implied power dies with it; that upon adjournment sine die the legislative powers of both houses of the legislature cease; that thereafter the members of the legislature have no legislative powers unless a special session is called which can only be done at the call of the governor, and at which only those matters set forth in the call, may be considered; that during a session each house can function separately as to the introduction of bills, but it has no such power after adjournment; that each regular session of the legislature is composed of a different body from its predecessor; that the only lawful purpose of a committee is to investigate the facts and to report back to the body creating it; that the power conferred on a committee is a delegated power, and the legislature cannot lawfully delegate power that it itself does not possess; that neither house has the power to appoint a committee to function when the legislature itself could not act in the premises.

“These principles were succinctly summarized in Ex parte Caldwell, supra. After pointing out that upon adjournment the power of each branch of the legislature as far as its power to legislate is concerned ceases, the West Virginia court stated (p. 911) : ‘When the powers of one branch are ended, the powers of the other branch are ended. If we give effect after adjournment to the mere resolution of one branch, it is in effect the continued power of that single branch. If the powers of that branch are at an end, the powers of a committee appointed by it are also at an end. The limb cannot exist after the body has perished. The agent or deputy cannot act after his principal is extinct. If the branch cannot act, how can a committee act deriving its life from the branch V

“In Tipton v. Parker, supra, the Supreme Court of Arkansas summarized its conclusions as follows (p. 298) ‘The Senate has no power by resolution of its own to extend its session, and neither did it have power by such separate resolution to continue its committee, a mere agency of the body, beyond the term of the body itself which created it. Bach house, says Judge Cooley, must also be allowed to proceed in its own way in the collection of such information as may seem important to a proper discharge of its functions; and, whenever it is deemed desirable that witnesses should be examined, the power and the authority to do so is very properly referred to a committee, with any such powers short of final legislative or judicial action as may seem necessary or expedient in the particular case. Such a committee has no authority to sit during a recess of the house which has appointed it, without its permission to that effect. But the house is at liberty to confer such authority if it sees fit. The recess here referred to by Judge Cooley we think should be construed to mean only the intermission between sittings of the same body at its regular or adjourned session, and not to the interval between the final adjournment of one body and the convening of another at the next regular session. When applied to a legislative body, it means a temporary dismissal, and not an adjournment sine die. (Cen. Dic. verbo “Recess”; Cooley, Con. Lim. 161.) The committee, being the mere agency of the body which appointed it, dies when the body itself dies, unless it is continued by law, and it is not within the power of either house of the General Assembly to separately enact a law or pass a resolution having the force and effect of a law. To do this requires a majority of each house voting in its favor. (Art. V, sec. 23, Const.) The only legitimate office, power, or duty of a committee of the Senate, in the absence of a law prescribing other functions and duties, is to furnish the Senate which appointed it, with information, and to aid it in the discharge of its duties. The Senate alone has no power to appoint a committee to make an investigation after its adjournment, and to make a report to another department of the government, or to another session of the Senate or General Assembly. (Ordronaux on Const. Leg., p. 375.) Each session of the Senate is separate and distinct from every other session, and is generally composed of different members. ’

“As already indicated the only case contrary to those above cited is McGrain v. Daugherty, supra. In that case the United States Supreme Court, without reference to the eases holding to the contrary, held that the United States Senate lawfully by resolution could create a legislative committee with power to sit after the adjournment of Congress. The court held that probably the House of Representatives cannot appoint a committee with power to sit after adjournment because its members, like the California Assembly, are all elected for the period of a single session, but that the senate ‘is a continuing body whose members are elected for a term of six years and so divided into classes that the seats of one-third only become vacant at the end of each Congress, two-thirds always continuing into the next Congress

“Whatever may be the rule as to the United States Congress, it is quite clear that in this state the legislature is not a continuing body—each session is composed of a new body, separate from its predecessor, all of the members of the assembly and one-half of the members of the senate being newly elected for each regular session. In French v. Senate, 146 Cal. 604 [80 Pac. 1031, 2 Ann. Cas. 756, 69 L. R. A. 556], the petitioners sought mandate to compel the state senate to admit them as members. They had been expelled by that body. This court refused to entertain jurisdiction on the ground that (p. 607) : ‘The thirty-sixth session of the legislature has adjourned sine die; it is a thing past, and cannot be reconvened upon the mandate of the judicial power. (Const., art. III.) The senate could not reinstate the petitioners as members of that session except when lawfully in session. Nor can the body which composed the thirty-sixth session be again called together except in special session and at the behest of the governor. (Const., art. IV, sec. 2; art. V, sec. 9.) The next regular session of the senate will be composed of different persons and will be a different body from that now supposed to be before the court.’ The same principle was enunciated by the Supreme Court of the United States in Anderson v. Dunn, 19 U. S. 204, 230 [5 L. Ed. 242], when it stated: ‘ . . . although the legislative power continues perpetual, the legislative body ceases to exist, on the moment of its adjournment or periodical dissolution’.

“Appellant refers to several cases holding that by concurrent resolution the legislature may lawfully create a committee with power to sit after adjournment. (Sullivan v. Hill, 73 W. Va. 49 [79 S. E. 670, Ann. Cas. 1916B, 1115] ; People v. Backer, 113 Misc. 400 [185 N. Y. Supp. 459] ; People v. Hofstader, 258 N. Y. 425 [180 N. E. 106, 79 A. L. R. 1208]; Terrell v. King, 118 Tex. 237 [14 S. W. (2d) 786].) On this subject there is a conflict in the authorities. Several well-reasoned cases hold that the legislature by joint resolution cannot create a committee with power to sit after adjournment-—that such committee can only be created by statute. (Dickinson v. Johnson, 117 Ark. 582 [176 S. W. 116, Ann. Cas. 1916B, 1067, L. R. A. 1915E, 496]; Fergus v. Russel, 270 Ill. 304 [110 N. E. 130, Ann. Cas. 1916B, 1120] ; Ex parte Hague, 105 N. J. Eq. 134 [147 Atl. 220]; aff. on other grounds, 9 N. J. Misc. 89 [150 Atl. 322].) Several of these eases last cited discuss the eases holding to the contrary and point out that in several of the jurisdictions approving the power to create such committees by joint resolutions there is no distinction between joint resolutions and statutes, both requiring the signature of the governor. The validity of concurrent resolutions in this respect in this state is more directly involved in the companion case of Swing v. Riley, S. F. No. 16035, this day decided (post, p. 513 [90 Pac. (2d) 313]), and is fully discussed therein. For the purposes of the present opinion, suffice it to say that the concurrent resolution eases are not authority for the validity of a single house resolution and even if they were, it is our opinion that the last cited cases holding concurrent resolutions invalid, state the proper and correct rule.

“Appellant also relies on Phillips v. Riley, 6 Cal. (2d) 414 [57 Pac. (2d) 1308], recently decided by this court as sustaining its position. This case did involve an interim committee, and did hold that such a committee could lawfully incur certain expenses. The opinion states that the committee was created by concurrent resolution, appellant contending that this is an error, the true fact being that the committee was created by a single house resolution. Whatever the true fact may be in this regard, that case cannot be considered as an authority in the present controversy, for the reason that both parties to that appeal conceded that the committee was validly created. The opinion is very short. At page 415 it is stated: ‘The due appointment of the committee by joint action of both houses of the legislature is not challenged, nor is it charged that the committee has not full power and sufficient authority to carry out the letter and spirit of the resolutions creating it.’ The point involved in the present controversy was not only not passed upon but was conceded by the parties. We find nothing helpful in In re Connolly, 16 Cal. App. (2d) 709 [61 Pac. (2d) 490], also cited by appellant, the point here under discussion not being involved or discussed.

