text:
    [S. F. No. 16102.
    In Bank.
    August 31, 1938.]
    RUTH BROWN, Petitioner, v. FRANK C. JORDAN, Secretary of State, etc., Respondent. TESS MARIE SALINE, Petitioner, v. FRANK C. JORDAN, Secretary of State, etc., Respondent.
    [S. F. No. 16096.
    In Bank.
    August 31, 1938.]

      O’Melveny, Tuller & Myers, Walter K. Tuller, Louis W, Myers, Jackson W. Chance for Petitioner in S. F. No. 16102.
    Jay J. Stein for Petitioner in S. F. No. 16096.
    John J. Hamlyn, I. H. Pfaffenberger, Joseph E. Cutten and Lester Stern, as Amici Curiae, on Behalf of Petitioners.
    U. S. Webb, Attorney-General, and Robert W. Harrison, Chief Deputy Attorney-General, for Respondent.
    Carl S. Kegley, John W. Preston, J. Lamar Butler, John Dockweiler, Wm. J. Clark, Culbert L. Olson, Charles E. McGinnis, Sheridan Downey, Allen Miller, Philip C. Boardman,

      Joseph W. Boardman, Lawrence W. Allen, Joseph C. Sharp, Lorenzo Turco, A. D. Orme, Samuel S. Klein, W. C. Dorris and Thomas T. Califro, as Amici Curiae, on Behalf of Respondent.
   THE COURT.

Petitioners, qualified electors and taxpayers of the state, by separate applications, seek writs of mandate directed to the Secretary of State commanding him (1) to refrain from submitting a certain purported initiative measure to the electors of the state, and (2) not to certify the measure to the registrars of voters and county clerks of the state. After the issuance of the alternative writs, the respondent, by way of answer and return, filed general demurrers to the petitions. Proponents of the proposal and certain amici curiae, pursuant to permission by the court, have intervened in the proceeding, and have filed briefs herein. Inasmuch as the two petitions involve substantially the same contentions, both will be disposed of in this one opinion.

The measure which petitioners seek to keep from being submitted to the voters at the next general election is a constitutional amendment proposed under the initiative provisions of the state Constitution. The initiative petition has been signed by the requisite number of qualified electors of the state and has been filed with the Secretary of State within the time entitling it to be submitted at the November election.

Petitioners both contend that the proposal should be kept from the ballot because the circulation title appearing upon each page of the initiative petition whereon signatures appear, does not contain a proper “summary of the chief purpose and points” of the proposed constitutional amendment as required by the provisions of article IV, section 1, of the Constitution and section 1197b of the Political Code. In S. F. No. 16102 petitioner Brown, in addition, urges that the proposed amendment, if adopted, would be clearly, obviously and palpably, violative of various provisions of the federal Constitution; that to permit it to be voted upon would constitute a waste of public funds; that for that reason the proposal should be kept from the ballot. In S. F. No. 16096 petitioner Saline urges, as an additional ground for keeping the measure from the ballot, that the proposed initiative petition is contrary to law in that it includes therein a number of proposed constitutional amendments and that under the initiative provisions of the Constitution this cannot be done. In this connection this petitioner asks that this court reconsider its decision in Wright v. Jordan, 192 Cal. 704 [221 Pac. 915], This last contention is without merit. Substantially the same contention was made by petitioners in Epperson v. Jordan, S. F. No. 16101, ante, p. 61, and Kornmann v. Jordan, S. F. No. 16098, ante, p. 61 [82 Pac. (2d) 445].) In that case it was held that this contention was unsound, and the decision of Wright v. Jordan, supra, was reaffirmed.

There is no necessity of reviewing the provisions of the Constitution and of the Political Code requiring the proponents of an initiative measure to secure from the attorney-general a circulation title to their measure before soliciting signatures. In the Epperson and Kornmann cases, supra, and to some extent in Vandeleur v. Jordan, S. F. No. 16112, ante, p. 71 [82 Pac. (2d) 455], these provisions were quoted and discussed at length. In those cases it was held that in passing upon the legal sufficiency of the circulation title prepared by the attorney-general all presumptions are in favor of the propriety of his actions, and that if reasonable minds may differ as to whether the title contains a proper “summary of the chief purpose and points” of the proposal, the title so prepared must he held to be legally sufficient. Auxiliary and subsidiary matters need not be included in the title. It is this test which must be applied to the title here challenged.

The proposal here involved is quite long. Its provisions cover four legal-size pages, single spaced. It is proposed to add a new article to the Constitution to be numbered article XXXII. This article is divided into 45 sections. The following is a very brief summary of each section. Section 1 provides that this article shall be known as “The California State Retirement Life Payments Act—$30.00 a week for life”. Section 2 states the views of the proponents of the measure as to the purposes of the proposal. Section 3 creates the office of state retirement life payments administrator, and section 4 requires the governor within five days after the adoption of the amendment to appoint one of three named persons to this office who shall serve until 1940, and also provides for what shall happen, if the governor shall fail to act or if one of the three he not available. Section 5 provides that after 1940 the administrator shall be elected for a four-year term. Section 6 confers upon the administrator broad powers to supervise and administer the provisions of the article. Section 7 requires the administrator to print and issue serially numbered warrants to be known as “Retirement Compensation Warrants of the State of California”, and to print and issue serially numbered revenue stamps to be known as “Warrant Redemption Stamps”. The section also provides that the warrants shall be non-interest bearing, self-liquidating, negotiable and transferable without endorsement; that they shall be in the denomination of $1 each, and the number of such warrants shall be limited to the requirements of the article. The stamps shall be in the denomination of two cents each and shall be issued in sufficient quantities to provide for the warrant redemption provisions of the article. The warrants shall have suitable spaces on the backs thereof for the affixing of 52 of the redemption stamps, and shall designate serially where each stamp shall be placed weekly starting the first Thursday after the issuance of the warrant. The section also provides what the face of the warrant must disclose, and confers upon the administrator certain powers in the issuance of such warrants. Section 8 provides that starting 12 weeks after the adoption of this article and for 6 weeks thereafter the administrator shall cause to be issued and paid to each person entitled 15 one-dollar warrants each week, 20 such warrants for the next 6 weeks, and 25 warrants for the next 6 weeks; that starting the 31st week after the adoption of this article not less than 30 such warrants or their equivalent in lawful money shall be paid to each person entitled. This section also provides for the increase in number of such warrants to be paid to each recipient in the event of the increase in price of consumer goods over the average 1937 price. It is also provided that after a desig'nated period the administrator may issue a limited number of such warrants in denominations of $5 and $10 each. Section 9 sets forth the qualifications of those entitled to the warrants—every qualified elector of California 50 years of age or over who is not an employer or employee. Such person must have been a legal resident of California for one year immediately preceding the adoption of this article, or if he becomes a resident thereafter, 5 years residence is required. Section 10 permits each recipient of life payments to give notice of his desire that such payments shall cease. Section 11 provides that each recipient of life payments shall receive them for life provided he retains his qualifications. Section 12 provides that each qualified recipient shall be assigned to a bank or agency in his locality, and the administrator shall issue to him a letter of credit, payment record and identification, drawn on that bank or agency entitling him to his weekly payments. Each such letter of credit shall be valid for 52 weeks, at which time the recipient shall receive a new one. The form of such letter of credit is set forth. Section 13 provides that warrants properly stamped shall be accepted in payment of all debts (specifying some of them) due the state, county, city or political subdivision. Section 14 provides that in the event disbursement officers have sufficient warrants on hand, all wages due state, city, county or other political subdivision employees shall be paid up to 50 per cent in such warrants. Certain limitations on this section are provided. Section 15 requires all state, city, county or political subdivision purchasing agents to insert in contracts of purchase a provision that 50 per cent of the purchase price shall be paid in warrants. Section 16 permits governmental agencies receiving warrants under section 13 to deposit the same with the administrator while section 17 permits new warrants to be issued for soiled or unserviceable ones. Section 18 requires the administrator to redeem warrants properly stamped with 52 stamps, in lawful money of the United States. Section 19 exempts from the sales tax all purchases made with warrants, and from the income tax that portion of income received in warrants. Section 20 requires the administrator to appoint banks as payment agencies, but if they refuse such appointment, then merchants shall be so appointed, and if they refuse then independent offices shall be opened by the administrator as such agencies. Section 21 requires the administrator to deposit with such agencies sufficient warrants so that they can pay to the persons assigned to that agency their warrants each week, and section 22 requires the administrator to deposit with the agencies for sale the required number of stamps. Such stamps shall be sold by such agencies only for lawful money of the United States. Section 23 requires every agency other than a bank to furnish a bond to be paid for by the administrator. Section 24 provides for the compensation of each agent for paying out the warrants and selling the stamps, while section 25 permits banks that receive warrants for deposit to charge a 2-cent per warrant service charge. Section 26 provides for the salary, oath, and a bond of the administrator, while section 27 requires him to appoint four assistant administrators and provides for their salary. Section 28 provides for the employment of various employees by the administrator, for their salaries and the adjustment thereof and for their oath of office. Section 29 provides that the attorney-general shall be the attorney for the administrator. Section 30 provides that until sufficient money is available from the sale of stamps, all operating, administrative and advertising costs, and costs of printing shall be paid from the general fund as requested by the administrator up to $700,000. All sums thus advanced shall be repaid to the state treasury out of excess proceeds resulting from the sale of stamps. Section 31 provides for proceeds from stamp sales to be deposited in California banks. Section 32 places certain restrictions on the number of warrants that shall be issued, and for the repayment of advances made by the state treasurer. Any excess money received from the sale of stamps shall be apportioned to retired beneficiaries as part of their weekly compensation. Section 33 requires the administrator immediately upon the adoption of the article to expend $200,000 for advertising to inform and acquaint the public of the purposes and workings of the plan, to create public confidence in the use of the "warrants and “to stimulate their general acceptance and to urge widespread use of warrants in all fields of employment and business endeavor”. Section 34 provides for what shall be done with redeemed or reissued warrants. Section 35 provides that retirement life payments shall not be alienated and shall be exempt from attachment or execution, nor shall any person receiving life payments be required to use any portion thereof for the support or maintenance of any person over 18 for whom he might otherwise be legally responsible. Section 36 provides that any person receiving life payments must waive any right to receive payments under the old age security law, but he may elect which payments he desires to receive. Section 37 authorizes the administrator to propose amendments to this article to be voted on at either special elections called by the administrator or at the general election. Section 38 provides that “no injunction or writ of mandate or other legal or equitable process” shall ever issue to interfere with the administration of this article or to enjoin or prevent any provision of this article from going into effect. Section 39 provides that the office of administrator shall be nonpartisan and he shall be elected as are other nonpartisan officers, while section 40 provides for what shall happen in the event of the death or retirement of an administrator. Section 41 provides that the warrants, stamps or other printing, at the election of the administrator, shall be printed by the state printer or by private enterprise. Section 42 provides that any person who shall knowingly use, prepare, circulate or distribute, with intent to defraud, any spurious, counterfeit, or altered warrant or stamp is guilty of forgery. Section 43 contains a provision repealing all provisions of the Constitution in conflict with this article, with an additional provision as to what shall happen if any other measure is adopted at the same election in conflict with the provisions of this article. Section 44 defines certain designated terms, while section 45 contains a severability provision.

