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District Court of Appeal, Fourth District, California.


Civ. 4639.

Decided: May 01, 1953

Robert M. Wash, County Counsel of Fresno County, and John E. Loomis, Fresno, for petitioner. E. Clarke Savory, Dist. Atty., Fresno, Richard L. Shepard, Asst. Dist. Atty., Fresno, for respondent.

The respondent has asked for a rehearing, contending that two important questions of law were left undecided: (1) Whether or not the court's order of January 26 was a ‘valid order,’ and (2) whether the auditor has any right or duty to consider or pass upon the legality of such a grand jury expense. It is argued that the petitioner had no such right; that all discretion with respect to a claim arising under section 928 of the Penal Code, as amended, is vested in the court; and that the evidence shows an intentional violation of the court order and amply sustains the finding of contempt.

The controlling question presented to this court was not as to whether the order of January 26 was a valid order, and not as to whether it should eventually be decided that the auditor's duty, in such a case, is merely ministerial. It was unnecessary to decide either of those questions. Because one sentence, considered apart from the rest of the opinion, might be construed as having the effect of deciding the second of these questions, the opinion is modified by striking therefrom the sentence in the fifth from the last paragraph (containing the quotation from section 928 of the Penal Code) beginning with the words ‘In view of * * *’ and ending with the words ‘* * * was illegal.’

The question before us was as to whether the evidence in the record was sufficient to support and justify the finding that the petitioner wilfully and contemptuously refused to obey the court's order. The record clearly discloses that close legal questions with respect to the duties of the auditor were involved which had not been decided, so far as any one knew or still knows; that there was an apparent inconsistency, if not a possible conflict, between various statutes relating to these duties; that the auditor was advised by the county counsel to await his search of the law, and told that the Attorney General had been asked for an opinion; that on the third day the auditor was cited for contempt; that at the hearing, the first opportunity for both sides to be heard, the auditor expressed his willingness to do whatever the court should order; and that he immediately complied when the court told him that it was his duty to draw the warrant.

It was and is our view that under these circumstances the petitioner should have been allowed a reasonable time in which to act; that the close legal questions involved should have been presented and handled in some manner more appropriate to a just decision than that afforded by a resort to a quasi-criminal proceeding; and that there was no substantial evidence justifying a finding of contempt.

While a court has inherent power to punish for contempt, this is a drastic remedy which should be used only when necessary in order to maintain law and order. It should rarely, if ever, be used for the purpose of settling differences of opinion between conscientious officials with respect to close questions of civil law. Whether or not the power to do so technically existed here, in our opinion it was an abuse of discretion to punish the petitioner for contempt under these circumstances.

The petition for a rehearing is denied.


Hearing denied; CARTER, J., dissenting.