“Appellant’s last argument is that the legislature for many years past has created interim committees by single house or concurrent resolution, and that such legislative usage, never before challenged, is entitled to the greatest weight in determining the validity of the appellant committee. The obvious answer to this contention is that usage and custom, no matter how long continued, cannot create a right in the legislature that otherwise it does not possess, and, which, as already held, is impliedly denied to it. As was said in Fergus v. Russel, supra, in answering an identical contention (p. 146): ‘We are not unmindful of the fact that for many years it has been the practice of the Legislature of this state, and of each house thereof, to thus appoint, by joint, or separate resolutions, committees to act after the session of the Legislature had ended, but we have never been called upon to determine the validity of such action. The long indulgence in this custom cannot create a right in the legislature, or either house thereof, to do that which it has no power or authority to do.’

“In view of our conclusion that appellant committee had no legal authority to sit after adjournment of the legislature sine die, no necessity exists for passing on the other question raised, viz., the propriety of the specific questions asked of respondents. ’ ’

For the foregoing reasons the judgment appealed from is affirmed.

LANGDON, J., Dissenting.

I dissent.

Article IV, section 1 of our state Constitution declares that ‘ ‘ The legislative power of this state shall be vested in a Senate and Assembly which shall be designated ‘The Legislature of the State of California’ ”.

Section 2 of the same article provides that “The sessions of the legislature shall be biennial, unless the governor shall, in the interim, convene the legislature, by proclamation, in extraordinary session. ...”

Sections 3 and 4 provide that the “term” of office of members of the Assembly and of the Senate shall be two years and four years, respectively.

Section 23' declares that members of the legislature “shall receive for their services the sum of one hundred dollars each for each month of the term for which they are elected ... ”.

None of the foregoing sections, in my opinion, expressly declares or impliedly infers that either house of the legislature is not a “continuing body”. In fact, said sections appear to suggest a contrary conclusion and for the following reasons: (1) The length of the session is not prescribed or limited—if necessary, it could extend until the date fixed for the next biennial session which would coincide with the term of the members of the assembly and the remainder of the term of one-half of the senate. (2) The members of both houses are paid for their full “term” and not on a per diem or session basis. (3) After adjournment sine die, and at any time prior to the next ensuing biennial session, they may be convened at the call of the governor and may “legislate” upon matters included in such call; that is to say the power to legislate is ever present and continues to exist even after adjournment sine die.

In the early case of Ex parte McCarthy, 29 Cal. 395, this court had occasion to declare that “A legislative assembly, when established, becomes vested with all the powers and privileges which are necessary and incidental to a free and unobstructed exercise of its appropriate functions. These powers and privileges are derived not from the Constitution; on the contrary, they arise from the very creation of a legislative body, and are founded upon the principle of self-preservation. The Constitution is not a grant, but a restriction upon the power of the legislature, and hence an express enumeration of legislative powers and privileges in the Constitution cannot be considered as the exclusion of others not named unless accompanied by negative terms. A legislative assembly has, therefore, all the powers and privileges which are necessary to enable it to exercise in all respects, in a free, intelligent, and impartial manner, its appropriate functions, except so far as it may be restrained by the express provisions of the Constitution, or by some express law made unto itself, regulating and limiting the same. (Cush. Law and Practice of Legislative Assemblies, p. 221.)

“That powers and privileges, therefore, a legislative assembly takes by force and effect of its creation are to be ascertained by a reference to the common parliamentary law. These powers and privileges are classified by Cushing (p. 246) as follows: . . .

‘12. To investigate, by the testimony of witnesses or otherwise, any subject or matter, in reference to which it has power to act; ...”

It goes without saying that a legislature cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Certainly if a legislature needs information concerning a problem simple enough to be canvassed quickly, it probably stands in greater need of accurate insight into a problem of greater complexity. Is it not strange to imply a power to investigate without also implying a power to investigate thoroughly? The public interest in the competent discharge of legislative functions should be strong enough to overwhelm technical objections.

The case just above cited, and others that might be mentioned, recognize, and all parties to this litigation concede, that investigation is an indispensable and important incident, and an inherent auxiliary to the proper exercise of the legislative power and that such incidental and auxiliary function may be exercised by either house by single house resolution empowering a committee to sit during the constitutional recess. Inasmuch as the power to legislate continues and exists after adjournment sine die, just as fully and completely as during the constitutional recess, and inasmuch as either house may eoncededly by single house resolution lawfully create a committee to investigate during the period of such constitutional recess, when technically it is no more engaged in legislating than it is following an adjournment sine die, there would appear to be no substantial reason for denying to either house the right by single resolution to create interim committees for the purpose of carrying on proper legislative investigations. In other words, if the express power to legislate continues and exists (though it be dormant) in the interim between sessions of the adjourned legislative body, it seems reasonable to conclude that the incidental and auxiliary investigatory function likewise continues and may be employed during such period, thus insuring a more effective exercise of the principal legislative function. If this be so, a single house resolution is sufficient to create a lawful interim committee, for under section 9 of article IV, supra, “each house shall determine the rule of its proceeding”—which latter provision would appear to delegate to each house the choice of methods for the most advantageous use of its functions in the exercise of the state’s legislative power.

The question here involved is a novel one in this state, and being peculiar to our constitutional set-up, I have treated the same solely in the light of our constitutional provisions and without regard to the weight of authority elsewhere apparently to the contrary. The decisions of other jurisdictions are considered at length in the majority opinion. They may be correct under the constitutional provisions there prevailing but even if decided under provisions analogous to our system of government, they need not prove determinative here. In the absence of express constitutional prohibition, I am of the opinion that interim committees of the legislature may be lawfully created by single house resolution.

SEAWELL, J., Concurring in Dissent.

I concur in the dissent.

The law as announced in the earlier decisions of other jurisdictions, in the absence of constitutional restrictions, is founded on a policy which appeared to be most expedient for the promotion of public welfare as conditions existed in those jurisdictions at the time said decisions were written. The development of the agricultural, industrial and commercial life of this state has been so vast and varied that, in the opinion of the legislature, it has become necessary to adopt expedient methods for the investigation and study of questions which have never before confronted the legislative body. Proper study and investigation of momentous subjects cannot be given to important matters which affect the welfare of the state and which are being pressed for solution without the adoption of the interim system. There being in our Constitution no inhibition against the continuance of the system which has existed during past years, I am of the view that we should not adopt the law as written in the decisions of other jurisdictions at distant periods of time, under wholly different conditions, and with no thought of the complex problems which are hourly calling for study and investigation by the ablest in statesmanship and the science of government. Being free so far as constitutional restraints are concerned, the legislature should be free to adopt its own policy in the transaction of its business.


source: Caselaw Access Project

author: THE COURT. LANGDON, J., Dissenting. SEAWELL, J., Dissenting.

license: Public Domain

text:
    [S. F. No. 16035.
    In Bank.
    May 6, 1939.]
    RALPH E. SWING, as Chairman of the Senate Interim Committee, etc., et al., Petitioners, v. HARRY B. RILEY, as State Controller, etc., Respondent.

      Fred B. Wood, George W. Wakefield, Arthur McHenry and Norris J. Burke for Petitioners.
    Ralph E. Swing, W. P. Rich, T. H. DeLap, Thomas F. Keating, A. L. Pierovich, Irwin T. Quinn, Bradford S. Crittenden, Andrew R. Schottky, Earl S. Desmond, John H. O’Donnell, Charles W. Lyon, Walter McGovern, Paul Peek, Edgar C. Leavey, Ben Rosenthal, Gerald C. Kepple and Edward H. Law, as Amici Curiae, on Behalf of Petitioners.
    U. S. Webb, Attorney-General, and Robert W. Harrison, Deputy Attorney-General, for Respondent.
    George W. Rochester, Harry P. Bowman and William B. Bierne, as Amici Curiae, on Behalf of Respondents.
   THE COURT.

