Matter of Zany

130 P. 710, 164 Cal. 724, 1913 Cal. LEXIS 529

Opinions

ANGELLOTTI, J.

An order denying the application for a hearing in this court, after decision by the district court of appeal for the third district discharging the petitioner from custody, was made by this court on January 13, 1913. We deem it proper to say that the order denying the application was made without regard to the merits of the decision of the district court of appeal, which we have not considered and as to which we express no opinion, and solely, upon the ground that this court has no such power of transfer in habeas corpus proceedings.

Such has been our ruling as to all such applications heretofore made, there having been several such applications since the establishment of our district courts of appeal. The court, however, has never heretofore stated in writing the ground upon which such denials were ordered.

It has always been the law in this state that the decision of any court in a habeas corpus proceeding, provided the court has jurisdiction, cannot be reviewed by any other court in any way. The right of appeal has never been given, and no other method for such review has ever been provided. We are speaking now without regard to the provisions of our constitution relative to district courts of appeal, which we will consider later. The result has been that, with reference to such proceedings, the supreme and superior courts, to each of which was given the power to issue writs of habeas corpus, stood upon the same plane, neither being inferior to the other in any other sense than that a superior court in determining any such matter would naturally follow a precedent established by the highest court in the state, if any such precedent had'been established. It however had the power to disregard it, and its determination, whether in accord with the law as laid down by the supreme court or not, was an end of the particular proceeding, and in case of a discharge of the petitioner from custody was final and conclusive. Such is still the law with relation to the superior court of the state, as was recently decided by this court in Bank, Mr. Justice Shaw writing the opinion. (See In re Hughes, 159 Cal. 360, [113 Pac. 684].) Where a petitioner was remanded to custody by a superior court, and the proceeding instituted in that court was thus terminated and was no longer a matter pending therein, he could inaugurate a neiv proceeding for relief in another court and can still do so, but is now limited in the making of a new application by statutory provision to a higher court, either the district court of appeal having jurisdiction, or the supreme court. Such was the only remedy afforded by our law to the petitioner when remanded, and, as we have said, a discharge from custody by a superior court was final and conclusive.

When our district courts of appeal were established, power was expressly conferred upon them by the constitution “to issue writs of . . . habeas corpus” within their respective jurisdictions. As was already the situation with reference to justices of the supreme court, each of the justices of the court of appeal was given power to issue such writs returnable “before himself.” It is self-evident that by these provisions it was intended to place such courts and the justices thereof in the same position with reference to habeas corpus matters, that the supreme and superior courts were already in. It is not conceivable that it was intended that these appellate courts should have less power than the inferior superior courts in such matters, as would be the case if their determination in habeas corpus proceedings were reviewable by the supreme court. As a matter of fact, the power to issue writs of habeas corpus was conferred in practically the same language as is used with reference to superior courts, and the supreme court, and the language used must be taken as indicating the inten tion to confer the same power that had already been given to the superior and the supreme courts,' with all the incidents thereof.

