PIERCE v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY (1934)

This is a proceeding in prohibition to restrain the respondent superior court from making any further order or orders in an action pending before it.

The action referred to is numbered 379410 in said court and is entitled: ‘The People of the State of California, on the relation of U. S. Webb, Attorney General, v. Paul O. Pate et al.’ The complaint was filed on October 18, 1934, and the action was brought for the purpose of canceling alleged fraudulent registrations of voters in Los Angeles county. Upon the filling of the complaint the respondent court issued an order requiring the defendants, some 24,000 in number, to show cause before a special master why their registrations should not be canceled. The court found that it was impracticable to serve the order to show cause personally upon the defendants and directed that, in lieu of such personal service, the order be published once in the Los Angeles Daily Journal, and a news item be inserted in the daily papers of the city that the defendants could ascertain whether they were sued by an inspection of the order to show cause on file at certain designated places. The present proceeding was commenced on October 22d by some of the defendants on behalf of all of them.

The return of the respondents is by way of demurrer for want of sufficient facts, and by answer which shows that on October 24th the court issued a supplemental and amended order to show cause requiring postal cards to be mailed to said defendants. Personal service of summons or other notice was not provided for and was specifically dispensed with. Certain of the defendants voluntarily appeared in said action and the court has announced its intention to proceed as to the defendants not personally served and who have not appeared, and adjudicate their right to vote at the general election to be held on November 6, 1934.

The petitioners herein attack the power of the respondent court to proceed in the pending action on the ground that the court has no jurisdiction of the subject-matter of the action and, if it has such jurisdiction, that it has no jurisdiction of the persons of the defendants who have not appeared and have not been personally served.

The right of the state to proceed by an action in equity in the superior court to purge the great register of fraudulent registrations may not seriously be questioned. It is one of the high prerogatives of the state to provide for and insure honest elections. Without this safeguard the liberties of the people and the stability of the government would be at an end. If, as we hold, the state may maintain such an action, the right of the Attorney General to institute it may not be attacked. The Attorney General, as the chief law officer of the state, has broad powers derived from the common law, and in the absence of any legislative restriction, has the power to file any civil action or proceeding directly involving the rights and interests of the state, or which he deems necessary for the enforcement of the laws of the state, the preservation of order, and the protection of public rights and interests. People v. Stratton, 25 Cal. 242; People v. Gold Run Ditch & Mining Co., 66 Cal. 138, 4 P. 1152, 56 Am. Rep. 80; People v. Beaudry, 91 Cal. 213, 27 P. 610; People v. Oakland Water Front Co., 118 Cal. 234, 50 P. 305; 3 Cal. Jur. p. 561; 2 R. C. L. p. 918; 6 Cor. Jur. p. 812.

The petitioners claim that the jurisdiction of the subject-matter is lacking because an identical remedy is afforded by section 1109 of the Political Code. That section provides that ‘any person’ may bring an action in the superior court to cancel fraudulent registrations. The Attorney General asserts that the state is not ‘any person’ as provided by that section. We have not been referred to any authority, and we have discovered none, that the state is so included, although the purpose of an action under section 1109 is the same as the pending action. But neither is the section to be construed as a restriction upon the broad powers of the Attorney General. The fact that a remedy is given to a private individual to institute such an action could not operate to deny the power of the Attorney General to bring a similar action on behalf of the state, which power exists independent of said section. We conclude that the respondent court has jurisdiction of the subject-matter of the action.

But jurisdiction of the persons of the defendants who have not appeared and who have not been served with summons or who have not been served personally with the order to show cause, does not appear. The Legislature might provide for constructive or substituted service in such cases, as has been done in other states, but it has not done so. We must then look to the law of the state as to what service is necessary.

Before the right of suffrage may be denied to an individual, he must have notice and an opportunity to be heard in the manner provided by law. Here the substituted service sought to be applied is not available, and jurisdiction of the person must be obtained in the usual manner by personal service or by substituted service of summons as provided in section 412 of the Code of Civil Procedure, before the rights of the litigant may be finally adjudicated. This is true under the law whether the action be in rem or in personam where, as here, no service is provided by the law of the state except by summons or by other personal service. Any order made in the pending action, though provisional, which would deny to any defendant the right to vote at the election on November 6, 1934, would be in effect a final adjudication of the right to exercise the elective franchise as to that election.