This proceeding is companion to the matter of the Special Assembly Interim Committee v. Southard, L. A. No. 16753. A rehearing was granted herein for the reason set forth in the opinion filed this day (ante, p. 497 [90 Pac. (2d) 304]), in that matter. For the reasons statéd therein the opinion of this court on the former hearing is adopted as the opinion of the court on rehearing, as follows:

“The present petition . . . involves several additional points not- involved in L. A. No. 16753.
“The state senate at its fifty-second session, just prior to the adjournment of that session sine die on May 28, 1937, duly passed a single house resolution reciting the need for regulation of the manufacture, sale and disposition of alcoholic beverages ‘in the interest of the moral, social and economic welfare of the people and in the interest of the temperate use of such beverages’, and the helpfulness of a ‘study of the problems relating to such matters ... in the drafting of legislation and rules and regulations designed to accomplish such purposes’, and creating a committee of five of its members with power and authority to make a full, complete study and investigation of all matters relating to the manufacture, sale and disposition of alcoholic beverages within this state . . . in relation to the issuance of licenses and the enforcement of laws, rules and regulations concerning such business’. The committee was given full power to subpoena Avitnesses and to compel the giving of testimony. It was given leave ‘to sit during the sessions of the senate, and/or during recess and at such times and at such place or places as the committee may determine’ and was directed to ‘report to the Senate at the next regular session of the Legislature its findings and recommendations . . . ’ The resolution also provided that ‘the sum of $2000 ... is hereby set aside and made available for the purpose of defraying the expenses of such committee and the members thereof, other than that required by law to be paid from the legislative help fund. Said sum to be paid from the contingent fund of the Senate and the State Controller is hereby authorized and directed to draw his Avarrants in favor of the person or persons entitled thereto for such expenditures as may be certified to him from time to time by the chairman of said committee, and the State Treasurer is hereby authorized and directed to pay the same. ’
“Thereafter the committee was duly selected and petitioner Swing was appointed chairman thereof. Thereafter the committee proceeded to meet for the purpose of performing the functions delegated to it.
“In January of 1938, the governor, pursuant to the powers conferred upon him by article V, section 9, of the Constitution, called a special session of the legislature. It is conceded that in the proclamation calling the special session there was no mention of legislative committees generally, nor of the committee here hrvolved specifically. The proclamation was likewise silent as to the subject-matter delegated to this committee for study and report. At this special session the legislature by concurrent resolution passed assembly concurrent resolution 18 (chap. 27 of Resolutions, Extra Session, 1938). This resolution should be quoted in full. It provides:
“ ‘WHEREAS, Several interim committees ha\e been established by single house and concurrent resolutions; and
“ ‘WHEREAS, It is desired to supplement and affirm such single house and concurrent resolutions; now, therefore, be it
‘Resolved by the Assembly of the State of California, the Senate thereof concurring, That all Assembly and Senate single house and concurrent resolutions heretofore passed at the regular session of the Fifty-second Legislature and heretofore and hereafter passed at the first extra session of the Fifty-second Legislature, are hereby validated, affirmed and authorized, and the committees established and to be established thereunder are hereby authorized to exercise all the powers and perform all the duties vested in them and imposed upon them by the particular resolution under which the committee or committees are established. ’
“Prior to the adoption of this concurrent resolution certain incidental expenses were incurred by the committee. Other expenses were incurred after the adoption of the concurrent resolution. The chairman of the committee duly certified these expenditures to the respondent controller. The controller refused to draw warrants for the claims on the grounds that ‘interim committees cannot be established by single house resolution with power to function after the adjournment of the Legislature’, and that the concurrent resolution was also ineffectual as a valid authorization for the creation of the committee. Petitioners thereupon brought this proceeding in mandamus to compel the issuance of the warrants.
“In so far as the petition involves the question as to whether either house of the legislature by single house resolution may lawfully create a fact finding interim-committee with authority to function after adjournment of the legislature sine die, that question need not be discussed in this opinion. The identical question was answered in the negative in L. A. No. 16753 (ante, p. 497 [90 Pac. (2d) 304]), this day decided. For the reasons therein stated, and upon the authority of that case, it must be held that the senate resolution of May 28, 1937, was legally insufficient to authorize the committee to incur the expenditures here involved.
“Petitioners contend that, even if it be held that the assembly cannot lawfully create committees with authority to sit after adjournment, for the reason that the assembly is not a continuing body because all of its members are elected each two years, such rule has no application to the senate where only one-half of the membership is elected every two years. It is contended that for this reason the senate must be held to be a continuing body, with power to appoint its committees with authority to sit after adjournment. In this connection petitioners rely on McGrain v. Daugherty, 273 U. S. 135 [47 Sup. Ct. 319, 71 L. Ed. 580, 50 A. L. R. 1].

“To this contention there are two answers. In the first place the legal basis of the rule holding that a single house resolution is ineffectual to authorize a committee to function after adjournment is that upon adjournment sine die all legislative power of both houses terminates, including the auxiliary power of functioning through legislative committees. In the second place, even if we were inclined to follow the holding of the Daugherty case, supra, the rule of that case would not be applicable here. As was pointed out in the assembly committee case, L. A. No. 16753 (ante, p. 497 [90 Pac. (2d) 304]), in the Daugherty case the United States Supreme Court held that senate interim committees could lawfully sit after adjournment for the reason that the senate is a continuing body, two-thirds of its membership at each new session of congress consisting of holdover senators. The United States Supreme Court intimated that this rule probably did not apply to the house of representatives whose entire membership is elected anew each two years. Apparently the theory of the Daugherty case is that a senate interim committee when it reports back to the senate will be reporting back to a body whose membership consists of at least two-thirds of the members that originally appointed the committee. The California senate cannot be held to be a continuing body under any such theory. Article IV, section 8, of the Constitution provides that ‘A majority of each house shall constitute a quorum to do business ... ’As already pointed out fifty per cent of the senators are elected anew each two years. It follows that since fifty per cent of the senate membership at each regular session is newly elected, there is not present a “majority” of the membership of the body that originally appointed the committee.

“ Petitioners next rely on the concurrent resolution passed at the special session, purporting to validate, affirm and authorize the prior action of the senate in creating the committee here involved. This resolution, in our opinion, was ineffectual for the purpose for which it was passed.

“If it be assumed that by concurrent resolution the legislature could validly create an interim fact finding committee with power to sit after adjournment sine die (and could therefore validate by subsequent resolution a committee improperly appointed in the first instance) we have grave doubts that such a concurrent resolution could be constitutionally passed at a special session when the subject-matter contained in the resolution is not mentioned in the governor’s proclamation calling the special session. Article V, section 9, of the Constitution provides that the legislature at special session ‘shall have no power to legislate on any subjects other than those specified in the proclamation . . . ’. This constitutes a prohibition against exercising legislative powers at a special session except in considering matters included within the call. The work of legislative committees is subsidiary and auxiliary to the legislative functions of each house. If the legislature cannot directly legislate on matters not included within the call, then it cannot exercise dependent or subsidiary powers derived solely from the direct power to legislate. This problem was exhaustively considered and discussed in Ex parte Wolters, 64 Tex. Cr. R. 238 [144 S. W. 531, 535, Ann. Cas. 1916B, 1071], where it was held that the legislative power to create legislative committees by single house or concurrent resolution at a special session was necessarily limited to the creation of committees to consider legislation within the governor’s call. (See, also, Gilbreath v. Willett, 148 Tenn. 92 [251 S. W. 910, 28 A. L. R. 1147].) In People v. Curry, 130 Cal. 82 [62 Pac. 516], it was held that the legislature in special session by concurrent resolution had no power to propose a constitutional amendment on a subject not included within the governor’s call. The court pointed out that (p. 89) : ‘It may be admitted that proposing constitutional amendments is not legislation . . . but it is nevertheless performing a legislative function.' The same reasoning is applicable to the appointment of legislative committees.

