Opinion
Hearing Granted by Supreme Court May 5, 1927.
Application by Dave Martello for a writ of prohibition to be directed to the Superior Court in and for Los Angeles County, R. E. Abbott, formerly a Judge pro tempore thereof and another. Alternative writ vacated, and peremptory writ denied.
COUNSEL
Faucett & Ring, of Los Angeles, for petitioner.
Overton, Lyman & Plumb, of Los Angeles, amici curiæ, for respondents.
Max Schleimer, of Los Angeles, for respondent Abbott and as amicus curiæ for other respondents.
OPINION
WORKS, P. J.
Petitioner was one of several defendants in an action pending in respondent court, in which action one Ranney was the plaintiff. On September 28, 1926, under proper title of court and cause, the defendants and Ranney stipulated:
"That the said cause may be tried before Robert E. Abbott, a member of the bar, admitted to practice before the Supreme Court of the State of California, and that his action in the trial of said cause shall have the same effect as if he were a judge of this court."
The stipulation also provided: "Fees of judge pro tem. to be taxed as costs." Appended to the stipulation was an order, signed by one of the judges of respondent court, approving "the selection of Robert E. Abbott to try the above entitled cause." Acting pursuant to the stipulation and to the order approving it, respondent Abbott began a trial of the cause, heard all the evidence, took the cause under submission, and on October 19, 1926, directed judgment for the plaintiff. On November 2, 1926, the people of the state adopted certain amendments to the Constitution, and these changes took effect on the same day. Thereafter respondent Abbott was about to sign and to file with respondent Lampton his findings and judgment in the cause which had been submitted to him as a judge pro tempore, when petitioner, believing that the powers of the judge pro tempore had been terminated by the recently adopted constitutional amendments, applied to this court for the writ of prohibition, to prevent further action by respondent Abbott in the cause, and an alternative writ issued. We are now to determine whether petitioner shall have a peremptory writ. All questions in the proceeding arise upon the face of the petition for the writ.
Before the adoption of the amendments of 1926, section 6 of article 6 of the Constitution contained this provision:
"There may be as many sessions of [the superior] court, at the same time, as there are judges thereof."
This language applied only to the superior court in and for the city and county of San Francisco. Prior to the amendments of 1926 section 7 of the same article read, in part:
"In any county, or city and county, other than the city and county of San Francisco, in which there shall be more than one judge of the superior court, the judges of such court may hold as many sessions of said court at the same time as there are judges thereof. ***
Before the amendments mentioned section 8 of the article stood as follows:
"A judge of any superior court may hold a superior court in any county, at the request of a judge of the superior court thereof, and upon the request of the governor it shall be his duty so to do. But a cause in the superior court may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court, and sworn to try the cause, and the person so selected shall be empowered to act in such capacity in all further proceedings in any suit or proceedings tried before him until the final determination thereof. There may be as many sessions of a superior court at the same time as there are judges thereof, including any judge or judges acting upon request, or any judge or judges pro tempore. The judgments, orders, acts and proceedings of any session of any superior court held by one or more judges acting upon request, or judge or judges pro tempore, shall be equally effective as if the judge or all of the judges of such court presided at such session."
Before the amendments of 1926 sections 6 and 7 had never been altered. Until 1926 they both stood as they were when the Constitution was originally adopted. The text of section 8, as above set forth, represents an amendment adopted by the people at the general election of 1922, although the section had been cast in much the same form by an amendment adopted in 1910.
By the amendments of 1926 the language of section 6 providing for the number of sessions of the superior court was changed to read thus:
"There may be as many sessions of a superior court, at the same time, as there are judges elected, appointed or assigned thereto."
This language was not applied alone to the superior court in and for the city and county of San Francisco, but to the superior court generally. At the same time section 7 was so amended as to strike out all reference to the number of sessions which may be held by the superior court, and section 8 was so altered as to eliminate all provision for the number of sessions of the court, and, as well, all reference to judges pro tempore. These three amendments were adopted by the people in a group; that is, they were incorporated in one so-called "constitutional amendment" which was voted upon by the electorate as a whole. By the same "constitutional amendment," that is, in the same group of amendments, and voted upon at the same time and in the same manner, the people added a new section to article 6, to be known as section 1a. This section provides for a judicial council, and it directs the chief justice of the Supreme Court, as chairman of the council, which office is declared by the amendment to rest in him, to "provide for the assignment of any judge to another court of a like or higher jurisdiction to assist a court or judge whose calendar is congested, to act for a judge who is disqualified or unable to act, or to sit and hold court where a vacancy in the office of judge has occurred."