The holding of the District Court of Appeal in Ash v. Superior Court, 33 Cal. App. 800, 166 P. 841, is directly applicable to this proceeding. There an elector sued under section 1109 of the Political Code to cancel alleged fraudulent registrations. The voters whose registrations were claimed to be fraudulent were not made defendants in the action. It was properly held that the registrants were necessary parties to said action, and that before they could be deprived of the valuable right to vote they must be regularly served with process. This is particularly true when the Legislature has not provided for some lawful method for substituted service. The peremptory writ of prohibition and order, heretofore issued, limited as follows, was therefore appropriate:

‘It is ordered that the respondent superior court herein be and it is hereby prohibited from making or entering any judgment, order, or decree in the action pending in said court entitled, ‘The People of the State of California on the relation of U. S. Webb, Attorney General, Plaintiff, v. Paul O. Pate et al., Defendants,’ numbered 379410 in said court, adjudicating the status, or affecting the rights of any defendant in said action who has not been regularly served with summons or who has not been otherwise personally served with notice to appear or who has not appeared in said action.

‘Let a peremptory writ of prohibition issue accordingly.’

See concurring and dissenting opinion of LANGDON, J., on order of October 31, 1934, 37 P.(2d) 453.

I dissent. It is a fundamental prerequisite to the issuance of the high prerogative writ of prohibition that it be made to appear that the inferior tribunal is acting or is threatening to act in excess of its jurisdiction. This rule is so well understood that it does not require the citation of authority. However, reference may be had to Traffic Truck Sales Co. v. Justice's Court, 192 Cal. 377, 220 P. 306, and cases there cited. It is manifest that the rule is not met by petitioner in this case. It was not seriously contended that the respondent court had no jurisdiction of the subject-matter of the action and, indeed, I do not believe such argument could be logically advanced. It must be conceded that one of the paramount duties of a republican form of government is to assure its citizens that the channels through which the power of the people is exercised and their will made known shall be preserved pure and unimpaired by fraud or illegality. To deny the state the power to perform its duty in this regard is to confess its impotency to maintain its existence. According to the complaint filed in the court below, the great register contains the names of many thousand persons who are falsely and fraudulently registered; and that ‘thousands of fictitious names have been placed on the registration list by persons not lawfully entitled to vote, for the manifest purpose of unlawfully voting and unlawfully influencing the result of the said general election.’ It is further alleged that because of the ‘fraudulent and fictitious registration, the will of the majority of the lawfully registered and qualified electors, in their choice of candidates, will be defeated at the said general election’ unless those falsely registered are prevented and restrained from voting thereat. In addition, it is alleged, among other things, that these people, claimed to be fraudulently registered, have given as their address one ‘which is a vacant and uninhabited lot’ and have signed false and fictitious names as well as given ‘a false and flctitious address' and registered ‘at different times and places in numerous precincts under the same, or a fictitious name or names and given a fictitious place or places of residence within each precinct.’ The complaint sets forth that the state is without an adequate and practical remedy unless the court ‘enters its orders and decrees, enjoining the registrar of voters [who is made a defendant] from certifying the names of each and all of the other defendants named in the caption * * * to the election officers in their respective precincts.’ The prayer asks, in addition to other relief, that the registrar of voters ‘be directed to show cause why he should certify the names of each and all of said other defendants to the election officers of their respective precincts at the general election on November 6, 1934.’ In the return to the order to show cause it appears that the defendant Kerr, as registrar of voters, has made a formal appearance and ‘has submitted to the jurisdiction of the court.’

In the case of People v. Tool, 35 Colo. 225, 86 P. 224, 227, 229, 231, 6 L. R. A. (N. S.) 822, 117 Am. St. Rep. 198, which it is true involved not only the registration of ‘many thousands of false, fraudulent, and fictitious names.’ but also a conspiracy among a majority of the election commission and election judges in each precinct to prevent a fair election, we find the enunciation of certain principles which, to my mind, are irrefutable. We there read: ‘The state, in its sovereign capacity, by the very terms of its being, is intrusted with powers and duties to be exercised and discharged for the general welfare, and for the protection of the rights and liberties of its citizens. In the exercise of these powers and in the discharge of these duties, it is not restricted in the remedies which it may employ. The interest of the state in a pure election is not limited to the protection which may be afforded by the punishment of those, through criminal prosecutions, who violate the laws relating to elections by padding registration lists, permitting repeating, and falsifying election returns. If a conspiracy of the magnitude charged, exists to commit frauds violative of the most sacred rights of the citizens of the state, then any attempt to prosecute and convict the wrongdoers would be futile. If, then, the state, in order to secure an honest election, should be limited to the prosecution and punishment of those who might be guilty of the frauds charged, the people of this commonwealth are at the mercy of those who have combined to commit these frauds. Government is not such a failure; the state is not so impotent. The result to be accomplished by a proceeding which the state may institute, rather than its character, constitutes the test of its power. It has the right to appeal to this court for a determination and exercise of its powers by an appropriate process, to prevent wrongs which, in its sovereign capacity, it is its duty to prevent. Certainly no good reason can be advanced why it is not as wise for the state, by means of a civil action, to prevent an offense, injuriously affecting its rights or the liberties of its citizens, as it would be to wait and punish, or attempt to punish, the offender for a crime after it has been committed.