“ Another and complete answer to this contention is that we are of the opinion that under our Constitution the legislature has no power by concurrent resolution to create a committee with power to sit after adjournment sine die. As far as the question of power is concerned there is no difference in this regard between a single house and a concurrent resolution. It is true that on this subject there is a conflict of authority. The cases both ways are noted in the assembly committee case, L. A. No. 16753 (ante, p. 497 [90 Pac. (2d) 304]). As was pointed out in the assembly committee opinion, several of the cases holding that by a concurrent resolution the legislature may validly create an interim committee, are in fact not authority for that holding, for the reason that in the particular jurisdiction there is no legal distinction between a concurrent resolution and a statute, both requiring the governor’s signature. The reasoning of the several cases holding that a concurrent resolution is ineffectual to validly create such a committee seems to us to be unanswerable. If such a committee cannot lawfully be created by single house resolution (and on this point all state courts agree) it cannot be created by concurrent resolution. Every argument fully set forth in the assembly committee case, L. A. No. 16753 (ante, p. 497 [90 Pac. (2d) 304]) is equally applicable here. Legislative powers of the legislature cease upon adjournment sine die. Such powers cannot be continued after adjournment by either single house or concurrent resolution. The power to investigate by committees is subsidiary to the legislative power. When the main power ceases, the auxiliary power dies with it. If such committee or commission is to function lawfully after adjournment it can be created only by statute.

“ Petitioners’ last argument is that if a statute is required to validly create such a committee, such a statute was in fact passed in reference to the committee here involved. In this connection petitioners rely on two statutes. The first of these is the 1935 Budget Act (Stats. 1935, chap. 341, p. 1176) which provides in part as follows:

“ ‘Item 3. For contingent expenses of Senate for fifty-second session and interim committees thereof, twenty thousand dollars. ’
“The second statute relied upon is the Appropriation Act of 1937 (Stats. 1937, chap. 23, p. 91) which provides in part as follows:
“ ‘SECTION 1. The sum of twenty thousand dollars is hereby appropriated out of any money in the State treasury, not otherwise appropriated, for contingent expenses of the Senate, for fifty-second session and interim committees thereof to be expended for such purposes and in such manner as the Senate shall by resolution direct. This appropriation shall be available without regard to fiscal years.
‘ ‘ ‘ Sec. 2. Inasmuch as this act provides an appropriation for the usual current expenses of the State, it is hereby dedared an urgency measure and shall, under the provisions of article IV, section 2, of the Constitution, take effect immediately. ’
“In their opening brief petitioners contend that these statutes constitute ‘statutory recognition and validation of the instant committee’. (Pet. Op. Brief, p. 29.) In their closing brief petitioners concede that the statutes cannot be considered ‘technically’ as validating statutes, because they were passed before the committee was created. (Pet. Reply Brief, p. 74.)
“It is quite clear that these statutes in no way constitute a statutory recognition of interim committees generally, or of the committee here involved specifically. The provisions for expenses contained in these statutes obviously contemplated the creation of valid and legal interim committees. It cannot logically be argued that in passing these statutes (one over two years, the other over two months, before the committee here involved was created) the legislature had in mind that interim committees would thereafter be unlawfully created by resolution, and that this was an attempt to ‘validate’ or ‘authorize’ them in advance; The statutes are of no legal significance in this case.
“The other points involved have all been discussed in the assembly committee case, L. A. No. 16753 (ante, p. 497 [90 Pac. (2d) 304]), and need not be discussed in this opinion.”

For the foregoing reasons the alternative writ of mandate heretofore issued is discharged, and the application for a peremptory writ is denied.

LANGDON, J., Dissenting.

I dissent.

My views and conclusions on the issues involved herein are set forth in a dissenting opinion, this day filed (ante, p. 497 [90 Pac. (2d) 304]), in the proceeding entitled Special Assembly Interim Committee v. Southard, L. A. No. 16753.

SEAWELL, J., Dissenting.

I dissent for the reasons expressed by me in the companion case of Special Assembly Interim v. Southard, L. A. No. 16753, this day filed (ante, p. 497 [90 Pac. (2d) 304].)


author: THE COURT.

text:
    [Crim. No. 4219.
    In Bank.
    May 8, 1939.]
    THE PEOPLE, Respondent, v. WILBERT F. KING et al., Appellants.

      Robert M. Wash and Gerald H. Catania for Appellants.
    U. S. Webb, Attorney-General, Earl Warren, Attorney-General, Eugene M. Elson, Deputy Attorney-General, Dan F. Conway, District Attorney, and S. L. Heesinger, Jr., Deputy District Attorney, for Respondent.
   THE COURT.

In an amended indictment returned by the grand jury of Fresno County, the defendants were jointly charged with the crimes of murder and robbery, each offense being separately stated. The defendant Anderson was also charged with having suffered a prior conviction of felony in the state of Nevada in 1936, for which he served a term of imprisonment. Bach defendant entered a plea of not guilty to both counts. Defendant Anderson admitted the prior conviction. Subsequently, the defendants withdrew their pleas to the robbery count and entered pleas of guilty thereto, the degree of which was fixed by the trial court as of the first. At the conclusion of the trial, verdicts were returned by the jury finding each defendant guilty of murder of the first degree without recommendation. Judgments were accordingly entered imposing the death penalty upon the defendants. The cause comes before us on appeals from the judgments and the orders denying a new trial.

The facts surrounding the commission of the robbery and murder are simple of statement and free of dispute. It appears that the defendants had been friends for a period of several years and for a few months prior to the perpetration of the crimes here involved they had roomed together in the city of Fresno, where, by their own admission, they had jointly participated in a series of thefts and robberies culminating in the robbery and murder of one G-. B. Ward at approximately 10:30 P. M. on July 17, 1938. Defendants freely admitted in confessions made by them prior to trial and when on the witness stand in their own defense, that as the victim Ward brought his automobile to a stop in response to an automatic traffic signal at an intersection of two streets in the city of Fresno, they stepped from the curb where they had been standing and forcibly entered the victim’s ear. Defendant Anderson, flourishing a loaded gun in the victim’s face, opened and entered the right door of the car while the defendant King went around the rear of the car and opened and entered the left door. Ward was pushed over between them on the seat and the defendant King immediately took over the operation of the ear. Almost simultaneous with Anderson’s entry of the car the gun held by him belched forth several shots, five of which entered Ward’s body and according to medical testimony, caused his demise shortly thereafter. Upon entering the car and shooting its operator, the defendants, wdth King at the wheel, drove the car some distance, robbed the victim of seventy dollars, which they admittedly divided, removed the victim from the car, and then proceeded on to another point where they abandoned the vehicle. Anderson was later apprehended in Las Vegas, Nevada, and King was subsequently taken into custody in Provo, Utah.

The presence of several persons at or near the intersection where the defendants entered Ward’s ear and shot him did not deter them in the carrying out of their admittedly prearranged plan to forcibly enter an automobile. These persons testified as prosecution witnesses. The testimony shows and the defendant King admits that he had purchased the gun about one month prior to the homicide. It had been used by them in their earlier thefts and robberies, each having apparently indiscriminately carried it. On cross-examination, the defendant Anderson testified that as he entered Ward’s car he “told him this was a hold up.” To more fully state the facts would add nothing to this opinion for it must now definitely appear that the confessed and admitted homicide was perpetrated in the commission of a robbery, and, under the provisions of section 189 of the Penal Code, can be designated only as murder of the first degree. We therefore direct our attention to the contentions of the defendants that certain alleged errors occurring during the conduct of the trial served either to deny them a fair trial or to prejudice them before the jury. The defendants have filed separate briefs but such of the contentions as are common to both shall, of course, receive joint attention.

