S. F. No. 10931.
January 10, 1924.
APPLICATION for a Writ of Prohibition to prevent issuance of a Writ of Mandate by the District Court of Appeal. Alternate writ ordered in force until certain date.
The facts are stated in the opinion of the court.
U.S. Webb, Attorney-General, Sloane Sloane, Crouch Sanders and F.G. Blood for Petitioners.
Jesse George for Respondents.
The petitioner seeks a writ of prohibition to prevent the district court of appeal from issuing its writ of mandate in pursuance of an opinion rendered by that court November 24, 1923. An alternative writ of prohibition was issued, returnable January 8, 1924. The only question which this court considered worthy of consideration upon the application for the writ of prohibition was the question as to whether or not the district court of appeal should issue its writ of mandate before the expiration of sixty days from the rendition of its opinion and judgment. The respondents concede that under the opinion of the district court of appeal in Noel v. Smith, 2 Cal.App. 158 [ 83 P. 167], in which a rehearing was denied by this court, and under dicta in the decisions of this court ( In re Wells, 174 Cal. 467 [ 163 P. 657]; In re McCowan, 175 Cal. 51 [ 170 P. 1100]), the respondents should not issue their writ of mandate until after the expiration of sixty days, but it is contended that these decisions are in conflict with the case of In re Zany, 164 Cal. 724 [ 130 P. 710], and it is, therefore, urged that we reconsider the question in the light of the argument advanced by respondents. We do not, however, consider the question an open one in this state. The decisions above referred to merely state the general rule of practice which has been followed in a multitude of cases since the adoption of the amendment to the constitution and is the settled rule of practice in this court.  The decision of Noel v. Smith, supra, was rendered within the first year after the organization of the district courts of appeal under the constitutional amendment of 1904 to article VI, section 4 (Stats. 1903, p. 737), and is, therefore, entitled to great weight in the construction of that amendment ( Knowles v. Yates, 31 Cal. 82; 5 Cal. Jur., p. 603, sec. 36). The decision of this court in denying a rehearing in Noel v. Smith, supra, and In re Wells, 174 Cal. 467 [ 163 P. 657], were rendered before the amendment of 1918 to article VI, section 4 (Stats. 1918, p. 1956), to the constitution readopting the same provisions with reference to the power and jurisdiction of district courts of appeal. The readoption of these, provisions without change in effect adopted the interpretation theretofore placed thereon by the courts, which had construed the word "cause" to include original proceedings for mandamus ( People v. Webb, 38 Cal. 467; Hyatt v. Allen, 54 Cal. 353; Morton v. Broderick, 118 Cal. 474 [50 P. 644]; 5 Cal. Jur., 600, sec. 35).
It follows that the district court of appeal had no jurisdiction to issue its writ of mandate until the expiration of sixty days from the judgment. The demurrer to the petition is overruled, and the alternative writ of prohibition will remain in force until and including January 23, 1924.
Lawlor, J., Kerrigan, J., Lennon, J., Seawell, J., Waste, J., and Myers, J., concurred.