Opinion
Page __
__ Cal.App.2d __249 P.2d 324MALONE et al.v.SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al. Civ. 15245.California Court of Appeals, First District, Second DivisionOct. 30, 1952.Hearing Granted Dec. 19, 1952.
Rehearing Denied Nov. 29, 1952.
William J. Dowling, Jr., San Francisco, for petitioners.
Delany, Fishgold, Werchick & Minudri, San Francisco, for respondents.
[249 P.2d 325] GOODELL, Justice.
In a proceeding filed in the Superior Court entitled 'Application for order directing perpetuating testimonies and for order directing issuance of subpoenas duces tecum', Elmer P. Delany (named therein as the real party in interest) sought to take the testimony of petitioners and to have certain documentary evidence produced by them. The court so ordered, and this proceeding followed.
The showing before the Superior Court, which was made by a verified petition supplemented by an affidavit, is now attacked as insufficient under §§ 2083-2089, Code Civ.Proc.
Section 2084 provides that 'The applicant must produce to a judge of the superior court a petition, verified by the oath of the applicant, stating: 1. That the applicant expects to be a party to an action in a court in this state, and, in such case, the names of the persons whom he expects will be adverse parties; * * * and, 3. The name of the witness to be examined, his place of residence, and a general outline of the facts expected to be proved. * * *'
In Kutner-Goldstein Co. v. Superior Court, 212 Cal. 341, 345, 298 P. 1001, 1003, the court said: 'Of the eight requirements under the old practice, only three are found in our statute, namely: (1) The reason for the perpetuation of the testimony, that is, that the applicant expects to be a party to an action; (2) the names of the witnesses to be examined and their places of residence; and (3) a general outline of the facts expected to be proved.' (Emphasis added.)
It will be assumed herein that a cause of action need not be pleaded in the application. Brown v. Superior Court, 34 Cal.2d 559, 563, 212 P.2d 878.
The application of respondent Delany alleges 'That he expects to be a party plaintiff in an action or actions to be brought in a court or courts of this state' and names William M. Malone and Webster K. Nolan as expectant adverse parties therein. It names the witnesses to be examined and gives their places of residence, as required by § 2084(3). It gives a 'general outline of the facts expected to be proved', but such outline is attacked herein as being insufficient as a compliance with § 2084(3).
The application then alleges that the prospective 'action or actions will involve the following issues, to wit:
'a. The illegal appointment and/or appointments of persons to the Democratic County Central Committee of the City and County of San Francisco.
'b. The illegality of certain appointive positions on said * * * Committee, and of the acts of said * * * Committee, in which said illegally appointed persons participated.
'c. The illegal conduct of the business, affairs and concerns of said * * * Committee.
'd. The illegal handling and expenditures of the funds of said * * * Committee.
'e. The calling and holding of illegal meetings of said * * * Committee.
'f. The calling and holding of putative meetings of said * * * Committee.
'g. The failure to call legal meetings of said * * * Committee.'
It names five members of the committee as 'acting and/or de facto' officers thereof i. e.: said Malone, chairman; Arthur T. Poheim, vice-chairman; Joseph T. Curley, secretary; J. Stanly Klein, treasurer, and Joseph P. Byrne, financial secrtary. It alleges that said Nolan 'is an acting and/or de facto appointed member of said * * * Committee'.
It alleges that Malone is expected to testify that he 'is acting as the chairman of said * * * Committee; that he has illegally appointed various persons to said Committee; that he has allowed said illegal appointees to participate in the affairs of said Committee; that by use of said illegal appointees' votes, said William M. Malone has effectively blocked the conduct of said Committee from the duties and purposes for which it legally exists'. It alleges that said Nolan is expected to testify that he 'is an appointed member of the * * * Committee; [249 P.2d 326] that he was illegally appointed to said position by said William M. Malone; that as such illegally appointed member of said Committee he has participated in the voting and the actions of said * * * Committee; that he holds the office of * * * Committeeman * * * illegally.'
The affidavit states that respondent Delany is a duly elected member of the Committee; that Poheim acted as secretary of a committee meeting held on October 3, 1951; 'that the roll call of persons attending said meeting, and the minutes thereof, are necessary, material and admissible to the issues involved herein, in that they will disclose the names of all persons in attendance at said meeting, including those which were there under color of right as appointed members of said Committee, whose right and title to office may be the subject of a proceeding in the nature of quo warranto, or to a proceeding for injunctive relief against the chairman of said * * * Committee to prevent the calling of further meetings without notice and with persons thereat not elected and qualified according to law.' It alleges that the testimony of Curley is required and the minutes in his possession as secretary 'are necessary, material and admissible to the issues and matters involved herein, in that they contain evidence showing when, how, and under what pretext members have been appointed to said * * * Committee, as well as the names of all those appointed, which would be involved in a proceeding quo warranto to try said appointed members' title to their office;' (Emphasis added.)