It is obvious from the above brief summary of the provisions of this proposal that its chief purpose is the issuance to each qualified person, over 50 years of age and not an employer or employee, of thirty one-dollar warrants each week, such warrants being annually redeemed in cash obtained from the sale of redemption stamps, which stamps are to be affixed to such warrants each week. It is also quite clear that in addition to this “chief purpose” of the provision there are various “chief points” aiming towards the accomplishment of the chief purpose. One such point is the provision for the appointment and subsequent election of the administrator; another is the provision to the effect that the warrants are receivable in payment of state or local governmental obligations, and its counter provision, that certain governmental obligations are to be paid in such warrants.

Keeping this main purpose and these main points in mind it is clear that all of them are included within the circulation title prepared by the attorney-general. That title reads as follows:

“RETIREMENT LIFE PAYMENTS. Initiative Constitutional Amendment. Provides for State Retirement Life Payments Administrator, appointed by Governor from three named persons, appointee serving until successor elected in 1940 for four years. Requires State issue retirement compensation warrants, and redemption stamps to be affixed thereon weekly to redeem warrants annually. Requires weekly issuance of at least thirty $1.00 warrants during his life to each qualified California elector fifty years of age not employer nor employed, redeemable in cash by Administrator and receivable in payment of taxes and certain other obligations due to or from State or political subdivisions.”

Petitioners attack this title on many grounds. It is urged that the title is deceptive and tended to mislead the signers, and is legally insufficient in that: taxes are imposed and the title is silent with reference thereto; that the measure appropriates $700,000 out of the general funds of the state which is not disclosed; that the title makes no reference to the power of the administrator to propose amendments and call special elections; that various provisions of the Constitution are repealed by the proposal and that the title is silent as to this fact; that the act provides for cash payments instead of warrant payments under certain conditions, and this the title does not disclose; that the proposal repeals in part the Income and Sales Taxes and the Old Age Security Law and this is not disclosed in the title; that the title does not disclose that public officers and employees must accept one-half of their compensation in warrants; that the title is silent concerning the provision that all public bodies must insert in their contracts of purchase a provision that one-half the price shall be paid in warrants; that the proposal places certain limits on the power of the courts to interfere with the act and this the title does not disclose; that the title makes no reference to the large system of agencies provided for; that the title makes no reference to the provision exempting payments under the act from the claims of creditors; that the title does not disclose clearly that $1.04 must be paid for each $1 warrant or that the stamps must be purchased with cash; that the title does not disclose the $200,000 to be expended by the administrator for advertising.

It is not necessary to consider each of the above objections seriatim in order to demonstrate that the failure to mention them in the title does' not affect the legal sufficiency of the title. Clearly the ‘ ‘ chief purpose and points ’ ’ of the proposal are disclosed by the title. It is true that the proposal contains many provisions of far-reaching importance—many of them listed in the objections of petitioners. Considered separately, many of the provisions of the proposal not disclosed in the title would be of gravest importance. But when those provisions are read in connection with the other provisions of the act it is apparent that those provisions to which reference is not made in the title are subsidiary and auxiliary to the chief purpose and points already enumerated. The proposal is not being made to accomplish those things which were omitted from the title—they all follow along subsidiary to those things disclosed in the title.

If it be conceded that after disclosing the chief purpose and points of the proposal, the title contains references to some provisions of the proposal no more important than some to which reference was omitted, this does not render the title fatally defective. The title need not contain a summary or index of all of the measure’s provisions. Within certain limits what is and what is not an important provision is a question of opinion. Within those limits the opinion of the attorney-general should be accepted by this court.

We have carefully read and considered each of the objections raised by petitioners to the sufficiency of the title and while several of them embody some very important matters, we think all of them are subsidiary and auxiliary to the chief purpose and points of the proposal as disclosed in the title.

As already indicated, petitioner Brown advances the further contention that the measure if passed would be violative of the federal Constitution, particularly article I, section 10 thereof, providing that “No state shall . . . emit bills of credit; make anything but gold and silver coin a tender in payment of debts.” It is urged that for this reason it now should be declared invalid and excluded from the ballot. Assuming that this court has power under some circumstances to prevent submission of an initiative measure to the electorate on the ground that if passed it would be void for unconstitutionality, we are convinced that under all of the circumstances here presented this is not a case for the exercise of such power. For that reason, we refrain from passing on the question of the constitutionality of the'proposed measure.

For the foregoing reasons the alternative writ heretofore issued is discharged, and the peremptory writ is denied.


source: Caselaw Access Project

author: SEAWELL, J.

license: Public Domain

text:
    [Sac. No. 5207.
    In Bank.
    August 31, 1938.]
    CHARLOTTE GABRIELLI, a Minor, etc., Respondent, v. DOROTHY C. KNICKERBOCKER et al., Appellants.

      Otis D. Babcock, District Attorney, and William A. Green, Assistant District Attorney, for Appellants.
    Wayne M. Collins for Respondent.
   SEAWELL, J.

Charlotte Gabrielli, a minor nine years of age and a former student of the Fremont School, a public school in the elementary grades in the city of Sacramento, applied through her guardian ad litem to the Superior Court in Sacramento County for a writ of mandate addressed to the authorities of the Fremont School and the Superintendent of Schools and Board of Education of the City of Sacramento School District to compel her reinstatement as a pupil of the Fremont School. She had been expelled by the respondent authorities for persistent refusal to participate in a ceremony of saluting and pledging allegiance to the flag of the United States. Her refusal was based upon the ground of religious objection to the ceremony. -The respondents have appealed from a judgment directing the issuance of the peremptory writ.

The essential facts have been agreed upon. Petitioner and her father and guardian ad litem, Joseph Gabrielli, are citizens of the United States and reside in the city of Sacramento school district. Petitioner was duly and regularly admitted to and was in attendance upon the Fremont School until her expulsion, which was for the sole reason that she refused to salute the flag of the United States and pledge allegiance thereto, although she was willing to stand quietly and respectfully during the performance of the ceremony by the other children. Participation in this ceremony is required of all students in public elementary schools in the city of Sacramento, although in some of the public schools of elementary grades in the county of Sacramento compliance is not required of students who have religious objections thereto. Petitioner and her father are members of a religious organization known as “Jehovah’s Witnesses”, which teaches that the saluting of and the pledge of allegiance to the flag and government of the United States constitute a form of idolatry and the ascription of spiritual powers of salvation to a man-made symbol and are forbidden by the Bible; hence such acts imperil the salvation of the participant. There is no suggestion that petitioner’s objections are not made in good faith.

