From Casetext: Smarter Legal Research

Myers v. Hamilton

Supreme Court of California
Mar 24, 1882
60 Cal. 289 (Cal. 1882)

Opinion

         Department Two

         Application for a writ of certiorari.

         COUNSEL

         Judges of the Superior Court are a part of the judicial department of the State, and cannot be vested with the exercise of " mere ministerial power ," assuming that this is the result of their action here. (Sec. 1, Art. iii, New Const.; People v. Provines , 34 Cal. 520.) In hearing the petition of Carroll Cook et al.--in ordering Myers to be served--in determining the allegations of the petition to be true, and in passing upon the truth or otherwise of the statements contained in Brown's affidavit, and also upon his qualifications, they acted judicially. (8 Johns. 69; 16 id. 49; People v. Provines , 34 Cal. 541; Robinson v. Supervisors , 16 id. 208; C. C. P. § 1067.)

          R. A. Redman, J. C. Martin, and W. H. & J. R. Glascock, for Plaintiff.

         G. E. Whitney, for Defendants.


         The act complained of is not judicial. (4 B. Monroe, 500, People v. Bush , 40 Cal. 344; S. V. W. Co. v. Bryant , 52 id. 136; People v. Oakland Board Ed'n , 54 id. 377.)

         OPINION          The Court:

         The petitioner applies for a writ of review to correct alleged errors of the respondents in declaring a vacancy in the office of Supervisor, and in appointing a person to fill the vacancy.

         Even if the appointing power rested with the respondents, the exercise of that power was not the exercise of a judicial function within the meaning of Section 1068, C. C. P. (People v. Bush , 40 Cal. 344.)

         The motion to quash the proceedings is granted.


Summaries of

Myers v. Hamilton

Supreme Court of California
Mar 24, 1882
60 Cal. 289 (Cal. 1882)
Case details for

Myers v. Hamilton

Case Details

Full title:F. F. MYERS v. N. HAMILTON et al., Judges of the Superior Court etc.

Court:Supreme Court of California

Date published: Mar 24, 1882

Citations

60 Cal. 289 (Cal. 1882)

Citing Cases

Wulzen v. Board of Supervisors of City & County of San Francisco

It is admitted on all hands that certiorari does not lie to review the action of an inferior tribunal or…

People v. Schmitz

The record shows that the judgment and order were entered on the same day with the appeal, and the record…