Considering together the various amendments embodied in the single "constitutional amendment" adopted at the election in November, 1926, it is manifest to us that the sentence by one of them incorporated in section 6, and above quoted, must be construed as if it read: "There may be as many sessions of a superior court, at the same time, as there are judges elected [by the people], appointed [by the governor] or assigned [by the chairman of the judicial council] thereto." It is further manifest to us, upon the face of the amendments when considered together, that since November 2, 1926, litigants have not possessed the right to stipulate for judges pro tempore of the superior court to try their actions, nor has the superior court had the power to approve such selections. This result appears from the joint operation of the amendment of section 8, striking out all reference to judges pro tempore, and of the amendment of section 6, in effect providing that no sessions of the superior court may be held by judges pro tempore, but only by judges elected, appointed and assigned in the modes already pointed out. This view disposes of the contention of respondents that section 72 of the Code of Civil Procedure, relating to judges pro tempore of the superior court, is still in operative effect.
We have seen that by the constitutional amendments of 1926 the people wiped out the pre-existing right to select judges pro tempore. The question yet remaining to be determined in the present proceeding is this: Did the amendments operate to terminate the powers of judges pro tempore who had been selected and who had entered upon the discharge of their duties before November 2, 1926, the date upon which the amendments were incorporated in the organic law? Respondents, in addition to the point they make, based upon the assumed continued existence of section 72 of the Code of Civil Procedure, present several contentions upon the question just stated. We think, however, that none of them, except one, presents matter which we need pause to consider. Therefore, without further reference to the others, we shall now address ourselves to that one. It is insisted that the amendments of 1926, if they so operate as to terminate the powers of a judge pro tempore who had been selected and who had entered upon the discharge of his duties before the amendments were adopted, are unconstitutional to that extent, as an infringement of the clause of the Constitution of the United States (article 1, § 10, cl. 1) which forbids the passage of laws impairing the obligation of contracts.
In considering this question it becomes necessary, first, to determine whether the stipulation selecting respondent Abbott as a judge pro tempore is a contract within the meaning of that clause of the national organic law which is above mentioned. The right of parties litigant to "agree" upon a judge pro tempore to try their cases, under section 8 of article 6 of the Constitution as it stood when respondent Abbott was selected to act in that capacity by petitioner and Ranney, was somewhat akin to the right, often conferred by statute, to submit disputed matters to arbitration. The Supreme Court has said:
"The trial of a cause before a person selected by the parties to act as judge may be likened to an arbitration, in which issues of law and fact are determined by ‘one or more persons’ designated by the parties in interest." Graziani v. Denny, 174 Cal. 178, 162 P. 397.
If such a trial is like an arbitration it seems not too much to say that a stipulation for the trial is like an agreement for arbitration. It is well settled that such an agreement, when fully executed by the rendition of award, binds the parties to an obedience to the award, even when they have not agreed expressly so to be bound. The mere agreement to submit to arbitration is enough impliedly to obligate the parties to observe the terms of the award. Robinson v. Templar Lodge, 97 Cal. 62, 31 P. 609. And it would seem to follow logically that if two parties agree to submit a dispute to arbitration and enter upon a trial of the controversy before duly selected arbitrators, each of them is bound to go forward with the hearing to the end, or to suffer the consequences of a failure to participate in it. It further follows that petitioner and Ranney were obligated, under the stipulation entered into by them, to proceed to a conclusion of the trial commenced before respondent Abbott.