In his brief respondent Delany says:
'The affidavit goes further in showing the nature of the contemplated actions which is beyond the rules previously stated, and apprises the parties expectant of the nature of the wrong and the remedy.
'a. The application and affidavit in support of subpoena duces tecum show that real party of interest seeks to test the right of 'appointed' persons, to sit on the County Committee.
'The application and the affidavit in support of subpoena duces tecum showed that real party in interest seeks to prove that at least one of the parties expectant, and others, have been appointed to the County Committee, the subject of the within controversy. Section 2833 of the Elections Code of the State of California reads as follows:
"In any city and county the county central committee of each party shall be elected by each assembly district and shall consist of five members from each assembly district in the city and county. The county committee in any city and county may increase its membership by a majority vote of the committee."
(The emphasis is respondent Delany's.)
Four distinct points are then set forth, with authorities, to show that the emphasized part of § 2833 is 'clearly unconstitutional.'
From the showing of the applicant and from his brief it appears that the avowed purpose of the contemplated action is to 'test the right of 'appointed' persons, to sit on the County Committee.' Quo warranto is the exclusive procedure to accomplish that result. 22 Cal.Jur. 210, 211.
One of petitioners' main contentions is that respondent Delany failed to show that he occupied any special status, or had any legal standing, qualifying him to prosecute any prospective action or proceeding to challenge the appointment of a committeeman, or to unseat him. If he had no such qualification it would follow that he had no right under §§ 2083-2089 to perpetuate anybody's testimony, since according to the Kutner-Goldstein case, supra, the only reason why he could invoke those sections would be the fact that he expected 'to be a party to an action'.
Since a quo warranto proceeding must be 'brought by the attorney-general, in the name of the people of this state', § 803, Code Civ.Proc., it is clear that the applicant could not possibly be a party to such a proceeding. Nor could Malone (named as an expectant adversary) be a party since it would be brought against the person holding or exercising the challenged office, § 803, supra. Moreover, even a 'relator is not a party to the action, and an attempt to make him such, or an attempt by a relator [249 P.2d 327] to prosecute a proceeding in his own name, is ineffective for any purpose'. 22 Cal.Jur. p. 219; People ex rel. Hershey v. Reclamation District No. 108, 169 Cal. 786, 147 P. 1176; People ex rel. Cage v. Petroleum Rectifying Co., 21 Cal.App.2d 289, 68 P.2d 984.
In respondent Delany's brief the statement is made that 'Before any injunctive proceeding, or quo warranto proceeding may be instituted, it is of course necessary that the facts of appointment and the identity of those appointed be reduced by way of testimony.' No authority has been presented supporting the proposition that a person expecting to urge the commencement of a quo warranto proceeding can use the machinery of §§ 2083-2089 to procure evidence for such proceeding. Hollman v. Warren, 32 Cal.2d 351, 196 P.2d 562, cited by respondent Delany, is a mandate case which deals only with the constitutionality of the statute limiting the number of Notaries Public in San Francisco and contains nothing one way or the other on the question now presented.
An injunction suit would not be available to the applicant since 'It is thoroughly settled that title to public office may not be tried in a suit for an injunction'. Barendt v. McCarthy, 160 Cal. 680, 683, 118 P. 228, 229; Purviance v. Compton, 94 Cal.App. 277, 280, 271 P. 120.
For these reasons we must conclude with respect to this phase of the case that the applicant was not entitled to the perpetuation of petitioners' testimony or to the issuance of subpoenas duces tecum.
The remaining issues dealing with claimed irregular meetings:
The first two issues which deal with appointive members have been discussed. Of the other five, four of them deal with alleged illegal conduct of the committee's 'business, affairs and concerns'; with the alleged calling and holding of illegal and putative meetings, and with the failure to call legal meetings.
The application alleges that illegal meetings have been called and held, and there has been a failure to call legal meetings; that the secretary of the committee has notified illegal members of illegal meetings and has failed to notify legal members of legal meetings; that he has possession and control of the official minutes and correspondence of the committee, all of which, it is alleged, are admissible and material in the prospective action.