Both defendants urge that the trial court erred in refusing to give an instruction upon murder of the second degree. They concede that the refusal of the court below “was based upon the premise that the evidence conclusively disclosed that the homicide was committed in the commission or the attempt to commit the crime of robbery, and was therefore murder in the first degree or nothing”. As already indicated, we are in accord with this asserted ‘ premise” of the trial court and we cannot accept the defendants’ theory that they were not engaged in a robbery or attempted robbery for the reason that the shooting preceded by a short interval of time the actual taking of the money from the person of the victim. The facts above stated clearly disclose that the shooting was simultaneous with the forcible entry and assumption of possession of the victim’s car which, in turn, constituted but one of the preliminary steps in the consummation of the “hold up” or robbery which one of the defendants announced to the victim as they entered his. qar, In Other words, the forcible entry of the ear and the shooting were the initial overt acts in the actual perpetration of an admittedly preconceived “hold up” of any person who might be unfortunate enough to happen along. However, even if the defendants had terminated their plan after entering the car and shooting its operator and thereafter had made no effort to take his money, the homicide would still constitute murder of the first degree because committed in an attempt to perpetrate a robbery. (Sec. 189, supra; People v. Anderson, 1 Cal. (2d) 687, 689 [37 Pac. (2d) 67].) There was no occasion in this case for the giving of an instruction on murder of the second degree and the contention of defendants is wholly lacking in merit.

Both defendants complain of an instruction which, in effect, told the jury that in the event it returned a verdict of murder of the first degree and found “some extenuating fact or circumstance in the case” it could in its discretion relieve the defendants, or either of them, from the extreme penalty of the law but that such discretion was “not an arbitrary one” and should not be exercised in the absence of “some extenuating fact or circumstance”. It is now urged, as it has been on many other occasions, that section 190 of the Penal Code does not limit the right of the jury to fix the punishment at life imprisonment to those cases wherein extenuating circumstances appear but that, on the contrary, the jury is free to prescribe such punishment, in its discretion, in any and all eases. Though perhaps not in literal compliance with the provisions of section 190, supra, the instruction is practically identical with one given in People v. Rogers, 163 Cal. 476, 483 [126 Pac. 143], in which ease it was held that “The law of this state thus appears to be thoroughly settled to the effect that the instruction in question is not erroneous”. On many occasions the giving of a similar instruction has been held not to constitute error. (People v. Bawden, 90 Cal. 195 [27 Pac. 204]; People v. Casade, 194 Cal. 679, 682 [230 Pac. 9] ; People v. Harris, 219 Cal. 727, 733 [28 Pac. (2d) 906] ; People v. Goodwin, 9 Cal. (2d) 711, 715 [72 Pac. (2d) 551].) The record discloses that defendants are guilty of a cold-blooded murder. There can be no question in the mind of one who reads it that there are no circumstances which would have justified the jury in affixing anything less than the extreme penalty of the law.

In so stating, we are not unmindful of the attempt to show upon the trial, and of the argument here to the effect that there was no intent to shoot the victim but that the gun by reason of the wearing of its parts was capable of being automatically discharged several times by a single pressure on the trigger. Even if we were to concede that the gun was a true automatic in the sense that one pulling of the trigger would cause all shells in the chamber to be discharged in rapid succession, we fail to perceive wherein the defendants would be benefited for someone had to apply the initial pressure to the trigger to start such automatic firing and it is nowhere shown or contended that anyone but the defendant Anderson was holding and pointing the gun at the deceased at the time of the shooting. Nor does the fact that Anderson testified that he did not “intend to fire the gun” alter the situation. (People v. Anderson, supra.) Moreover, we are of the view that the record here fails to disclose that the gun employed by the defendants was a true automatic in the sense above mentioned. A prosecution expert testified that he fired the death gun innumerable times and that it was necessary to pull the trigger each time a shell was to be discharged. Generally speaking, the evidence of the defendants along this line had to do with guns other than the one used by the defendants, though of the same make or type, or had to do with guns on which the “sear” had become so worn or had been so filed or honed as to cause automatic firing with a single pressure on the trigger. As stated, we are of the opinion that this condition was not shown to exist in the death gun but, as also stated, even if it had been shown, we fail to perceive wherein the defendants could derive any comfort from the fact.

The defendants next urge that the district attorney was guilty of prejudicial misconduct in his argument to the jury. Both complain of substantially the same portions of the argument wherein they were castigated and characterized in decidedly uncomplimentary terms. While we have frequently indicated that a prosecuting officer should not overstep the bounds in his argument to the jury we are of the view that no prejudice could have resulted from the remarks here complained of even if we should concede, ■ without deciding, that said remarks were intemperate and might well have been left unuttered. In our opinion, the result in this case would have been the same if there had been no argument for, as indicated, the evidence discloses a planned robbery is the commission of which the victim was fatally shot by the perpetrators thereof. In addition, the record fails to show that either defendant objected to any of the remarks or requested that the jury be admonished to disregard them with but one exception and in this particular the district attorney asked the jury to disregard the remark and the court so instructed. In the absence of objection and request that the jury be admonished, the defendants are now foreclosed from complaining. (People v. Green, ante, p. 37 [87 Pac. (2d) 821] ; People v. Gist, 28 Cal. App. (2d) 287 [82 Pac. (2d) 501]; People v. DuBois, 16 Cal. App. (2d) 81, 87 [60 Pac. (2d) 190].)

When on the witness stand in his own defense, the defendant King testified that a short time prior to the robbery and fatal shooting of Ward he had “engaged in several hold ups”. Upon cross-examination, the district attorney brought out, over objection, the location and character of these several “hold ups” and that the defendants on these occasions had employed and flourished the gun here involved. It is now urged that this was improper cross-examination and that the recitation of the details of these earlier offenses did not serve to prove any of the issues here presented. We entertain no doubt as to the propriety of the cross-examination as to matters admittedly generally divulged on direct examination. (People v. Mammilato, 168 Cal. 207, 213 [142 Pac. 58]; People v. Gallagher, 100 Cal. 466, 475 [35 Pac. 80].) In addition to many other reasons that might be advanced in support of the materiality and relevancy of the evidence adduced on such cross-examination, it may be stated that it was there disclosed that the defendants had on these several prior occasions employed the death gun to intimidate their victims and accomplish their objective and without any accidental or unintentional discharge thereof. In other words, the continued use of the gun by the defendants without undue happening tends definitely and strongly to overcome and destroy the theory here advanced that the gun by reason of wear or other causes was practically “hair trigger” in character and capable of discharging its entire contents of shells without exterior assistance. Moreover, the prosecution was free to establish that the robbery and fatal shooting of Ward were part of a general plan or scheme to commit robberies. (People v. Thorne, 10 Cal. (2d) 705 [76 Pac. (2d) 491].)

The defendant King also urges that the trial court erred to his prejudice when in response to a query of the jury “whether the verdict has to be the same for each defendant”, the court replied “No, not necessarily. The verdicts can be different for the two different defendants, if that is what you had in mind. ... In other words, each defendant is to be considered as if he were alone in the case, although they are charged jointly. The consideration of the jury should be as to each separate defendant.” It is now contended that the words “No, not necessarily” indicated to the jury that the verdicts should be the same. The point lacks every vestige of merit. Counsel did not object at the time and, in fact, now concedes that “the instruction clearly states the law”. It is difficult to conceive how the statement of the matter could be improved. At the time, the trial judge inquired if counsel desired “to add anything further to the explanation of the court” whereupon counsel for both defendants stated “I think that is correct”.

It is urged by the defendant Anderson that he was prejudiced by the district attorney inquiring, and the trial court permitting him to inquire, whether he (Anderson) was ever convicted of a felony. He concedes that ordinarily when a defendant in a criminal case takes the witness stand he may be impeached, like any other witness, under the provisions of section 2051 of the Code of Civil Procedure. But, he contends, where, as here, the defendant confesses to the crime and admits its commission on the witness stand, the prosecution may not question his credibility. We do not understand the rule to be so limited. Contrary to the defendant’s statement we do not find in the record that the district attorney “stipulated” to the truth of the confession, lie merely offered it in evidence as the voluntary extrajudicial statement of the defendant and was free to challenge the defendant’s credibility under the established rules of evidence.

