Opinion
Rehearing Denied April 11, 1930
Hearing Granted by Supreme Court May 15, 1930
Certiorari to Review an Order of Superior Court, Santa Barbara County; Frank C. Collier, Judge.
D.T. Blodgett was cited to appear before the Superior Court of the County of Santa Barbara to show cause why he should not be punished for contempt of court, was found guilty of contempt, and he files a petition for writ of review.
Order annulled, and proceeding remanded.
COUNSEL
D.T. Blodgett, in pro. per.
Schauer, Ryon & Goux, Heaney, Price & Postel, and Atwell Westwick, all of Santa Barbara, for respondent.
OPINION
CONREY, P.J.
By an order duly issued and served, petitioner Blodgett was cited to appear before respondent court, to show cause why he should not be punished for contempt of court, for having willfully and knowingly filed with the clerk of said court a certain document styled "Points and Authorities," in an action then pending in the court. This order to show cause was made by Hon. Frank C. Collier, at that time acting as a judge of said court. In response to the citation, the said Blodgett, who was plaintiff in said action, filed an answer wherein he alleged that "the Honorable Frank C. Collier is so greatly incensed against this plaintiff that it would be impossible to have a fair and impartial hearing of the issues of law and fact in the contempt proceedings instituted by the said Frank C. Collier in the above-entitled action on the 16th day of December, 1929; that said feeling against this plaintiff in the above-entitled action was occasioned by the receipt of a letter by the said Frank C. Collier on the 14th day of December, 1929, a copy of which letter is attached hereto marked ‘Exhibit A.’ " The copy of letter was attached to the answer, which was duly verified. Nevertheless, the court and the said judge acting therein and ignoring the objections stated in said answer proceeded to hear and determine the contempt proceeding, found Blodgett guilty of contempt of court, and imposed upon him a sentence of punishment therefor. Immediately thereafter the petition for writ of review herein was filed. The preceding statement of facts is supported by the record as shown in the return of the writ.
In this proceeding it is not necessary for us to pass upon the merits of the contempt proceeding. The sole question involved herein relates to the authority of Judge Collier, to act in the matter, and the jurisdiction of the Superior Court to act through said judge while the matter was in the condition shown by the record.
Section 170 of the Code of Civil Procedure, as amended in the year 1929 (St.1929, p. 957), prescribes in much detail the procedure to be followed, where it is claimed that by reason of bias or prejudice of a judge a fair and impartial trial cannot be had before him:
"170. No justice, judge or justice of the peace shall sit or act as such in any action or proceeding: ***
"5. When it is made to appear probable that, by reason of bias or prejudice of such justice, judge, or justice of the peace a fair and impartial trial cannot be had before him.
"Whenever a judge of a court of record shall have knowledge of any fact or facts which, under the provisions of this section, disqualify him to sit or act as such in any action or proceeding pending before him, it shall be his duty to declare the same in open court and cause a memorandum thereof to be entered in the minutes. ***
"Whenever a judge of a court of record who shall be disqualified under the provisions of this section, to sit or act as such in any action or proceeding pending before him, neglects or fails to declare his disqualification in the manner hereinbefore provided, any party to such action or proceeding who has appeared therein may present to the court and file with the clerk a written statement objecting to the hearing of such matter or the trial of any issue of fact or law in such action or proceeding before such judge, and setting forth the fact or facts constituting the ground of the disqualification of such judge."
Immediately following the language above quoted the section contains provisions under which the judge may either consent to trial of the action or proceeding before another judge, or may file his answer to the allegations made by the objecting party. The section then proceeds as follows:
"No judge of a court of record, who shall deny his disqualification, shall hear or pass upon the question of his own disqualification; but in every such case, the question of the judge’s disqualification shall be heard and determined by some other judge agreed upon by the parties who shall have appeared in the action or proceeding, or, in the event of their failing to agree, by a judge requested to act by the chairman of the judicial council. ***" Provision is further made for the selection of another judge to hear the action or proceeding when the disqualification of the first judge has been established, or when the judge has consented that the matter be tried before another judge.
We are of the opinion that the provisions of law concerning the right of a party to have the trial of an action or proceeding transferred from a disqualified judge to another judge not so disqualified are applicable to contempt proceedings. The decisions upon which respondent relies in relation to this question were made prior to the enactment of the amended section 170, Code of Civil Procedure, containing the provisions hereinabove stated.
The next contention of respondent is that courts have inherent power to punish for contempt, which power cannot be abridged by statute. This rule is well supported by authority. Lamberson v. Superior Court, 151 Cal. 458, 91 P. 100, 11 L.R.A.(N.S.) 619; In re Shortridge, 99 Cal. 526, 34 P. 227, 21 L.R.A. 755, 37 Am.St.Rep. 78; Paddon v. Superior Court, 65 Cal.App. 34, 223 P. 91. But it is further true, and is so affirmed in all of the above-cited cases, that the Legislature may regulate the procedure to be followed in contempt proceedings.
The provisions of section 170, Code of Civil Procedure, as amended by the statute of 1929, supra, do not in the slightest degree abridge the power of respondent court to punish petitioner for any contempt committed by him. If upon a hearing before a qualified judge, of petitioner’s challenge to the qualifications of Judge Collier to hear the contempt proceeding, it shall be determined that Judge Collier is not disqualified, he may then proceed to hear and determine the merits of the contempt proceeding. If, on the other hand, it be determined that Judge Collier is disqualified, the power of the court remains unimpaired to hear and determine said contempt proceeding through the agency of another judge. The order now under review is void, not because the court is without jurisdiction, but because in the present status of the proceeding Judge Collier is without authority to hear and determine the merits thereof.
The order is annulled, and the entire subject-matter of said contempt proceeding is remanded to respondent court for further action in conformity with this decision.
We concur: HOUSER, J.; YORK, J.