In the first place, it would appear that these grievances are by-products of the claimed appointments of committeemen under § 2833, Elections Code, and, if so, they are connected with the first two issues already discussed. But, secondly, and in any event, there does not appear from the 'outline' how any future litigation could possibly be corrective of irregularities in the conduct of meetings already held and conducted. While it might not be necessary, as we have seen, that an application to perpetuate testimony must state a cause of action, still it would not follow that testimony could be taken under §§ 2083-2089, Code Civ.Proc., to remedy alleged failures to properly call meetings or to correct procedural irregularities in the conduct thereof when such litigation would present no justiciable controversy. For these reasons we are satisfied that the applicant was not entitled to the perpetuation of petitioners' testimony on this phase of the case, or to the issuance of subpoenas duces tecum thereon.
The issue dealing with the alleged 'illegal handling and expenditures of the funds' of the committee:
This presents an altogether different question from the one just discussed.
The application alleges that there have been concealed from the committee as a whole 'the assets, money and funds' of the committee, and the handling and expenditure thereof; that the secretary has possession and control of the official minutes and correspondence of the committee, all of which are admissible and material in the prospective action. It alleges that the acting treasurer and financial secretary are in charge of the committee's funds and expenditures, and that the 'assets, moneys and funds, are concealed from the knowledge of the membership of said * * * Committee'- [249 P.2d 328] ; that in their respective capacities, they 'have personal knowledge of all of said financial affairs, and that they have in their possession and under their control, the books of account, the financial records, the checks, check-books, and all of the other financial data concerning said * * * committee, which said documents contain evidence which is admissible and material to the issues involved in the action in which said applicant expects to be a party plaintiff.'
The affidavit states that the minutes are in the secretary's possession and control 'and that said minutes would be further necessary, material, and admissible, so as to show the manner in which the financial affairs of said * * * committee have been withheld from the membership at large, even though the applicant herein has demanded the same, which said information would be evidence in a suit for an accounting.'
It thus appears that an action for an accounting is contemplated--a question which is severable from the question of trying title to public office, and from the question of irregular meetings.
The accounting has to do with funds in the hands of public officers, and it is alleged that the applicant, who is a member of the committee, expects to be the plaintiff in such action. In Hollman v. Warren, 32 Cal.2d 351, 357, 196 P.2d 562, it was held that the petitioner there, aside from being an applicant for a notarial commission, could maintain the proceeding in mandate as a citizen and taxpayer because the case was one involving public rights and duties. We do not believe that the petitioners' attack on the applicant's right to perpetuate testimony (which attack we hold to be well taken) holds good as to such proceedings as those now under discussion. In other words while the applicant could not be a party in quo warranto, he could qualify as a party plaintiff in accounting proceedings because he is a member of the committee, and because the subject-matter of such case would be the handling of funds in the hands of public officers.
There is nothing in the record to indicate the source or sources of such funds, or that they are derived from taxation, but it would seem to be sufficient that it is alleged that funds in the hands of public officers have been illegally handled and administered; and that the applicant is a committee-member.
Under the liberal rule of the Kutner-Goldstein case, 212 Cal. 345, 298 P. 1001, 1003, that 'Ordinarily nothing more than the statutory requirements is necessary to be shown in the application' it would seem that the 'outline', in so far as this issue is concerned, is sufficient.
We fully appreciate that the 'outline' with respect to the accounting phase of the case is extremely broad and general but presumably the persons whose testimony is sought under §§ 2083-2089 will have ample protection under the safeguards indicated in Brown v. Superior Court, 34 Cal.2d 559, 566, 212 P.2d 878, 882. There the trial court had ruled that the witnesses need not complete their depositions because a cause of action had not been stated in the application for the testimony. This was held to be error. The Supreme Court recognized that some of the questions asked might have been objectionable, but said: 'Inquiry into the matter should not be foreclosed since, in a proceeding to perpetuate testimony, as in other deposition proceedings, any question asked is subject to objection on legal grounds, and a witness need not answer until the court rules that the question is proper and should be answered. Code Civ.Proc. § 1991.'
Under the orders sought to be annulled herein no questions should be directed to be answered relating to appointments to the committee under § 2833 of the Elections Code, or the legality or constitutionality of that section, since it appears for reasons already given that the applicant could not be a party in quo warranto proceedings. Nor should any questions be directed to be answered relating to the alleged illegal meetings. On the accounting phase of the case (last above discussed), in our opinion the testimony may be perpetuated.
[249 P.2d 329] Accordingly a peremptory writ is denied and the alternative writ is discharged, without costs to either side.
NOURSE, P. J., and DOOLING, J., concur.