As stated at the commencement of this opinion, the evidence against both defendants is clear and undisputed that while engaged in robbing the deceased they mortally wounded him. They fled the scene and were later apprehended out of the state and returned here where they had a fair trial and were properly convicted. We find nothing in the record calling for a reversal.

The judgments and orders are, and each is, hereby affirmed.

Houser, J., concurred in the judgments.


text:
    [L. A. No. 16995.
    In Bank.
    May 8, 1939.]
    CALIFORNIA CASUALTY INDEMNITY EXCHANGE (an Inter-Insurance Exchange), Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION and LEE C. CRAWFORD, Respondents.

      Richard L. Oliver for Petitioner.
    Everett A. Corten for Respondents.
   THE COURT.

A hearing was granted in this cause after decision by the District Court of Appeal of the Second Appellate District, Division Two, in order that this court might more thoroughly examine into the questions presented for determination. Further consideration thereof has satisfied us as to the correctness of the opinion prepared by Mr. Justice Wood when the matter was before the District Court of Appeal. Therefore, with such additional comment as shall be appended thereto, we hereby adopt said opinion as and for the opinion of this court. It reads:

“Respondent Crawford filed an application with the Industrial Accident Commission wherein he sought to recover from petitioner, the insurance carrier for his employer, the reasonable value of his eye-glasses which were damaged in an industrial accident. The commission filed its findings in favor of Crawford, awarding him the cost of replacing the lenses of his eye-glasses. The insurance carrier seeks annulment of this award.

" The sole question presented to us for consideration is whether or not eye-glasses are artificial members within the meaning of the Workmen’s Compensation Act. Section 3208 of the Labor Code (formerly sec. 3 (4) of the Workmen’s Compensation Act), provides: ‘Injury includes any injury or disease arising out of the employment, including injuries to artificial members.’ (Italics ours.)

“It becomes necessary for us to determine what the legislature meant when it used the term ‘artificial members’ in that section. ‘Member’ is defined in Webster’s New International Dictionary as being: ‘A part or organ of the animal body; especially a limb or other separable part.’ The word ‘artificial’ is defined by Webster’s New International Dictionary as being in opposition to the word ‘natural’. An artificial member must be held to be a substitute for a natural part, organ, limb or other separable part of the body. We believe this conclusion to be fully in accord with the decision ... in the only case in this jurisdiction which has been brought to our attention, involving an interpretation of this section of the Workmen’s Compensation Act. In Pacific Indemnity Co. v. Industrial Acc. Com., 215 Cal. 461, at 465 [11 Pac. (2d) 1, 82 A. L. R. 1170], the court, in holding that an award may be made for an artificial leg, states: ‘Fear is expressed by petitioner that the award is the forerunner of others for injuries to clothes, tools, automobiles or other personal property. We anticipate no such result. The Constitution, in our opinion, authorizes compensation for injury to the body of the workman, including every part thereof, natural or artificial, which is essential to its proper functioning. Other things, such as clothes and tools, may be necessary if he is to perform his duties, but their destruction does not cause him a physical injury or disability. His body may function without them.’

“ The ultimate test to be applied to any given case in order to determine whether it comes within the. provisions of the above section is: Was the thing injured a substitute for, or a mere aid to some natural part of the body? Eyeglasses are in no sense a substitute or replacement for a natural part of the body; they are merely aids to the eyesight. The eyes, which are the organs of sight, however defective they may be, are still a natural part of the human body.’’

Prior to the award in the present case, the respondent commission applied the foregoing reasoning to a similar situation in the ease of Schneider v. California Coop. Canneries, 18 I. A. C. 78, wherein it denied an award to an applicant for the repair of eye-glass frames broken in an industrial accident on the ground that eye-glasses “constitute an aid to, and not a substitute for, a portion of the body”. This test was again set down in Elliott v. Commercial Cas. Co., 19 I. A. C. 51, 52, wherein the respondent commission made an award covering replacement of bridgework on the ground that “a bridge is a substitute for, and not an aid to, a part of the body. ...” Of course a glass eye, false teeth, and other substitutes for natural members would be compensable under this test.

In 1 Campbell on Workmen’s Compensation, 75, section 99, it is stated that “The breakage of eye-glasses, injury to a wig or toupee, ear-horns, . . . orthopedic shoes and apparatus whose correction or replacement is less than such a portion of a limb as to be regarded as ‘an artificial member’ would thus come under the classification of ‘property damage’ and is not a compensable injury. The test is whether the thing injured was a substitute for or a mere aid to a portion of the body.”

In 1 Schneider on Workmen’s Compensation, 539, section 147, it is stated that “neither is the breaking of an eyeglass, as a result of a fall, a personal injury”.

Though eye-glasses may in many instances be “essential to the proper functioning of the body”, as urged by respondent, it may equally be argued that the chill blasts of winter and the heat rays of summer make clothing “essential to the proper functioning of the body” and yet, it would hardly be contended that an injury to clothes, or other articles of personal property, should be compensable under our present law. Many persons, equipped with all of their natural members, use various types of personal property to enable such natural members to function more efficiently. Among such aids may be mentioned corsets, trusses, elastic supports, ear horns, elastic stockings, back braces, knee braces, goggles, and others. These articles cannot be said to be “ artificial members” or substitutes therefor.

The fact that the breakage of eye-glasses, may, as in this case, cause disability in the sense that the applicant is thereby precluded from properly discharging his duties as an employee, is not necessarily determinative. Disability of such a character is not the test. Under our present statute which provides for compensation for injury to “artificial members” an award may be made for damage to or destruction of such artificial members even though the person may as efficiently discharge his duties without them. To illustrate, a person whose artificial eye or bridgework has been damaged in an industrial accident would be entitled to an award therefor regardless of his ability to continue his work without them.

The provisions of section 4600 do not suggest a different result in this case. Under that section an employer is required to furnish “nursing, medicines, medical and surgical supplies, crutches, and apparatus, including artificial members . . . reasonably required to cure and relieve from the effects of the injury ... ”. This section obviously applies to the alleviating and curing of physical injuries suffered by the employee. Eye-glasses furnished thereunder are supplied as an “apparatus” reasonably required to relieve from the effects of an injury to the eye. They are not furnished as “artificial members” for, as stated, they do not fall within such category. Section 3208 defines an “injury” while section 4600 defines the duty of the employer after an “injury” has occurred within the meaning of the former section. As shown above, damage to eye-glasses is not an “injury” within the meaning of section 3208.

This discussion may well be concluded by again quoting from our decision in the “wooden leg” case, supra, 465, to the effect that ‘ ‘ The legislature has only gone so far as to provide for compensation for injury to artificial members. "Whether it may in the future seek to go beyond this point is not a proper question for our consideration at this time.”

For the foregoing reasons, we conclude that ordinarily, damage to eye-glasses is not compensable under the Workmen’s Compensation Act as being an injury to an “artificial member” of the body.

The award must be and it is annulled.


author: SHENK, J.

text:
    [S. F. No. 16156.
    In Bank.
    May 16, 1939.]
    C. E. SKIDMORE et al., Appellants, v. COUNTY OF ALAMEDA, Respondent.

      Frank L. Guerena, Hester W. Webb and William H. Mackay for Appellants.
    Earl Warren, District Attorney, Alameda County, Ralph E. Hoyt, Chief Assistant District Attorney, and James H. Oakley, Deputy District Attorney, for Respondents.
   SHENK, J.