In support of her contention that she has been illegally excluded from the Fremont School petitioner argues that her expulsion has deprived her of her right to attend the public schools without due process of law (in violation of amend. XIY, sec. 1, Fed. Const., and art. I, sec. 13, Cal. Const.) ; that it constitutes a denial of the religious liberty guaranteed to petitioner by the California Constitution (art. I, see. 4) and protected by Amendment XIY, section 1, of the Constitution of the United States; and, finally, that it is a denial to petitioner of the equal protection of the laws, forbidden by both state and federal Constitutions. (Cal. Const., art. I, secs. 11 and 21; U. S. Const., amend. XIV, see. 1.)

Since the judgment of the trial court in the instant case the Supreme Court of the United States has twice dismissed appeals taken from state court judgments upholding the validity of regulations requiring the salute and pledge of allegiance to the flag as applied to pupils objecting on religious grounds. (Leoles v. Landers, 302 U. S. 656 [58 Sup. Ct. 364, 82 L. Ed. 507]; Hering v. State Board of Education of New Jersey, 303 U. S. 624 [58 Sup. Ct. 752, 82 L. Ed. 1087].) In view of these decisions it cannot be held that Í application of the regulation requiring the salute to the flag j to members of the group known as Jehovah’s Witnesses is j in violation of rights guaranteed by the federal Constitution. In dismissing the appeal taken from the judgment of the Supreme Court of Georgia in Leoles v. Landers, 184 Ga. 580 [192 S. E. 218], the Supreme Court of the United States rendered the following decision:

“PER CURIAM. The motion of the appellees to dismiss the appeal is granted, and the appeal is dismissed for want of a substantial federal question. (Coale v. Pearson, 290 U. S. 587 [54 S. Ct. 131, 78 L. Ed. 525]; Hamilton v. Regents of University of California, 293 U. S. 245, 261, 262 [55 S. Ct. 197, 203, 79 L. Ed. 343].)” (Leoles v. Landers, 302 U. S. 656 [58 Sup. Ct. 364, 82 L. Ed. 507].)

A similar decision was rendered in dismissing an appeal (Hering v. State Board of Education, etc., supra) from the judgment of the Court of Errors and Appeals of New Jersey in Hering v. State Board of Education of New Jersey, 117 N. J. L. 455 [189 Atl. 629]; Id., 118 N. J. L. 566 [194 Atl. 177]. The court cited in Leoles v. Landers, 302 U. S. 656 [58 Sup. Ct. 364, 82 L. Ed. 507]. In Nicholls v. Mayor and School Committee of Lynn, (Mass.) [7 N. E. (2d) 577, 110 A. L. R. 577], and People v. Sandstrom, 167 Misc. 436 [3 N. Y. Supp. (2d) 1006], state courts upheld the requirement of saluting the flag as applied to pupils objecting on religious grounds. (Contra, Gobitis v. Minersville School Dist., 21 Fed. Supp. 581.)

By reason of the above decisions of the Supreme Court of the United States the question as to whether the flag saluting requirement violates the due process clause of the Fourteenth Amendment to the federal Constitution, or any other provision of the federal Constitution, is no longer open. The due process clause of the Fourteenth Amendment to the federal Constitution and the due process clause of the state Constitution (art. I, sec. 13) both prohibit the state from depriving any person “of life, liberty, or property without due process of law”, which provisions are claimed to have been violated in the instant ease. State courts in interpreting provisions of the state Constitution are not necessarily concluded by an interpretation placed on similar provisions in the federal Constitution. (Sperry & Hutchinson Co. v. State, 188 Ind. 173 [122 N. E. 584, 587]; People v. Budd, 117 N. Y. 1 [22 N. E. 670, 674, 15 Am. St. Rep. 460, 5 L. R. A. 559]; Watson v. State, 109 Neb. 43 [189 N. W. 620, 621]; State of New Mexico v. Henry, 37 N. M. 536 [25 Pac. (2d) 204, 207, 90 A. L. R. 805]; 11 Am. Jur., sec. 105, p. 741; 12 Am. Jur. 259.) But these decisions declare that cogent reasons must exist before a state court in construing a provision of the state Constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal Constitution.

In addition to the due process clause, our state Constitution contains an express guaranty of freedom of religion (art. I, sec. 4). The federal Constitution does not contain a similar express provision protecting “religious” liberty from encroachment by state action. However, the absence of such an express provision does not weaken the force of the federal court decisions, supra, as indicating the rule to be applied in the instant case, for religious liberty is included within the “liberty” protected by the due process clause of the Fourteenth Amendment. (Hamilton v. Regents of the University of California, 293 U. S. 245 [55 Sup. Ct. 197, 79 L. Ed. 343].) In the cited ease, the court upheld a regulation that students at the state university take a course in military science and tactics as applied to petitioners, who objected to enrollment in such a course on religious grounds.

It must be accepted as a postulate, by reason of the subject matter involved in the dismissal of the above cited appeals, that every argument relied upon in the instant case, both for and against the power of appellant board to enforce its action of expulsion as an asserted violation of the religious freedom clause of the federal Constitution, and every argument and reason urged in the many decided cases of the several courts of the country in which the precise question was presented with respect to the violation of said religious freedom clause, came to the cognizance of the United States Supreme Court and was duly weighed by it in the process of reaching the conclusion that no substantial federal question was involved in said appealed cases. The action taken by said court in disposing of said appeals cannot be taken in any other sense than that no violation of respondent’s constitutional right in the instant case has been committed by the act of excluding respondent from attendance at said public school until she shall comply with the rule which she refuses to obey.

We are further of the view that the United States Supreme Court, before making its orders of dismissal, had in mind the principles which were previously enunciated in Davis v. Beason, 133 U. S. 333, 342 [10 Sup. Ct. 299, 33 L. Ed. 637], a searching and exhaustive review of the question before us, from which we make the following brief quotation

“ The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. . . . With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. ’ ’

To the same end may be cited the earlier case of Reynolds v. United States, 98 U. S. 145 [25 L. Ed. 244], and Hamilton v. Regents, etc., supra, .as furnishing further reasons supporting the action of dismissal. The decision in the Reynolds case points out the omission of the Constitution to define the word “religion”. In answering its own question as to what is meant by the religious freedom guaranteed by the Constitution, the court reverts to Mr. Jefferson’s com-meat made at the time of the adoption of the first amendment to the federal Constitution, whereby the Congress was forbidden to make any law “respecting an establishment of religion or prohibiting the free exercise thereof”. The decision incorporates Mr. Jefferson’s comment as an aid to the interpretation of the meaning of said clause, phrased in the following words:

“ . . . I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.”

The paragraph concludes in these words:

“Coming as this does from an acknowledged leader of the advocates of the measure, [Jefferson] it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”

Giving due consideration to the precise constitutional question presented in the cases from which the appeals were taken and the historical background upon which are marked by the supreme law of the nation the limits beyond which the field of religious freedom may not be invaded by unwarranted encroachments of state, it clearly appears that the exactions by the state of social and patriotic duties of the citizens and such other civic duties as may have reasonable relations to the maintenance' of good order, safety and the public welfare of the nation, may not be interpreted as infringements of the religious freedom clauses of either the state or federal organic law. We are, therefore, of the view that the rule prescribed by the board does not abridge any of petitioner’s constitutional rights by excluding her from attendance at the Sacramento city public school until such time as she shall comply with the rule which she refuses to obey.

The legislature has conferred upon school boards broad plenary powers to make all reasonable regulations that will in the reasonable exercise of judgment promote the efficiency of the school system in performing public welfare duties, which are limited not merely to the development of the mind in academic fields, but the sphere of which is much broader and extends to those subjects which will tend to develop and quicken the civic conscience in ways of attachment for home and country. It is only where its regulations are clearly shown to be in violation of the fundamental law that the courts, even though entertaining a different opinion from that of the governing boards as to the wisdom or expediency of adopting social regulations, may annul them. Many authorities may be cited sustaining the action of school boards in matters in which the wisdom of the board’s action may be so highly controversial that reasonable minds might well be divided as to the wisdom of the board’s action. In such cases, its action is conclusive.

We see no violation of any article of the .federal or state Constitutions in its exercise of power in the instant case. The training of school children in good citizenship, patriotism and loyalty to state and nation is regarded by the law of the state as a means of protecting public welfare and is directed by the school code of the state. (Sec. 5.544.) The simple salutation to the flag and the repetition of the pledge of allegiance, in the judgment of the proper governing body, tend to stimulate in the minds of youth in the formative period of life sentiments of lasting affection and respect for and unfaltering loyalty to our government and its institutions.

The judgment is reversed and the writ is discharged.

Waste, C. J., Curtis, J., Langdon, J., Edmonds, J., Houser, J., and Shenk, J., concurred.

Rehearing denied. Houser, J., voted for a rehearing.


author: WASTE, C. J.

text:
    [Misc. No. 1467.
    In Bank.
    September 1, 1938.]
    In the Matter of the Disbarment of GAVIN W. CRAIG, an Attorney and Counselor at Law.

