COATES v. KLETTE JUDGE OF SUPERIOR COURT OF FRESNO COUNTY ET AL (1941)

In this petition for a writ of certiorari it is alleged that on September 12, 1940, petitioner was conducting, managing and operating five service stations in the city of Fresno. On that day a criminal complaint was filed in the justice's court of that county, wherein it was charged that in nineteen separate acts, nine of them occurring on August 12, 1940, and ten on August 16, 1940, petitioner permitted to be sold a product purporting to be gasoline, when such product did not conform to the standards prescribed in the Petroleum Products Fraud Prevention Law of 1931. Stats.1931, p. 1313. This act provides in part as follows:

“Sec. 17. Any person, firm, * * * or employee thereof, who violates any of the provisions of this act shall be guilty of a misdemeanor * * *. Each such person, firm, * * * or employee thereof, shall be deemed guilty of a separate offense, for each day during any portion of which any violation of any provision of this act is committed, continued or permitted by such person, firm, association or corporation, and shall be punishable therefor as provided in this act.”

After a denial of guilt and a trial thereon in the justice's court, petitioner was found guilty upon each of the nineteen counts, as set forth in the complaint, and after the denial of the motion for a new trial, the respondent justice's court imposed fines upon petitioner upon each of the several counts. Thereafter, a motion in arrest of judgment was presented and denied. An appeal was then taken to the respondent superior court, which court affirmed the judgment and sentence on each of the nineteen counts.

Thereupon, the defendant sought to review the action of the justice's court and the superior court by this writ of certiorari and alleges that the justice's court, in imposing the fines, and the superior court, in affirming the convictions, acted in excess of their jurisdictions in that, as asserted in the petition, the act permits the charging of but one offense for each day, irrespective of the number of sales made during said day.

To this petition, respondents have, by demurrer, challenged the legal sufficiency of the petition. Both sides concede that neither the judge of the superior court, nor the justice of the peace are proper parties in this proceeding for a writ of certiorari, and that as to them the demurrer is well taken, but the sufficiency of the petition as to the two courts still remains to be examined.

Referring to respondent justice's court, the rule is stated in Olcese v. Justice's Court, 156 Cal. 82, 103 P. 317, 318, to be as follows: “This court has never recognized the right of a petitioner to a writ of certiorari to review the judgment of a justice's court after appeal taken and determined in the superior court.” Portnoy v. Superior Court, 46 Cal.App.2d –––, 116 P.2d 804, is to the same effect. The reason for the rule is that an adequate remedy lies from a judgment in excess of jurisdiction by an appeal to the superior court. The writ must be denied where there is a “plain, speedy, and adequate remedy, in the ordinary course of law.” Code Civ.Proc., § 1086. Furthermore, the effect of the appeal is to transfer jurisdiction to the superior court. No cause of action was therefore stated against the justice's court. On the other hand, a cause of action was stated against the superior court, as will appear later. If the original judgment of the justice's court was in excess of its jurisdiction the order of the superior court in affirming such judgment is in the same category. There is no remedy by appeal from the latter court, and certiorari is therefore a proper method of presenting the question to a higher court.

Turning to the demurrer relating to the superior court, it is well settled that where such court affirms a judgment of the justice's court, certiorari will nevertheless lie to review any act of the superior court which is alleged to be in excess of its jurisdiction. Sherer v. Superior Court of Lassen County, 94 Cal. 354, 29 P. 716. In recent years our courts have given a much broader meaning to “jurisdiction” than formerly prevailed. In the case of Abelleira v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 947, 132 A.L.R. 715, it is said:

“But in its ordinary usage the phrase ‘lack of jurisdiction’ is not limited to these fundamental situations. For the purpose of determining the right to review by certiorari, restraint by prohibition, or dismissal of an action, a much broader meaning is recognized. Here it may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites. * * * On a number of occasions the courts of this state have recognized the conflicting senses in which the term ‘jurisdiction’ is used, and have emphasized the point that in applications for prohibition or certiorari, the broader meaning is involved. In our own recent decision, Rodman v. Superior Court, 13 Cal.2d 262, 89 P.2d 109, 112, we said: ‘* * * some confusion exists with reference to what constitutes an excess, and what constitutes an error, in the exercise of jurisdiction. However, it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess.’ ”

The following excerpt from the Rodman case, [13 Cal.App.2d 262, 89 P.2d 112], mentioned in the foregoing quotation, is clearly applicable to the situation presented here:

“In Spreckels S. Co. v. Industrial Acc. Comm., 186 Cal. 256, 199 P. 8, the point is discussed at some length. There the statute specifically designated what award the commission should make to partial dependents in the event of the death of an employee. The commission made an award larger than that permitted by the statute. This court held that such action could be corrected by certiorari. In 186 Cal. at page 260, 199 P. at page 9 it is stated: ‘The difficulty arises from the different shades of meaning which the word “jurisdiction” has. As sometimes used, it means simply authority over the subject–matter or question presented. In this sense the Commission undoubtedly had jurisdiction in this case and its award was not without jurisdiction on its part. But the word is frequently used as meaning authority to do the particular thing done, or, putting it conversely, a want of jurisdiction frequently means a want of authority to exercise in a particular manner a power which the board or tribunal has, the doing of something in excess of the authority possessed. A good illustration of a want of jurisdiction of this latter sort is the imposing by a court upon a person convicted of crime of a sentence in excess of that permitted by the statute. The court had jurisdiction to sentence the convicted person, but it did not have jurisdiction to impose a sentence not permitted by law; that is, it acted in excess of its power in so doing. Such excesses of jurisdiction can be reviewed on certiorari. The code section so provides (sec. 1068, Code Civ.Proc.) * * *. Upon the facts found the statute prescribed the amount to be allowed as a death benefit, and the Commission in allowing a different amount, rendered an unlawful award, and one in excess of its authority.’ ”

It would appear that the affirmance of the judgment by the superior court cannot impart jurisdiction where none existed in the justice's court. The cases relied upon by respondents involve attacks upon a judgment which are based upon errors at law, and not questions of excess of jurisdiction.

The language of the statute here is clear, and there is no room for the application of rules of statutory construction. There is a separate offense provided for each day during any portion of which any violation of any provision of the act is committed. If one sale is made in the morning and another in the afternoon of the same day, such sales were made in different portions of the same day, and but one offense is committed. Nine of the sales were made here on one day, and ten on another. The statute provides that each day when a sale or sales are made is a separate offense. The action should go back to the justice's court for a new judgment predicated upon the basis that the complaint states but two offenses, instead of sixteen. The attorney general argues that to construe the statute according to its obvious meaning would lead to absurdities. Petitioners point out that to adopt the theory of the prosecution would be also absurd. The absurdities would seem to be about equally balanced. Such arguments might well be addressed to the legislature. Here, the latter has explicitly defined what shall constitute a separate offense under the act, and it is not within our province to alter and change such definition.

It is conceded by petitioner that the demurrer in respect to respondents judge of the superior court and justice of the peace, should be sustained. We have pointed out that the same rule should apply to respondent justice's court. As to respondent superior court, the demurrer should be overruled. It will be so ordered.

As the question is one of law alone, it would seem proper that the matter should be finally disposed of at this time.

The order is annulled.

TUTTLE, Justice.

THOMPSON, Acting P. J., concurred.