The plaintiffs sued on a claim filed with the board of supervisors of Alameda County on May 11, 1932, and rejected. The claim contained a list of items alleged to have accrued to the plaintiffs between April 1, 1922, and February 19, 1932. The defendant interposed the defense of accord and satisfaction by an alleged final payment to the plaintiffs, and pleaded as a bar the provisions of section 4075 of the Political Code, which limit the time for filing claims to one year after the last accrued item of the account. Judgment was rendered for the defendant and the plaintiffs appealed.

On March 30, 1922, the board of supervisors of the defendant county adopted a resolution by- which the plaintiffs Skidmore and Kramer were employed to check all deeds and sales to the state of unredeemed or unsold property in said county on which taxes were first delinquent in 1916-17 and prior years. The resolution required the plaintiffs to submit reports covering all such sales to the state, with recommendations as to further disposition of the separate parcels. By the resolution the plaintiffs were to be paid for their services an amount equal to 50 per cent of the county’s proportion of all moneys received on the redemptions or sales of such properties, with certain exceptions not material here. Warrants were to be issued monthly up to 75 per cent of the amount shown to be due during the preceding month, the remaining 25 per cent to be paid when the plaintiffs furnished an affidavit to the effect that they had cheeked “the records of the United States Land office, the State Surveyor’s office, County Auditor’s and County Recorder’s office of the County.of Alameda to the extent necessary for a complete performance of the things required to be done and performed by them under this resolution, and have also submitted to the Board of Supervisors of Alameda County their report and recommendation, as hereinbefore provided”. It was provided that in no event should the compensation of the plaintiffs for such services exceed $12,000.

The plaintiffs commenced performance at once and as the work progressed furnished lists, reports and recommendations to the board as required by the contract. Sales and redemptions of numerous parcels were made in accordance with the recommendations of the plaintiffs. Warrants representing 75 per cent of the amount due to the plaintiffs were issued periodically. Prior to November 3, 1927, the plaintiffs completed their work of checking and making reports and recommendations, and filed the required affidavit with the board of supervisors. On the date last mentioned the board adopted a resolution reciting those facts and resolving that the services of the plaintiffs were “hereby accepted as full and complete performance of the things required to be done and performed by them”, under the contract, and that the “county auditor be and he is hereby authorized to issue his warrant in favor of said A. L. Kramer and C. E. Skidmore for the final payment due said persons under and by virtue of the terms of said contract”. The auditor accordingly drew a warrant for the sum of $860.97, and the proceeds thereof were collected by the plaintiffs.

In concluding that the plaintiffs were entitled to nothing, the trial court apparently was of the opinion that the board properly rejected the claim on the ground that the receipt of the sum of $860.97 was full payment to the plaintiffs under the contract. It appeared beyond dispute, however, that said sum of $860.97 represented the final 25 per cent of the amount reported by the county as due and payable to the plaintiffs up to that time; that sales and redemptions in addition to those accounted for by the periodic and final payments to the plaintiffs were consummated and that the proceeds thereof were retained by the county without any accounting to the plaintiffs; that the items unaccounted for accrued in each of the years 1922 to 1932, inclusive, and that the last item accrued within one year prior to the filing of the claim.

The claim filed with the board contained a list of the unaccounted for items representing sales actually made as a result of the plaintiffs’ reports and recommendations. Some of those sales occurred before and some after the alleged “final payment” authorized under the resolution of November 3, 1927. Also included in the plaintiffs’ claim was a list of all properties referred to in their reports and recommendations which have not yet been sold or redeemed, but which if sold or redeemed would, it is contended, entitle the plaintiffs to compensation in excess of $12,000. The complaint included a cause of action based on the county’s refusal and failure to permit sales of such properties, and under which it was sought to recover the difference between the sums theretofore received by them and the maximum of $12,000 specified in the contract, or $8,264.77.

The cases of Skidmore v. West, 186 Cal. 212 [199 Pac. 497], and Skidmore v. Dambacher, 6 Cal. App. (2d) 83 [43 Pac. (2d) 1110], have settled favorably to the plaintiffs the question of the validity of the contract herein involved. However, there is nothing stated in those decisions, nor do we find any provision of the present contract, which would warrant a conclusion that the county was bound to sell every parcel of land recommended to be sold in the plaintiffs’ reports. There is no limitation of time stated in the contract within which the county must effect a sale of parcels not redeemed. "Whether such a provision, if included, would be valid, it is not now necessary to decide. Such a limitation may not be inferred for the purpose of accelerating the due date of the compensation to be paid to the plaintiffs. The contrary intent is in fact expressed by the provision that the compensation of the plaintiffs is to be measured by one-half the county’s proportion of the proceeds received from actual sales or redemptions. But the plaintiffs are nevertheless entitled to recover any portion of their claim, less than the whole, which is legally due them. (Nelson v. Merced County, 122 Cal. 644, 646 [55 Pac. 421] ; Welch v. County of Santa Cruz, 30 Cal. App. 123 [156 Pac. 1003].)

The plaintiffs contend that the resolution of November 3, 1927, authorizing the “final payment” and the receipt by them of the proceeds of the warrant issued thereunder, may not be construed as an accord and satisfaction, or payment in full of all sums due or to become due under the resolution embodying the contract between them and the county.

The terms of the contract, the wording of the resolution of November 3, 1927, the amount of the warrant representing such “final” payment, and the subsequent issue of further warrants to the plaintiffs, all indicate conclusively that by the issuance of the warrant for $860.97 it was intended to discharge only the 25 per cent withheld by the county until the complete performance by the plaintiffs of the services contemplated by the first resolution. There was no dispute between the parties at the time with reference to the actual sales or redemptions effected pursuant to the plaintiffs’ report and recommendations. In fact it was only a short time before the filing of their claim that the plaintiffs acquired knowledge of sales of parcels in addition to those as to which compensation had been computed and received. As stated, the amount of the warrant for $860.97 represented exactly 25 per cent of the amounts theretofore reported by the county as payable to the plaintiffs, 75 per cent of which had previously been received by them. In the years 1929, 1930 and 1931, six additional warrants, varying in amounts from $4.50 to $206, were issued to and collected by the plaintiffs, representing further sales made by the county subsequent to the resolution of November 3, 1927. Each of these additional warrants represented a sum equal to 50 per cent of the moneys received by. the county on such sales, and therefore admittedly-represented 100 per cent of the amount thereby due to the plaintiffs under the contract. There is no evidence which would warrant the conclusion of the board of supervisors or of the trial court that the warrant issued pursuant to the resolution of November 3, 1927, was in full payment and satisfaction of all past and future unpaid claims to compensation which the plaintiffs might have under the contract. The only proper conclusion on the record is that the payment designated “final”, pursuant to the resolution of the board, settled only the claims for items of compensation which the warrant specified and was thus intended to represent.

The question then is whether the plaintiffs are entitled to recover any of the items of compensation based on sales made prior to one year next preceding the filing of their claim. The county asserts that the provisions of section 4075 of the Political Code bar all items of the claim which accrued more than one year prior to the time when the claim was filed with the board. That section specifies that the claim must be presented and filed “within a year after the last item of the account or claim accrued”.

There is no question that a year has not elapsed between the accrual of the items set forth in the plaintiffs’ claim. If therefore the items showing amounts actually received by the county for sales as a result of the plaintiffs’ reports and recommendations, and as to which they had not theretofore received their measure of compensation, may be deemed to constitute an “account or claim” within said section 4075, the plaintiffs would be entitled to recover on all such items. (City of Los Angeles v. County of Los Angeles, 9 Cal. (2d) 624 [72 Pac. (2d) 138, 113 A. L. R. 370]; Nelson v. Merced County, 122 Cal. 644 [55 Pac. 421].)