      Frank B. Belcher, Warren E. Libby, Gurney E. Newlin and Philbrick McCoy for The State Bar of California.
    John P. Beale, Leonard Thomas and Daniel M. Hunsaker for Respondent.
    J. Wiseman Macdonald as Amicus Curiae on Behalf of Respondent.
   WASTE, C. J.

The State Bar of California, a public corporation created by the Act of March 31, 1927 (Stats. 1927, p. 38), filed in this court its petition praying, under section 289 of the Code of Civil Procedure, that Gavin W. Craig, formerly an Associate Justice of the District Court of Appeal of the Second Appellate District of the State of California, be permanently disbarred from the practice of the law in this state. A certified copy of a record of conviction of said Craig of a crime involving moral turpitude was filed with the petition.

In the petition it was alleged that said Gavin W. Craig was admitted to practice by the Supreme Court of the State of California on or about April 9, 1901, and ever since had been and at the time of the filing of the petition was an attorney and counselor at law licensed to practice in all the courts of this state. It was further alleged that theretofore, and on or about May 8, 1935, said Gavin W. Craig was in-dieted in the District Court of the United States for the Southern District of California, charged with the crime of felony, to wit, a violation of section 88 of title 18 of the United States Code, in that he, with certain other defendants therein named, did conspire to obstruct and impede the due administration of justice; that on due trial on the charges contained in said indictment the jury returned a verdict of guilty, and judgment was thereupon entered assessing a fine of one thousand dollars and ordering that the defendants be confined in jail for the period of one year; that thereupon an action in quo warranto was commenced by the attorney-general of the state of California in the name of The People, based on section 996, subdivision 8, of the Political Code, praying for a judgment declaring and decreeing that the defendant’s office as such Associate Justice of the District Court of Appeal of the Second Appellate District had become vacant, and praying that he be ousted and excluded therefrom; that defendant Craig answered the complaint, denying and putting in issue the allegations thereof, and alleging that he had never been impeached or removed by legislative action from office as such Associate Justice, nor otherwise in the manner provided by law, nor at all; that judgment in said cause was given and entered that the office of Associate Justice of the District Court of Appeal, Second Appellate District, Division Two, had become vacant by reason of the conviction of the defendant Gavin W. Craig of a felony; that said Gavin W. Craig had not, since the date of the conviction, had any lawful right to any public civil office, and that he unlawfully held and exercised the office of Associate Justice of the District Court of Appeal of the Second Appellate District, and continued to hold the same without right.

Respondent Gavin W. Craig appealed to this court from the judgment just noted. Before the appeal was finally determined, respondent filed with the governor of the state his resignation as an Associate Justice of the District Court of Appeal of the Second Appellate District. Upon this fact being admitted in open court by the appellant, the court, of its own motion, raised the question whether or not, by reason of such resignation, the office had become vacant and the sole question presented by the action in quo warranto brought by the attorney-general had become moot. After consideration of the points and authorities filed by the parties on this point, the court concluded that the question had been settled and disposed of by the resignation of the alleged unlawful occupant of the office, and that the matter had become moot. The appeal was therefore dismissed.

In the meantime, this proceeding had been filed, seeking disbarment of respondent Craig as an attorney and counselor at law. In response to the order to show cause issued therein, the respondent appeared and demurred to the petition and filed objections to disbarment. In addition to general grounds of demurrer, the respondent attacks the jurisdiction of this court to suspend or disbar him as an attorney and counselor at law and to strike his name from the rolls, contending that he was, at the time he was convicted in the United States court, a duly elected, qualified and acting Justice of the District Court of Appeal, and on the further ground that, for like reasons, The State Bar of California had no power or authority to file the petition. As a further ground of demurrer the respondent contends that it cannot be ascertained from the petition whether or not the respondent was convicted of a crime involving moral turpitude.

The various grounds of demurrer must be overruled. The present proceeding is one to disbar an attorney at law who at one time held judicial office and who, of his own volition, resigned therefrom. His prior status as a Justice of the District Court of Appeal, if it had any bearing on the matter (which we fail to see), passed out of the picture on respondent’s resignation from his judicial position. In order to be eligible to hold the office as Justice of the District Court of Appeal, respondent was required to be admitted to practice law (Const., art. VI, sec. 23); but, while he held the office, he was not entitled to practice. (State Bar of California v. Superior Court, 207 Cal. 323, 336 [278 Pac. 432].)

Section 287 of the Code of Civil Procedure provides that an attorney and counselor may be removed by the Supreme Court upon his conviction of a felony or misdemeanor involving moral turpitude, in which case the record of conviction shall be conclusive evidence. The certified copy of the record of conviction of respondent in the United States District Court, and subsequent affirmation by the Supreme Court of the United States, supports the allegations of the petition as to the nature of the offense for which respondent was convicted. It is respondent’s contention that the offense with which he was charged and the purported judgment upon which he was convicted do not relate to an offense against the penal laws of the state of California. Assuming the correctness of the contention as applied to respondent’s personal relations, it has no force in this proceeding. This court has held that conviction of an attorney and counselor at law of a felony or misdemeanor involving moral turpitude in a court of this or of another state or any court of the United States is ground for his disbarment, and the record of conviction is conclusive evidence of such conviction. (Barnes v. District Court of Appeal, 178 Cal. 500, 504 [173 Pac. 1100]; In re O’Connell, 184 Cal. 584 [194 Pac. 1010].)

Moral turpitude has been defined by many authorities as an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. (In re O’Connell, sxipra.) Bouvier defines turpitude as “everything done contrary to justice, honesty, modesty, or good morals”. (In re Coffey, 123 Cal. 522, 524 [56 Pac. 448]. See, also, 3 Cal. Jur. 732, par. 126.) In the O’Connell case, supra, the attorney engaged in a conspiracy to impede and obstruct the laws of the United States relating to the enlistment of soldiers in war-time. We entertain no doubt that the offense of conspiring to corruptly influence, obstruct, impede, hinder and embarrass the due administration of justice, with which respondent was charged and of which he was convicted in the United States District Court, falls easily within the definition of “moral turpitude”.

Respondent has devoted the greater part of his arguments to developing the contention that the legislature is without power to provide by general law for the disbarment of a Justice of the District Court of Appeal under the provisions of section 18 of article IV of the Constitution. We deem it unnecessary to discuss the contention for, as herein-above stated, the respondent, by his voluntary act of resignation, ceased to be an Associate Justice of the District Court of Appeal. Therefore, the provisions of section 18, article IV, supra, and the maxim “inclusio unius est exclusio alterius”, upon which respondent relies, have no application to his case.

Respondent’s demurrer is overruled. Let an order be entered disbarring respondent as an attorney and counselor at law in the courts of this state, effective thirty days from filing hereof.

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

Houser, J., deeming himself disqualified, did not participate.


author: HOUSER, J.

text:
    [Sac. No. 5130.
    In Bank.
    September 1, 1938.]
    ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, LTD., Plaintiff, v. ANNA KINSLER et al., Defendants; KEITH C. EVERSOLE, Cross-Complainant and Appellant, v. MAURICE E. KINSLER et al., Cross-Defendants and Respondents.

      W. H. Brunner for Appellant.
    Carlton D. Dethlefsen and Harry W. Horton, as Amici Curiae on Behalf of Appellant.
    Phillips & Munck and James H. Phillips for Respondents.
   HOUSER, J.

The pertinent facts herein appear to be that following a personal injury which theretofore she had sustained in an accident, the defendant Mrs. Anna Kinsler, employed the defendant Eversole as an attorney at law to bring an action for the purpose of recovering a judgment against the person who was asserted to have been negligent in having-caused said accident to occur. By the terms of the said contract, the compensation therein provided to be paid to said Eversole was contingent and, in effect, provided that the latter was to be paid for the services which he thereafter might render to Mrs. Kinsler in said matter to the extent and in the amount of one-third of whatever judgment that might be rendered in the action in her favor. Eversole not only brought the action, but also performed other services in connection therewith, which included his presence and services in the taking of the deposition of Mrs. Kinsler. Thereafter, by reason of certain misconduct asserted to have occurred on the part of Eversole, Mrs. Kinsler notified him that he was discharged from thereafter acting as her attorney in the action. Three days after having received such notice of said discharge, on the initiative of Mrs. Kinsler, Eversole consented in writing to the substitution of other attorneys in the litigation,—at the same time, in substance, orally informing Mrs. Kinsler that he waived none of his legal rights which purportedly had been conferred upon him by the terms of his contract of employment.

The result of the subsequent trial of the action was that Mrs. Kinsler was awarded a judgment for the sum of $2,000; which amount the insurer of the judgment debtor deposited in court and thereupon brought the instant action by which Mrs. Kinsler and Eversole were interpleaded for the purpose of having their respective rights in said sum determined by the court. From a judgment that was rendered in that action in favor of Eversole for the sum of $75 he has appealed to this court.

For the reason that such statutory provisions as are contained in section 284 of the Code of Civil Procedure, as amended in 1935, were not a part of that statute at the time when the rights of the respective parties herein accrued, it becomes unnecessary to devote attention to any of such provisions.