‘It is the undoubted duty of the state to preserve, pure and unimpaired, every channel through which powers are exercised necessary for the protection of the rights and liberties of its citizens. Deny this power and the supremacy of the state government is denied. The rights of citizens which will be impaired if the frauds threatened are committed, are of the most vital importance. If not prevented, then the interest of the state, as well as the interests of those whom it is bound to protect, will be injuriously affected. The power which the state may exercise in such circumstances is wholly independent of other remedies at law. It is the function of the Attorney General, by information, to protect the rights of the public, and in so doing he has the right to resort to the more lenient remedy of injunction to prevent wrongs against the public rather than wait until after their commission, and then seek to punish the wrongdoers. The bill discloses that certain of the respondents have entered into a conspiracy to commit the illegal acts charged. These acts will affect the entire state. Individuals cannot invoke the power of a court of equity to enjoin these acts, but the state, in its sovereign capacity as parens patriae, has the right to invoke the power of a court of equity to protect its citizens when they are incompetent to act for themselves. The state is not bound to wait until the object of the illegal combination is effected which will deprive the people of their liberties, and constitutional rights, but may bring an action at once to prevent its consumination; and while the writ of injunction may not be employed to suppress a crime as such, yet when acts, though constituting a crime, will interfere with the liberties, rights, and privileges of citizens, the state not only has the right to enjoin the commission of such acts but it is its duty to do so. In re Debs, 158 U. S. 564, 15 S. Ct. 900, 39 L.Ed. 1092; Atty. Gen. v. R. R. Co. [35 Wis. 425], supra; State v. Houser, 122 Wis. 534. 100 N. W. 964; Atty. Gen. v. Blossom, 1 Wis. 317; Columbian Athletic Club v. State, 143 Ind. 98, 40 N. E. 914, 28 L. R. A. 727, 52 Am. St. Rep. 407; Louisville N. R. Co. v. Commonwealth, 97 Ky. 675, 31 S. W. 476; Commonwealth v. McGovern, 116 Ky. 212, 75 S. W. 261, 66 L. R. A. 280; People v. Truckee Lumber Co., 116 Cal. 397, 48 P. 374, 39 L. R. A. 581, 58 Am. St. Rep. 183; In re Court of Honor, 109 Wis. 625, 85 N. W. 497. In the celebrated Debs Case, supra, Mr. Justice Brewer, after discussing the interest which the government had in the action out of which the proceedings for contempt against Debs arose, and having reached the conclusion that the government had a property right to protect, said: ‘We do not care to place our decision upon this ground alone. Every government, intrusted by the very terms of its being with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one, and the discharge of the other; and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court.’'

In the case of Aichele v. People, 40 Colo. 482, 90 P. 1122, it was alleged that the county clerk and his deputies had unlawfully conspired to corrupt an election and that in pursuance thereof ‘defendant and his deputies have permitted and allowed and made and caused to be entered upon the registration sheet and books in his office at divers times many thousand false and fraudulent registrations of persons not qualified to be registered in the several precincts of the county, and also of many fictitious names as persons entitled to be registered.’ The prayer was that the county clerk be enjoined from certifying the fraudulent and fictitious names to the election officials. The court said: ‘We do not see why a court of equity, in the exercise of its ordinary equitable jurisdiction, has not the same power to restrain a public officer from registering or certifying fictitious persons, or making or changing original registration after the time fixed by the statute, as it would have to prevent a public officer from entering upon public records false or forged instruments, or those which are not entitled to be placed upon record. At least, with respect to the allegation in the complaint that the defendant has knowingly and willfully made and entered upon the registration books the names of fictitious persons, and has made and is making original registrations and changing the same after the time fixed by law, there can be no question that it is within the power of a court of equity to prevent or render harmless such illegal acts, and, in doing so, it is in no sense supervising or controlling the conduct of an election.’