To support its contention that the plaintiffs’ claim was not an “account”, but represented separate causes of action embraced within one alleged claim, and that as to each the statute applied independently, the defendant relies on cases such as Millet v. Bradbury, 109 Cal. 170 [41 Pac. 865] , Lee v. De Forest, 22 Cal. App. (2d) 351 [71 Pac. (2d) 285] , George Rice & Sons v. Cowan, 46 Cal. App. 225 [189 Pac. 132], and People v. California Safe Deposit & Trust Co., 41 Cal. App. 727 [183 Pac. 289]. Those cases give the technical definitions of a mutal “account” connoting entries of both debit and credit, the deduction of items on one side of the account from the amount of the items on the other side for the purpose of striking a balance, and exclude express contracts and obligations reduced to writing, and “instalment” contracts. The facts involved the application of the general statutes of limitations. Assuming the pertinency of such decisions under appropriate statutes of limitation, we must here be guided by the intention of the legislature in adopting the Political Code section pleaded by the defendant.

As noted in Nelson v. Merced County, supra, at page 647, “statutes of limitations are to be strictly construed and the court must find the intention of the legislature from the statute itself”. The code section applies to any claim in favor of any person, and would include a claim arising under express contract. The words “account” and “claim” are both used, indicating that a claim is not necessarily to be restricted to the essential requirements of a formal or technical account, as defined in the eases relied upon by the defendant. A much broader meaning is very obviously intended. There is no language in the statute to express the intent that varying amounts which become due to the claimant for the performance of specified services under an express contract should be treated as separate claims, rather than as the items of one claim. The statute contains no limitation and must be applied as it plainly reads. It was so applied in Nelson v. Merced County, supra, where the claimant sought payment for services based on a per ddem stipend unpaid for more than three years prior to the filing of the claim. It was held that under a similar statute “all employment by the day under the same contract, at a stipulated compensation, is the proper subject of an account to be embraced in a single cause of action”. No controlling distinction may be drawn in the present case because some act on the part of the county was essential before compensation became due to the plaintiffs. There was here but one contract of employment, and several items of compensation became due to the plaintiffs under the terms thereof. Inasmuch as the lapse of one year has not intervened between any of the items, and the claim was filed in compliance with law, the plaintiffs, on this record, are entitled to recover the whole amount of such items accrued and unpaid.

The plaintiffs’ action was timely brought pursuant to the provisions of section 4078, Political Code, which permit an action on a rejected claim. (See. 342, Code Civ. Proc.) The decision in the case of Cunning v. County of Humboldt, 204 Cal. 31 [266 Pac. 522], answers the defendant’s contention that the finding of the board of supervisors on factual issues was final and conclusive and cannot be inquired into except for fraud or upon a showing that the board acted in excess of or without jurisdiction. In that case it was said: “In the absence of fraud the approval of a claim by the local board of supervisors is conclusive upon the county. (County of Yolo v. Joyce, 156 Cal. 429, 432 [105 Pac. 125].) However, the converse does not necessarily follow and upon the rejection of a claim by such board the claimant may bring an action at law and establish his claim against the county as fully and effectively as it would have been established by a favorable order of the board in the first instance.”

The defendant does not refer to, nor does there appear to be included in the statute, any limitation upon the jurisdiction of the court in the trial of an action permitted to be brought on a rejected claim pursuant to section 4078 of the Political Code. The absence of any such restriction on the jurisdiction of the court in the trial of the issues in such a ease was thus impliedly recognized by the decision in the ease last above cited. Furthermore, as hereinbefore noted, there is no conflict on any material issue of fact in the present ease. The law, as applied to the undisputed showing, requires a reversal of the judgment.

The judgment is reversed.

Curtis, J., Edmonds, J., Langdon, J., Seawell, J., and Houser, J., concurred.


text:
    [L. A. No. 16626.
    In Bank.
    May 17, 1939.]
    UNION TRUST COMPANY OF SAN DIEGO, Petitioner, v. SUPERIOR COURT OF SAN DIEGO COUNTY et al., Respondents.

      Stearns, Luce, Forward & Swing for Petitioner.
    C. J. Novotny for Respondents.
   THE COURT.

The respondents, as the prevailing parties,

seek to recover their costs in a mandamus proceeding. The petition for the writ was filed in the District Court of Appeal. That court ordered the peremptory writ as prayed. On petition of the respondents the cause was transferred to this court for hearing and determination. This court on June 29, 1.938, denied the writ. (Union Trust Co. of San Diego v. Superior Court, 11 Cal. (2d) 449 [81 Pac. (2d) 150, 118 A. L. R. 259].) On July 29, 1938, the respondents filed a memorandum of costs together with a notice that a motion would be made during the September session of the court for an order allowing costs, directing the issuance of a writ of execution and the ma,nner of collection, and if necessary amending the order denying the writ so as to provide for the allowance of costs. The motion came on for hearing in September as noticed, and was denied from the bench for the reason that counsel for the moving parties did not appear. Upon the insistence of counsel that his absence was inadvertent a rehearing was granted.

Section 1095 of the Code of Civil Procedure provides that the successful applicant for the writ of mandamus is entitled to his costs. This provision was recognized and applied in Gould v. Moss, 158 Cal. 548 [111 Pac. 925], wherein it was held that although costs could be allowed the successful applicant under that section, the judgment must contain an order to that effect; that in the absence of such an order the filing of a memorandum of costs would be of no avail to the prevailing applicant; that it could not be assumed that the judgment, without a special order, would carry costs, and that this section applied to mandamus proceedings, whether begun in the superior court, in the Supreme Court, or in a District Court of Appeal. It was also held that the judgment in that case had long since become final and that, even if the court had power to revise it, no request to that end had been made. (See, also, Kaufman v. Pacific Indemnity Co., 5 Cal. (2d) 761, 769 [56 Pac. (2d) 504]; Clough v. Superior Court, 19 Cal. App. (2d) 745 [65 Pac. (2d) 831].)

On the present motion we are requested to modify the judgment so as to include an allowance of costs, notwithstanding the fact that the order denying the writ had become final before the motion was made. The holding of the Gould ease, above noted, cannot be considered in any sense as an indication that the court, under the circumstances here shown, has the power to revise the judgment after the same has become final. The rule with reference to the prevailing applicant in a mandamus proceeding, commenced in the Supreme Court or a District Court of Appeal, would therefore appear to be that if he desires an allowance for costs, and the judgment does not award them, he should apply to the court for the allowance within such time as will enable the court to pass upon the application and, if costs be allowed, to modify the judgment before the same becomes final.

It is to be observed that section 1095 of the Code of Civil Procedure purports to authorize the awarding of costs to the prevailing applicant only. It may be assumed that a prevailing respondent, pursuant to sections 1027, 1034 and 1110 of the Code of Civil Procedure, is likewise entitled to costs, but the same rule with reference to the time of presenting the cost bill should be made to apply as in the case of a prevailing applicant, namely, that it should he filed within such time as will enable the court to pass upon the application and, if costs be allowed, to modify the judgment to that effect before the same becomes final. The respondents’ application for costs herein was not filed within that time.

Part three, title one, of the Code of Civil Procedure, relates to the special proceedings of review, mandate and prohibition. Chapter Y of that title provides in section 1109 that, except as otherwise provided in that title, the provisions of part two of the same code are applicable to and constitute the rules of practice in the proceedings mentioned in the title, and in section 1110, that “the provisions of part two of this code relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title”.

If the same rules as to costs to the prevailing applicant in a mandamus proceeding be not applied to the prevailing respondent, the sections of this code in part two relative to costs, and incorporated by reference into part three, title one, would be inconsistent with the operation of section 1095, as construed in the Gould ease. When the proceeding is commenced in a District Court of Appeal or in the Supreme Court, no remittitur is issued following the decision and the time for filing a cost bill in such a case cannot, therefore, be governed by the provisions of section 1034 of the Code of Civil Procedure.

Motion denied.