By the force of a number of decisions which heretofore have been rendered by the appellate courts of this state, the law which has obtained with reference to a situation such as is presented by the instant record appears to have been well established to the effect that where, with respect to compensation for services thereafter to be performed, an attorney who was employed under a contingent contract, dependent upon the successful outcome of the particular business in which such services were proposed to be rendered, was discharged “without cause”,—in an action for damages for such breach of contract thereafter brought by the attorney against his former client,—based upon the amount recovered in the action in which the attorney was discharged, he was entitled to recover a judgment for the full amount that was provided by the terms of such contract. (Baldwin v. Bennett, 4 Cal. 392; Webb v. Trescony, 76 Cal. 621 [18 Pac. 796]; Countryman, v. California Trona Co., 35 Cal. App. 728 [170 Pac. 1069]; McCully v. Gano, 116 Cal. App. 695, 698 [3 Pac. (2d) 348]; see, also, as recognizing the rule: Green v. Sherritt, 17 Cal. App. (2d) 732, 736 [62 Pac. (2d) 769]; Elconin v. Yalen, 208 Cal. 546, 549 [282 Pac. 791]; Kirk v. Culley, 202 Cal. 501, 506 [261 Pac. 994].)

That part of the law which is applicable herein being established, the remaining question for determination relates to whether the attorney was discharged “without cause”.

With respect to a determination of whether the discharge of an attorney has been “without cause”, it is obvious that no precise act or fixed line of conduct on the part of the attorney may be accurately defined or specified as furnishing a sufficient reason for an application of the rule against him. Manifestly, “cause” which in legal contemplation would justify the cancellation of a contingent contract for compensation on account of legal services thereafter to be rendered, necessarily would have to depend upon the particular circumstances that were present in each case. In that regard, it is not improbable that its determination very properly might relate to “time, place and persons”. A single act which had occurred at a certain time, at a designated place, and in the presence of specified persons, in all propriety might possibly be termed entirely out of keeping with the orderly and dignified conduct by which an attorney should demean himself, under different circumstances might present an entirely different aspect. It thus may become apparent that the question whether “cause” for the abrogation of such a contract exists or has existed may be one of fact; and it also should be clear that in connection with the facts which may be established, a legal question as to their sufficiency is more than likely to ensue. That is to say, that a conclusion with reference to the ultimate question of fact necessarily must rest upon substantial and sound reasons therefor, and not be made to depend upon mere whim, caprice, or arbitrary judgment. It is apparent that to judicially declare, without limitation, that for “cause” a covenant of contingent compensation to be paid to an attorney may be broken with impunity and without consequent pecuniary liability, in itself is so broad, elastic and so lacking in desirable precision, that if unrestrained and unrestricted would be but to open the door to the perpetration of fraud. The “cause” must be not only “good”, but it also must be legally sufficient. As was said in Cummer v. Butts, 40 Mich. 322, 325 [29 Am. Rep. 530], “good cause”, as used in a contract stipulating that it might be canceled by either party for good cause, “has no such distinct sense as to furnish a common and intelligible criterion for the parties, or any determinate sense whatever ’ ’. Also in the case of State v. Common Council of City of Duluth, 53 Minn. 238 [55 N. W. 118, 120, 39 Am. St. Rep. 595], it is said, “ ‘Cause’ or ‘sufficient cause’ (to authorize a removal from office of a city officer) means ‘legal cause’, and not any souse which the council may think sufficient.” Where, however, it appears that conduct of an attorney has been such that by reason thereof, the dignity of the profession has been seriously affronted with respect and germane to the subject matter of the contract, “good cause” may exist; and in that connection, acts of impropriety that clearly are inconsistent with a faithful, proper and dignified discharge of his duties as an attorney and officer of the court, may furnish a sufficient justification for the termination of a contract of employment. (Ingersoll v. Coal Creek Coal Co., 117 Tenn. 263 [98 S. W. 178,119 Am. St. Rep. 1003, 10 Ann. Cas. 829, 9 L. R. A. (N. S.) 282]; Hoboken Trust Co. v. Norton, 90 N. J. Eq. 314 [107 Atl. 67]; 7 C. J. S. 1026.)

With such legal principles in mind, an examination of the record for the purpose of ascertaining in detail the existence of the particular facts upon which the judgment, from which the instant appeal has been taken, was founded, of necessity must be considered:

(a) It appears that on the evening of the day that preceded the date when the deposition of Mrs. Kinsler was to be taken, she went to Eversole’s office, and in the course of a conversation then and there had between them she inquired of Ever-sole, “What do you think they will ask me?” As testified by Mrs. Kinsler, “He said, ‘I don’t know, might ask you anything; might ask you if you had corn flakes for breakfast, I can’t tell you what they will ask you.’ ‘Well’ I said, ‘I meant I wanted to know what sort of answers’, one can frequently get themselves terribly tangled up, and I wanted to know what sort of answers and questions might be asked, and he said he didn't know, have to wait till the(y) asked me, and then I said ‘Well there were a number of things I wanted clear in my mind’ and I spoke about that, and he said, ‘Oh anyone as smart as you, to ask questions like that, you know the answers, you know, Mrs. Kinsler you can take care of yourself, you are quite a talker, aren’t you?’ ”
(b) On the taking of her deposition, when in response to a question as to whether she was married, and Mrs. Kinsler had answered in the affirmative, Eversole interposed the remark, “Oh, that’s going to be my next case for Mrs. Kinsler, her divorce.”
(c) At another conversation that occurred between the parties, as testified by Mrs. Kinsler, “I asked him if anything had been done, and I mentioned I had learned about Mr. Anker, (the defendant in the action), and his driving, thinking it might be relevant, and he said if I would go out and dig up all the dirt I could about Lou Anker ‘and bring it in here, we will produce it in court, the judge may not allow it, but it will have its effect upon the jury’.”
(d) The record discloses the further fact that the contingent fee contract contained a provision that Anna Kinsler and Maurice Kinsler “are to advance all outlays required in cash during the pendency of the litigation upon demand therefor; . . . ” In that connection, shortly after her deposition had been taken, Mrs. Kinsler testified, “Mr. Eversole said we must have a jury trial, because he said ‘you are better off with a jury, in any jury picked in Mendocino County, at least two men on that jury would know that Lew Anker drinks’. I also said I felt I couldn’t stand the expense of a juiy trial, I had no money, and I asked him the approximate cost of a jury and he told me, and when I learned it might run into several hundred dollars I said I had no money. And he said ‘you make me sick, alwaj^s crying like you didn’t have an egg left in your basket’. I told him the ranch was mortgaged to the fullest extent and we eouldn’t do anything about that and he said ‘Well, we can’t do anything without a jury, and we will have to have it.' Q. State whether or not you specified it to be tried before the Court? A. I said I couldn’t have a jury, if I had a case I was willing it should stand on its merits. . . . Q. And you stated you would have to have a trial by the judge? A. Yes. . . . Q. And he told you at that time that he wouldn’t take the case unless there was a jury trial? A. Yes. Mr. Phillips: Wouldn’t continue to take the case. Mr. Brunner: I accept your amendment. Q. That he wouldn’t continue with the case unless there was a jury trial? A. Yes.”

It will thus be observed that the substance of such asserted “professional” misconduct is:

(1) that Eversole declined tp take seriously Mrs. Kinsler’s inquiry as to what questions would be asked her on the taking of her deposition, but that at the same time he complimented her on her ability “to take care of herself”;
(2) that in the presence of third persons he made a facetious remark with reference to a possible divorce suit that thereafter might be instituted between Mrs. Kinsler and her husband;
(3) that in response to information that voluntarily had been given by Mrs. Kinsler to Eversole regarding the defendant in the action, Eversole told her to “go out and dig up all the dirt” she could about the said defendant;
(4) that in accordance with the provision of the written agreement between the parties, Eversole insisted that Mrs. Kinsler produce sufficient cash to meet the expense of trying her case before a jury.