It must follow from these declarations of the equitable principles, as well as from the natural sequence of reason, that the state has the undoubted power through the courts to purge its records of false and fraudulent registrations in order to prevent the consummation of an election fraud. We may admit for the purpose of argument that the court below has not acquired jurisdiction of the persons of those who have not appeared in answer to the order to show cause, but it has jurisdiction of those who have submitted to its jurisdiction by appearance, including the registrar of voters. That it does not necessarily follow, however, that in every case the court is without jurisdiction to make an order affecting the status or even the property of a person over whom the court has not acquired jurisdiction by the service of process, I desire in passing to call attention to the recent case of Nichols v. Superior Court (Cal. Sup.) 36 P.(2d) 380, wherein to prevent fraud we upheld the appointment of a receiver and an order for the payment of alimony pendente lite out of the property without the service of an order to show cause or summons on the defendant. However, it is not essential here that we go to that length in this case to establish jurisdiction.

Now let us assume, as we must in accordance with allegations of the complaint that many persons have registered from vacant and uninhabited lots and from fictitious addresses, and that such facts are made irrefutably to appear to the court. Can it be successfully asserted that the court has not the authority to order the defendant registrar of voters not to certify such names to the election officials? It is a plain absurdity to argue that one registered from a ‘vacant and uninhabited lot’ is a duly registered elector. It is equally obvious that he has no right to protect. I am supposing cases where it is palpable and unescapable that the registration is fraudulent and fictitious only, for the purpose of illustrating the fact that the court is not without jurisdiction to take some action. In the supplemental and amended order to show cause the respondent court has said that the names may be stricken from the great register. We cannot indulge the supposition that names will be stricken improperly, but must confine our thoughts to those whom it has the right to order the registrar of voters to drop. The case of Ash v. Superior Court, 33 Cal. App. 800, 166 P. 841, 842, although it is not the measure of the case here, because it is one brought by an individual under the express authority of section 1109 of the Political Code, recognizes the rule which I think is entitled to weight in this case. The District Court of Appeal, speaking through Mr. Presiding Justice Conrey, said: ‘There may be instances in which the action authorized by section 1109 of the Political Code may be prosecuted and a valid judgment rendered compelling the clerk to cancel registrations without bringing in as party defendant any person other than the clerk. This would seem necessarily to be so in case of the death of the person registered. But, whatever may be said of other instances of cancellation of registrations as provided by section 1106 of the Political Code, we think that the power of cancellation of a completed registration without notice to the person whose registration is sought to be canceled cannot be exercised arbitrarily and without notice under any of the circumstances included within the action now pending in the superior court.’

Even as in the case of the death of the one registered, so must it be in the case of those who are registered from a residence which does not in fact exist.

In the case of Aichele v. People, supra, the action was against the clerk only.

Section 1109 cannot be used from which to argue that in a case brought by the state to purge its records, the name of the person sought to be removed must be made a party for several reasons. First, there is no such requirement in section 1109, although the court may in a proper case, such as the Ash Case, require it. Second, the section gives to an individual a right which, according to People v. Tool, supra, he would not have without the section, but which right, in the absence of statute, is lodged exclusively in the state.

Third, and lastly, if it were to be so construed, equity is not confined to a procedure of law which is inadequate.

Furthermore, under the prayer for general relief, the court has the jurisdiction, without interfering with the right of any duly registered elector, and in order to protect the state from fraud and to prevent its wholesale consummation, to take effective measures to prevent and to assure the citizens that illegal and fraudulent votes will not be cast. In People v. Tool, supra, in the exercise of its equitable jurisdiction the court went to the length of appointing two watchers in each of the precincts for the purpose of observing how the election was conducted. I know of no reason why the arm of equity may not reach to every precinct wherein it is claimed there are fictitious registrants for the purpose of securing an honest election. So do I read the Tool Case and so I think does conscience dictate.

It is evident, therefore, that the respondent court is vested with jurisdiction, and I cannot but feel it should be left free to exercise that jurisdiction. The peremptory writ should be denied.

PER CURIAM.