It is by reason of certain other provisions of the constitution relative to district courts of appeal, that reliance is placed for the claim that the supreme court may review a decision of a district court of appeal in a habeas corpus proceeding, although it may not review a decision of a superior court in such a matter. The first of these is the provision that the supreme court “shall also have appellate jurisdiction in all cases, matters and proceedings pending before a district court of appeal which shall be ordered by the supreme court to be transferred to itself for hearing and decision as hereinafter provided.” It is obvious that it was not the design of this provision to create a right of appeal in any matter, or to give appellate jurisdiction to the supreme court in any matter where no right of appeal was given by some other provision of law. The whole design was simply to give to the supreme court the appellate jurisdiction of the district court of appeal in any case, matter or proceeding, which might be legally transferred from such district court of appeal to the supreme court. The other provision relied on is the following: “The supreme court shall have power ... to order any cause pending before a district court of appeal to be heard and determined by the supreme court. The order last mentioned may be made before judgment has been pronounced by a district court of appeal, or within thirty days after such judgment shall have become final therein. The judgments of the district courts of appeal shall become’ final therein upon the expiration of thirty days after the same shall have been pronounced.” To hold this provision applicable to habeas corpus proceedings would be productive of some peculiar results. As we have already seen, it would render a determination of a superior court in such a proceeding one of greater dignity and more effective than that of a district court of appeal, in so far as the possibility of any review by the supreme court is concerned. The determination of a superior court would not be so reviewable, while that of a district court of appeal could be so reviewed. Likewise, it would make the decision of a single justice of a district court of appeal in such a matter, where he had made the writ returnable before himself, more effective and of greater dignity than the decision of three justices of such court sitting as a court. It would moreover seriously impair the efficacy of the remedy of habeas corpus, in so far as the district courts of appeal are concerned: 1. By preventing one who was improperly' remanded to custody by such a court from immediately inaugurating a new proceeding in the supreme court, and requiring, him to remain in custody at least thirty days before the order for a transfer could legally be made by the supreme court and the inquiry as to the legality of his custody be commenced by such court; and 2. By preventing any judgment of discharge from being effective as a judgment until the expiration of the time within which such an order of transfer might legally be made by the supreme court, viz.: sixty days, and this without any provision under which the person found by the district court of appeal to he illegally confined could, pending further proceedings, be temporarily released from such custody. It goes without saying that an intention to accomplish any such result, so absolutely at war with the whole purpose and scheme of the remedy by habeas corpus, which was designed to summarily release a person from an unlawful custody, should be most clearly and unequivocally expressed, before this court should declare the law to be so written. In view of what we have said as to the well settled law relative to habeas corpus proceedings, we feel that it is a reasonable construction of the provision of the constitution under discussion, that it does not include such proceedings. The words “any cause pending” used therein may reasonably be read, in the connection in which they are used, as not intended to include and as not including any matter as to which the well settled law excludes the idea of any right of review, except where there is a lack of jurisdiction. Such clearly is a, habeas corpus proceeding. But, at any rate, the power of the supreme court to order a transfer is expressly limited to “any cause pending before a district court of appeal.” A habeas corpus proceeding cannot fairly be said to be so “pending” at any time after judgment by such court. Such a proceeding is finally and definitely ended by the judgment, and if the petitioner be ordered discharged thereby, he is at once restored to liberty. The constitutional provision should be considered in the light of this well recognized law, and so considered it appears to us to be a reasonable construction thereof to hold that it does not include habeas corpus proceedings.

Besides uniformly denying such applications for transfer of such matters as have heretofore been made, we have also uniformly, without dissent, immediately entertained original applications for writs on behalf of persons remanded to custody by district courts of appeal, made at any time after such remand and within sixty days thereof, which we would have no right to do if the power of transfer existed. It has also been the uniform practice of our district courts of appeal in habeas corpus proceedings, where the justices of any such court were unable to agree upon the merits of the application, to remand the petitioner to custody, upon the ground that they are unable to agree upon his discharge, those courts, under the constitution, having no power to decide any matter except by unanimous vote. This is a practice fully authorized by the views expressed in such cases as Santa Rosa etc. Co. v. Central St. Ry. Co., 112 Cal. 436, [44 Pac. 733] ; Frankel v. Deideslieimer, 93 Cal. 73, [28 Pac. 794], and Luco v. De Toro, 88 Cal. 26, [11 L. R. A. 543, 25 Pac. 983], which practically authorize an affirmance of proceedings below, where the concurrence of the necessary number of justices in any other action cannot be obtained. Such a remand, of course, terminates the proceeding in that court. It may further be said that the legislature has practically construed the constitutional provision as not including habeas corpus proceedings, by recognizing in section 1475 of the Penal Code, the right to an original application to the supreme court in the event of a denial of relief by a district court of appeal.

No very dire results are to be apprehended from this construction of the constitutional provision. Certainly the situation is no worse by reason thereof than it has been during all of the period preceding the establishment of our district courts of appeal. If it develops that there is any substantial conflict between decisions of different district courts of appeal on any question presented on an application in habeas corpus, consideration of the question can be had by this court on an original application for a writ of habeas corpus to this court by the person remanded to custody. The general questions involved in this particular case are already before this court for consideration in a proceeding of another character transferred from the district court of appeal of the second district.

For the reasons stated we have always heretofore ruled that we have no such power to transfer in habeas corpus proceedings, and we adhere to such conclusion.

Henshaw, J., Sloss, J., Melvin, J., and Lorigan, J., concurred.