Incidents, such as those to which reference just has been had, are not uncommon to the practice of nearly every lawyer of extensive trial experience. Of course, it was but natural that Mrs. Kinsler should be interested in ascertaining, if possible, how she should demean herself at a time when her deposition was about to be taken; but for her to anticipate that her attorney would specifically inform her regarding “what sort of answers” she should give to questions that might be propounded to her, in itself constituted an insinuation that well might have been considered an imputation or suggestion regarding Eversole’s possible lack of integrity or his lack of observance of ethical conduct. In such circumstances, his forbearance was commendable, and his response not inappropriate. On the occasion when Eversole made the unfortunate remark with reference to a possible divorce suit for Mrs. Kinsler, although perhaps embarrassing to her, it was evident that no offense was intended, but that to the contrary, as was testified by Eversole, it was meant merely as facetious; and probably was just his way of “trying to be funny”, It also is clear that the incident regarding the production by Mrs. Kinsler of sufficient money with which to pay the expense that necessarily would be incurred in a trial by jury, was of no great importance. It is common experience that attorneys and their clients frequently differ and even violently disagree between or among themselves with reference to the conduct or the procedure which should relate to the trial of the action. However, it is well established law that the attorney has complete charge and supervision of the procedure that is to be adopted and pursued in the trial of an action; and in accordance with that law, if Ever-sole wished to have a jury trial he had a right to insist that the trial be so conducted. In the case entitled Price v. McComish, 22 Cal. App. (2d) 92 [70 Pac. (2d) 978], the court said that, subject to the rule that an attorney in the conduct of a ease may not impair the substantial rights of his client, nevertheless, “ ... it is well established that, especially in what may be termed purely procedural matters ... an attorney is fully authorized” to bind his client. (See, also, 6 C. J., p. 643; Deitz v. Bolch, 209 N. C. 202 [183 S. E. 384]; 3 Cal. Jur., pp. 653, 654; Armstrong v. Brown, 12 Cal. App. (2d) 22 [54 Pac. (2d) 1118]; Lally v. Kuster, 177 Cal. 783 [171 Pac. 961]; Boca etc. R. R. Co. v. Superior Court, 150 Cal. 153 [88 Pac. 718]; Anglo California Trust Co. v. Kelly, 95 Cal. App. 390 [272 Pac. 1080]; Electric Utilities Co. v. Smallpage, 137 Cal. App. 640 [31 Pac. (2d) 412].) And again in the case entitled Union Central Life Ins. Co. v. Anderson, 291 Ill. App. 423 [10 N. E. (2d) 46, 52], the court said, “When one puts his case in the hands of an attorney, it is a reasonable presumption that the authority conferred includes such actions as the attorney, in his superior knowledge of the law, may decide to be legal, proper, or necessary in the prosecution of the suit. . . . Attorneys may ... of necessity make disposition of many things that arise in and about the trial of cases.” Also, in the recent case entitled Shores Co. v. Iowa Chemical Co., 222 Iowa, 347 [268 N. W. 581, 106 A. L. R. 198], wherein defendant’s attorney waived a jury trial, allegedly without the knowledge or the consent of the defendant, and thereafter defendant’s motion for a jury trial was overruled, the court set forth in a clear and complete manner a statement showing the extent of authority conferred upon an attorney in the conduct of an action, as follows: “When one hires an attorney to represent him in litigation, that attorney has full charge of the case as far as procedure and remedy are concerned. He is trained and skilled in the law. A client has no knowledge of procedure and intrusts this to the attorney he employs. In 2 Ruling Case Law, section 63, page 986, we find the following: ‘An attorney of record, by virtue of his employment as such, subject to the approval of the court, has implied 'authority to do all acts necessary and proper to the regular and orderly conduct of the case, and affecting the remedy only and not the cause of action, and such acts, in the absence of fraud, will be binding on the client, though done without consulting him, and even against Ms wishes.’ (Italics added.) In 6 C. J., section 146, at page 641, it is said: ‘The general implied authority of an attorney by virtue of his employment includes the doing on behalf of his client of all acts in or out of court necessary or incidental to the transaction or management of the suit, or to the accomplishment of the purpose for which he has been retained, and which affect only the remedy and not the cause of action. The choice of proceedings, the forum, the manner of trial, and all matters of procedure, and the like are within the sphere of his general authority, and as to these matters his client is bound by his action. ’ In 6 C. J., section 147, at page 643, it is said: ‘The line of demarcation between the respective rights and powers of an attorney and his client is clearly defined. The cause of action, the claim or demands sued upon, and the subject matter of the litigation are all within the exclusive control of a client; and an attorney may not impair, compromise, settle, surrender or destroy them without his client’s consent. But all the proceedings in court to enforce the remedy, to bring the claim, demand, cause of action or subject matter of the suit to hearing, trial, determination, judgment and execution are within the exclusive control of the attorney. ’ In the recent case of State v. Froah, reported in 220 Iowa, 840, at page 845 [263 N. W. 525, 528], this court said: ‘The specifications of powers of an attorney contained in the Code do not exclude all other powers. ’ Ohlquest v. Farwell & Co., 71 Iowa, 231 [32 N. W. 277, 279], speaking of the powers of an attorney, says: ‘ “But he is, by his general employment, authorized to do all acts necessary or incidental to the prosecution or defense which pertain to the remedy pursued. The choice of proceedings, the manner of trial, and the like, are all within the sphere of his general authority, and, as to these matters, his client is bound by his action.” Rhutasel v. Rule, 97 Iowa, 20 [65 N. W. 1013].’ ”

It follows that Mrs. Kinsler, having theretofore agreed to advance the necessary moneys for the expenses of the action, had no just right to complain of the fact that some time prior to the date when the action was to be tried Eversole had demanded performance of that condition, or that on her failure to do so he would retire as her counsel; but in that regard it is noteworthy that the question was left open and undetermined by the respective parties.

Apparently, the only really untoward incident that occurred during the course of the business relations that existed between the parties was that wherein Mrs. Kinsler asserted that Eversole suggested that Mrs. Kinsler “go out and dig up the dirt” about her legal opponent and that although such evidence properly might not be admissible on the trial of the action, nevertheless it would be “produced” and have an effect on the jury that would be unfavorable to the defendant. Unfortunately, it is a well-known fact that such conduct on the part of some attorneys is not infrequently observable in the trial of both civil and criminal actions. It is none the less unethical on that account. However, in that regard, as appears in the record herein, Eversole's testimony in that connection did not square with that which was given by Mrs. Kinsler. He testified as follows: “Q. Did you ever at any time tell Mrs. Kinsler to go out and dig up all the dirt she could about Anker? A. No ‘digging up dirt’ isn’t an expression of mine. I did tell her it was very important in this case what I know of Mr. Anker and what she herself told me about previous acts of Mr. Anker, she could help by finding out all about Anker. I was under the impression he had been in numerous accidents before—under the impression that he had been driving in a drunken condition often and had been picked up for that, and what she might secure would help very greatly. I never told her to go out and ‘dig up dirt’, I don’t use that expression, it's not one of my expressions, I wouldn’t say ‘dig up dirt’, as far as I remember I told her to dig up all she could, that’s what I told her to the best of my recollection. Q. Did she ever tell you that she thought that you should do that, that you were the attorney in the ease? A. Not until here on the stand yesterday. On the contrary Mr. Brunner, she said she would. Q. Did she bring in to you after that, as a result,—withdraw that. Q. After that conversation did she bring in to you any information about Anker? A. I think not, I wouldn’t be positive to that. She may have. At any rate, if she did, it was to a very small extent. Wouldn’t impress itself upon my memory.”

In any event, from the fact that Bversole was discharged before the trial took place, it becomes evident that he did not actually produce inadmissible “dirt” for the purpose of improperly affecting the or any verdict that might be returned by the jury. At most, Bversole’s “unprofessional” conduct (if any) consisted merely in the making of an unethical suggestion that never was acted upon in any way by either of the parties. On her own initiative, Mrs. Kinsler already had busied herself in “digging up the dirt”, and even conceding that Bversole intimated that she continue along that line, it is unlikely that Mrs. Kinsler could have been greatly shocked by Bversole’s conduct in that regard.

According to each of the asserted grievances upon which Mrs. Kinsler has relied the greatest weight to which in reason and good conscience it may be entitled, it amounts to nothing more than a triviality. Nor can all of them combined produce the effect of that substantiality in “professional” misconduct that is so properly demanded even for judicial censure. No one even approaches perfection either in his professional expression or in his official demeanor as an attorney and officer of the court. In truth, there is “so much bad in the best of us” that the faults of anyone should be rather glaring and clearly unethical before others may be justified even in indulging in serious adverse criticism thereof, much less, in adjudging drastic penalties as punishment therefor. In the instant case it results that the evidence upon which the judgment depended was insufficient to furnish legal support for the finding and conclusion of law that Bversole was discharged as an attorney for “good and sufficient cause”.

The judgment is reversed. In addition thereto it is ordered that consistent with the views hereinbefore expressed, the cause be and it is remanded to the superior court for the sole purpose of determining, in accordance with the provisions of the contract between the parties, the amount of money as attorney’s fees in the original action, and the damages as attorney’s fees in the instant action, if any, to which Eversóle may be entitled and thereupon to pronounce its judgment in consonance therewith.

Langdon, J., Edmonds, J., Shenk, J., Curtis, J., and Waste, C. J., concurred.

A rehearing was denied on September 1, 1938, and the judgment was modified to read as above.


author: THE COURT.

text:
    [Sac. No. 5094.
    In Bank.
    September 1, 1938.]
    L. A. BACCIOCCO et al., Appellants, v. W. H. CURTIS et al., Respondents.

      Preston & Preston, J. Elmer Barricklo and L. C. Smith for Appellants.
    Carter, Barrett, Finley & Carlton for Respondents.
   THE COURT.

On this rehearing, we adopt that part of our former decision setting forth the facts and issues, as follows:

“This is an action to set aside as fraudulent a conveyance from defendant husband to defendant wife and to subject the property to plaintiffs’ judgments. The trial court denied any relief to the plaintiffs and awarded to the defendant W. H. Curtis judgment in the sum of $6,400 on the fourth cause of action pleaded in his cross-complaint. The plaintiffs have appealed from the entire judgment.
“In February, 1923, Reuben Kern leased to A. G. Steel-man property in San Francisco to be used for a garage and Steelman executed a chattel mortgage to secure the covenants of the lease covering all the equipment and fixtures placed in the premises by the lessee or his assigns. Thereafter the plaintiffs purchased the property from Kern, and on November 30, 1926, leased the premises to defendant W. H. Curtis for a period of ten years, at a total rent of $114,000, payable $950 per month. To secure performance of the lease Curtis acknowledged the existence of the chattel mortgage on the fixtures of the garage and also the payment to plaintiffs under paragraph XVII of the lease of the sum of $5,000, denominated a ‘bonus for the lessor’s execution of this lease’. The lease provided that so long as there was no default by the lessee, the lessors would allow him semi-annually a sum equal to interest at the rate of 6 per cent per annum on the said $5,000, and that in the event of full performance the $5,000 would be credited on the rent for the last five odd months of the term.
“On June 22, 1930, upon written consent of plaintiffs, the lease was assigned by Curtis to Steelman and Pike, Curtis expressly agreeing to remain liable on the covenants thereof. On February 25, 1931, with plaintiffs’ written consent, the lease was assigned by Steelman to Pike, the assignor expressly agreeing to remain liable on all covenants. For the months of April, May and June, 1931, neither Curtis, Steelman nor Pike made any rental payment.
“On November 12, 1930, Curtis secured, as lessee, a 15-year lease on two lots in Redding, Shasta County, which property he improved and operated as the ‘A-l Motor Court’. On June 16, 1931, Curtis conveyed to Clara E. Curtis, his wife and codefendant herein, all his interest in the A-l Motor Court, including the leasehold and improvements. It is this conveyance which plaintiffs, by this action, would set aside as in fraud of their rights as creditors.
“One day after the conveyance was made, on June 17, 1931, plaintiffs served on Curtis, Pike and Steelman, with respect to the San Francisco garage, the three-day statutory notice to quit, and on June 22, 1931, plaintiffs gave written notice of termination of the lease. The next day, June 23, 1931, plaintiffs filed in the San Francisco superior court an action in unlawful detainer against W. H. Curtis, Pike and Steelman, seeking restitution of the garage premises, rent for April, May and June, and attorney’s fees. Separate answers were filed by W. H. Curtis and the other two defendants, alleging special defenses, such as the existence of the chattel mortgage given to secure performance of the lease, an agreement of sale dated July 25, 1930, whereby W. H. Curtis transferred to his codefendants all his interests in the personal property located in the garage, and an agreement of plaintiffs to release W. H. Curtis of all liability under the lease in consideration for the transfer to plaintiffs of the unpaid balance due on this contract of July, 1930. Trial of the action resulted in a judgment for plaintiffs, which became final on January 5, 1932.
“On June 29, 1932, plaintiffs commenced a second action against the same defendants, Curtis, Pike, and Steelman, for foreclosure of the chattel mortgage. Curtis defaulted, and on September 1, 1932, a decree of foreclosure was entered for plaintiffs as against all of the defendants, in the sum of $3,095.48 plus $250 attorney fees, interest and costs. A foreclosure sale was had at which plaintiffs bought in the property for about $25, and on September 21, 1932, a deficiency judgment was filed in their favor and against defendants for $3,564.80, with interest. On March 29, 1933, Steelman was adjudicated a bankrupt, with estate of no value, and on February 9, 1934, a writ of execution against Pike was returned unsatisfied. On July 6, 1933, writ of execution against Curtis directed to the sheriff of Shasta County was likewise returned wholly unsatisfied.
“O'n June 18, 1934, plaintiffs commenced this present action against Curtis and his wife to set aside his conveyance to her on June 16, 1931, of his interest in the A-l Motor Court at Redding. The complaint, based on sections 3439, 3440 and 3442 of the Civil Code, alleged that the conveyance was unaccompanied by any real change of possession, made without filing of the statutory notice of transfer required by section 3440 of the Civil Code, and with intent to defraud creditors at a time when Curtis was financially impotent and knew that he had already been indebted to plaintiffs for three months and that the unlawful detainer suit was about to be instituted by plaintiffs, and that no relief could be secured from Pike and Steelman. The prayer of the complaint was that the transfer be declared fraudulent and void; that defendants be restrained by injunction from interfering with the property or its proceeds (in January, 1934, the Curtises had sold a portion of their interest in the motor camp to the Shell Oil Co.) except under direction of the court, and that plaintiffs’ judgments be satisfied out of it, and for general relief.
“To plaintiffs’ complaint defendants Curtis and wife filed an answer setting up a number of affirmative defenses, an amended answer, amendments thereto, and W. H. Curtis filed a cross-complaint alleging four causes of action, the fourth cause being later amended to conform to proof. On the subject of fraud, defendants averred that the wfife paid the husband, as consideration for the transfer, $5,480 from her separate assets which sum he used to pay creditors; also that the conveyance was accompanied by an immediate change of possession. Another separate defense was that for a valuable consideration plaintiffs had agreed with and promised defendant Curtis that they would not attempt to enforce against him the judgment obtained by them in the prior unlawful detainer action. The gravamen of the charge in the four causes of cross-complaint was that at the time plaintiffs secured judgment in the prior action in unlawful detainer, they converted personal property of Curtis worth $5,000 and also held unforeclosed the chattel mortgage given to secure performance of the lease covering $5,000 worth of other property in the garage, which property they took possession of and converted to their own use, and yet when they purported by the second action to foreclose the chattel mortgage and to sell the property at a purported foreclosure sale to themselves for $25.50, they allowed Curtis no credit on account of the indebtedness under the lease, or in satisfaction of the judgment obtained in the first action, notwithstanding the value of the property was sufficient to satisfy in full both said indebtedness and said judgment. Furthermore, the cross-complainant alleged (fourth cause of action as amended to conform to proof) that when on June 30, 1931, the lease was terminated by mutual consent with $2,825 due for unpaid rent thereunder, and Curtis permitted plaintiffs to have possession of said $5,000 worth of personal property, thus discharging the $2,825 obligation. Curtis thereupon became entitled to receive back from plaintiffs the $5,000 which he originally deposited with them upon execution of the lease.”

A number of questions are raised and argued in the briefs, but in our opinion two of them are determinative of the case and these alone need be discussed here.

The first point is that the alleged fraudulent transfer was not, in fact, in fraud of creditors. The trial court found that it was a valid conveyance for a good consideration without intent to defraud, and followed by a sufficient and continued change of possession. This finding is amply supported by the evidence. The record shows that when defendant W. H. Curtis was unable to discharge obligations of the auto court, his wife, defendant Clara B. Curtis, borrowed $3,500 from her relatives, and added $2',000 of her own separate funds. The assignment to her of the auto court lease was in consideration of her agreement to assume and pay $5,480 of obligations then listed against the premises. After the assignment Mrs. Curtis ran the business. She secured a new license, in her own name, made all the purchases, paid all the bills, and had sole authority to sign the checks. Upon such a record the conveyance cannot be successfully attacked by charging a fraudulent intent on the part of W. H. Curtis. The alleged fraud was not proved, and the showing of a valuable consideration conclusively answers the charge. (See Bundle v. Commercial Bank, 178 Cal. 546 [174 Pac. 44]; Atkinson v. Western D. Syndicate, 170 Cal. 511 [150 Pac. 363]; Security Trust Co. v. Silverman, 210 Cal. 518 [292 Pac. 636].)

The second point relates to the fourth count of defendants’ cross-complaint, seeking the recovery of a $5,000 deposit paid by the former lessee at the time of execution of the lease. The lease in this connection states that “as a bonus for the lessor’s execution of this lease, the lessee has paid him, unconditionally upon execution thereof the sum of five thousand dollars ($5,000.00) ”, to be credited on the last five months’ rent. It is settled in California that where there is an absolute payment of rent in advance for some portion of the term, or where there is a payment of a certain sum as a “bonus” or “consideration” for the execution of the lease, the lessor may retain it upon termination. (See A-1 Garage v. Lange Inv. Co., 6 Cal. App. (2d) 593 [44 Pac. (2d) 681].) But if it is a deposit as security for the performance of the terms of the- lease, it is treated as a provision for a penalty, and the lessor cannot keep the sum upon the lessee’s breach. (Redmon v. Graham, 211 Cal. 491 [295 Pac. 1031]; Sullivan, Inc., v. Johnson, 116 Cal. App. 591 [3 Pac. (2d) 72].) These rules are established, and the only problem is one of application. Plaintiffs contend that the lease is unambiguous in its declaration, and that therefore the payment must be deemed a bonus. The trial court found, however, that it was not a bonus but a deposit as security, and while the matter is not free from doubt, we think there was evidence to support this interpretation. The lease itself contains two additional provisions which are not easily reconcilable with the idea of an absolute transfer to the lessor of funds in which the lessee retains no further rights. One is the provision that in the event of termination of the lease by destruction of the building, the lessor “will pay the lessee so much of the said sum of Five Thousand Dollars ($5,000) as shall not theretofore have been so credited upon the rent”. The second provision is that as long as the lessee is not in default in payment of rent or performance of other covenants of the lease, “the lessor shall allow him, semi-annually, a sum equal to interest at the rate of 6 per cent per annum upon said sum of five thousand dollars ($5,000.00) or on that part thereof not actually credited as aforesaid”. These provisions suggest that the lessee retains substantial rights in the fund until the end of the term; and the provision for regular interest for the whole term if the lessee properly performs seems to indicate that the fund was chiefly intended as security for performance rather than as a bonus for execution of the lease or an absolute advance payment of rent. At any rate, these inconsistent statements in the lease itself are an answer to the contention that the unambiguous characterization of the sum as a “bonus” removes the matter from the court’s power of construction. In our opinion the court was justified in considering the circumstances surrounding the making of the lease and the giving of the deposit in order to determine what meaning and effect should be given to the language. And these circumstances fully support its conclusion. When the $5,000 was paid, plaintiff gave Mr. Curtis a receipt, reading: “Received of W. H. Curtis Five Thousand and no-100 Dollars deposit as security for payment of rent under lease dated 12-1-26. AETNA GARAGE. L. A. BACCIOCCO.” This declaration of the parties on the controverted issue must be held to turn the scale in favor of the finding of the trial court, which properly looked at the substance rather than the form of the transaction. (See Sullivan, Inc., v. Johnson, supra.)

Nor do we think that the doctrine of res judicata is an obstacle to the judgment on the cross-complaint, for an action to recover a deposit paid by the lessee, after a prior unlawful detainer proceeding by the lessor, has been recognized as proper in this state. (See Green v. Frahm, 176 Cal. 259 [168 Pac. 114].)

In view of the above we do not find it necessary at this time to consider the evidence presented by defendants to show that plaintiffs orally agreed, for consideration, not to seek enforcement of their money judgment for rent, although it should be noted that the lower court found this evidence convincing and held that plaintiffs were estopped from enforcing the same.

No other points require discussion.

The judgment is affirmed.

Rehearing denied.


author: EDMONDS, J.

text:
    [Sac. No. 5226.
    In Bank.
    September 2, 1938.]
    OCEAN ACCIDENT AND GUARANTEE CORPORATION, LIMITED (a Corporation), Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION, EUGENE SZANIK et al., Respondents.

      Redman, Alexander & Bacon and R. P. Wisecarver for Petitioner.
    Everett A. Corten and Eldon B. Spofford, for Respondents.
   EDMONDS, J.

In this proceeding, a decision of the Industrial Accident Commission by which disability indemnity was awarded to an employee of C. W. Caletti, doing business as C. W. Caletti & Company, is challenged by the petitioner, which the commission found was the employer’s insurance carrier at the time the compensable injury was received. The record of the proceedings resulting in the decision and award are before this court in response to a writ of review.

The facts concerning the controversy are not disputed. It appears that in 1935 Eugene Szanik was working as a bridge-builder for Mr. Caletti. He received an injury to his arm for which his employer provided no medical attention. Thereafter he was unable to work and the employer terminated his services. He procured medical treatment and did nothing for a number of months. More than six months after the injury he filed a claim before the Industrial Accident Commission against C. W. Caletti & Company. The employer was given notice of this claim but paid no attention to it. Later the commission held a hearing, at which the applicant appeared in person without counsel and introduced evidence. Following this hearing, after notice of intention to issue an award had been served upon the parties, the commission made a decision and award against C. W. Caletti & Company in favor of Szanik for a total amount of $1240.84.

Four months after the award was made the employer filed with the commission an application for its modification to include the insurance carrier. This application, filed on February 9, 1937, recited that eight days earlier Szanik had procured a judgment and execution upon the award of the commission in the Superior Court of Mendocino County, and that execution had been levied upon the employer’s bank account. It also alleged that at the time the employee was injured C. W. Caletti & Company had a policy of workmen’s compensation insurance issued by the petitioner, and that if the injury to Szanik is compensable the insurance carrier is liable therefor. The application expressly stated that from time to time the respondent employer received notices of the proceedings before the Industrial Accident Commission and a copy of the award, but that he did not refer the matter to an attorney nor make any inquiry concerning the ease because he assumed the insurance carrier was attending to it. The employer asked that the commission make an order rescinding the award and staying execution of the judgment. Upon the filing of this petition and an undertaking the commission ordered execution stayed pending a final determination of the matter.

Szanik by written answer to his employer’s application objected to any modification or rescission of the award other than an amendment as of its date to add the petitioner as an additional defendant. The petitioner by answer alleged that it had received no notice of injury to the employee and “that the employer had not acted with due or any diligence and had been negligent in the premises; that the commission was without jurisdiction to entertain such application; that it further appeared on the face of the record that the statute of limitations had barred any recovery against said carrier; and that the application should be dismissed to prevent a multiplicity of actions and because said carrier had not been given an opportunity to defend said claim or minimize damages by supplying proper medical attention”. Upon a hearing of the application the commission ordered the insurance carrier joined as a party defendant and further hearings were had. Thereafter it made an order that the findings and award be amended to provide that at the time of the injury complained of the petitioner was the compensation insurance carrier of C. W. Caletti & Company and all parties were then subject to the provisions of the Workmen’s Compensation Act. The commission also found that the employer is not “presently entitled to be relieved from liability” but that if and when the award becomes final, “the employer may petition to be discharged from liability”.

The first point made by the petitioner is that the commission has no jurisdiction to reopen a final award of compensation against an employer after the period for rehearing has expired and to substitute the insurance carrier where the application therefor is made by the employer upon the ground that it negligently failed to respond to various notices concerning the pendency of the proceedings. The insurer contends that although the commission may alter or amend any order or decision or award made by it within 245 weeks from the date of an injury, this right may only be exercised “upon good cause appearing therefor” (Workmen’s Compensation Act, Stats. 1917, p. 850, sec. 20d; now sec. 5803, Labor Code); that its continuing jurisdiction is expressly limited by the statute and may only be exercised when the challenged award is inequitable.

The record shows without question that the employee’s right to compensation was barred at the time he filed his claim and that the insurer had no notice of the injury or of any step in the proceedings. When the employer filed his application for a modification of the award the injured man had procured a judgment for the amount which the commission awarded to him. There is no contention that the employee was not fully secured by the levy of execution upon this judgment; indeed, he would undoubtedly have received the amount of the award in full if the commission had not granted the employer’s application to bring the petitioner into the proceedings. This is, therefore, not a case where an employee is seeking the means to collect an award made in his favor. On the contrary, he resisted the employer’s application for modification of the award, taking the position that it should be denied and the order staying execution vacated. The employee contends that the controversy between the insurer and his employer “is not a matter of proper concern to this applicant”.

Although the commission may alter or amend an award which has become final, its right so to do is limited to those cases where good cause appears therefor. Good cause, it has been held, depends largely upon the particular circumstances of each case. (Bartlett Hayward Co. v. Industrial Acc. Com., 203 Cal. 522 [265 Pac. 195].) But this court has also said that “the existence of some fact or circumstance which warrants the conclusion that the challenged award is inequitable is a necessary element to the exercise of the continuing jurisdiction of the commission”. (Merritt-Chapman & Scott Corp. v. Industrial Acc. Com., 6 Cal. (2d) 314 [57 Pac. (2d) 501].) No such facts are shown in the present case. All of the equities are in favor of the insurer who had no notice of the injury or of the application for compensation until long after the award became final. If an employer who knows his employee has been injured and is seeking compensation chooses to disregard the proceeding and allows an award against him to become final, he has no equitable ground for then charging his insurance carrier with liability therefor, particularly where the injured person’s claim was barred by the statute at the time his application for compensation was filed.

The commission seeks to justify its action under section 30 of the Workmen’s Compensation Act, supra, now sections 11651 et seq., Insurance Code. This statute requires a provision in every contract insuring against liability for compensation that “as between the employee and the insurance carrier, the notice to or knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge, as the case may be, on the part of the insurance carrier; that jurisdiction of the employer shall, for the purpose of this act, be jurisdiction of the insurance carrier; and that the insurance carrier shall in all things be bound by and subject to the orders, findings, decisions or awards rendered against the employer under the provisions of this act, to the extent provided in and subject to the provisions, conditions and limitations of the policy”. But the employee is not attempting to assert any claim against the insurer in the present proceeding. He is satisfied with the award rendered against his employer and the judgment thereafter obtained upon it. The Industrial Accident Commission under the circumstances shown in this case had no jurisdiction to amend the award; therefore, the provisions of the Workmen's Compensation Act which are relied upon have no application.

The order of the Industrial Accident Commission dated November 8, 1937, is annulled.

Waste, C. J., Curtis, J., Shenk, J., Seawell, J., and Lang-don, J., concurred.

Houser, J., dissented.