The view just expressed is based upon the law of arbitration and upon the analogy therewith which springs from the facts of the present case. The view may be reinforced by a consideration of those facts themselves, in the light of the provisions of the Constitution under which the stipulation between the parties was made. Section 8 of article 6, as it stood at the time the stipulation was made and at the time when respondent Abbott had heard the evidence in the cause intrusted to him and had ordered judgment upon it, provided that "a cause *** may be tried by a judge pro tempore, *** agreed upon in writing by the parties litigant. ***" Not only so, but the section provided that "the person so selected shall be empowered to act in such capacity in all further proceedings in any suit or proceedings tried before him until the final determination thereof." Under familiar rules of law these provisions became a part of the stipulation selecting respondent Abbott and must be read with its express language in order to admeasure its legal effect. If the contention of petitioner is to prevail, respondent Abbott is robbed of authority to act as judge pro tempore in the cause confided to his judgment "until the final determination thereof," despite the agreement of the parties to that effect which was impliedly imported into the stipulation from the Constitution. Ranney, then, will be deprived of the fruits of the stipulation-of the judgment which was about to ripen from the exercise of jurisdiction by the judge pro tempore up to the point at which it is sought to halt it. The stipulation provided that the fees of the judge pro tempore were to be taxed as costs. This was doubtless a proper clause in the concord of the parties, but if it was not, we must presume that the charges of the stipulated official must be met by someone, for it cannot be assumed that his services were to be rendered gratuitously. Again, ordinary costs must have been incurred in the hearing before him, or certainly, they may have been incurred, and so far as the question here presented is concerned the result is the same. Yet again, each of the parties, we must assume, became liable for the payment of counsel fees arising from the hearing before the judge pro tempore. If petitioner’s contention is to be upheld, all these costs and expenses have been incurred for naught, and the money to meet them has been or will be thrown away, and all because of the exercise by the people of the right to amend the Constitution.
It would seem that the liabilities just mentioned have been incurred because of the stipulation into which Ranney and petitioner entered. When parties commence a trial before an elected or an appointed judge, it is true that they are bound by the law to conclude it. Neither can escape the grind of the wheels of justice. It is true, also, that a judge pro tempore has all the powers, in a cause before him, of the ordinary judge, and that the parties who selected him, because of that fact, are forced by the law to conclude the trial of the cause. Nevertheless, they need not originally have gone before him except upon a meeting of their minds under a free exercise of volition. It is for that reason, doubtless, that the Supreme Court has likened a trial before a judge pro tempore to a trial before an arbitrator. It is not the compulsion of the law, originally, which takes parties before a judge pro tempore, but the compulsion of the stipulation of which he is the creature. A denial of the right to conclude a trial before him is therefore the denial of a right to carry out their stipulation-their contract.
Petitioner says that the stipulation here in question is not a contract because under the Constitution the selection of the judge pro tempore must have been approved by the court in which he was to sit. This requirement, however, affected in no degree the right of the parties to contract. As a judge pro tempore, selected by agreement to sit in a particular case, is nevertheless to engage in the administration of a public trust, government is interested in the selection of a proper person to discharge the trust, and the approval of the court was intended as a safeguard against the selection of improper persons. Such approval affected not the mutual obligations of the parties to the contract here involved, but those obligations became effective and binding only upon the approval. Surely, the stipulation is no less a contract, when it does become effective, even if that state of affairs eventuates only after an approval by the court. The parties have agreed to do a particular thing and by the agreement they have finally become obligated to do it. Petitioner inveighs against the sanctity of the stipulation upon the ground stated in the following quotation:
"Contracts which have a tendency to obstruct or interfere with the administration of justice are clearly against public policy." 6 Cal.Jur. 130.
This language has no application here. The stipulation did not interfere with the administration of justice, but was in furtherance of it. The question is whether the amendments to the Constitution interfere with the contract, impair its obligation. Petitioner makes other points under his contention that the stipulation was not a contract, but we think they are not of sufficient merit to require a specific consideration.
It would seem that the paper which the parties signed, in the light of the conditions under which it was executed, possessed all the elements of a contract. There were competent parties, of course. There was a subject-matter to be dealt with, in an action to be tried. Consideration was present in the advantage to be derived from an early trial of the cause, and also in a burden contemplated by the parties-the payment of the fees of the judge pro tempore by the defeated party.
The stipulation was a contract, and there is no doubt, coming to the final question, that its obligation is impaired by the amendments to the Constitution, if they be construed as contended by petitioner. A Legislature may not prevent the carrying out of a contract to submit a dispute to arbitration, the contract having been executed pursuant to authority granted by a pre-existing law. State v. McPeak, 31 Neb. 139, 47 N.W. 691; State v. Thayer, 46 Neb. 137, 64 N.W. 700. The Supreme Court has made the following quotation from an opinion of the Supreme Court of the United States:
"The obligation of a contract ‘is the law which binds the parties to perform their agreement.’ The prohibition has no reference to the degree of impairment; the largest and the least are alike forbidden." Bates v. Gregory, 89 Cal. 387, 26 P. 891.
The same authority has again been quoted thus:
"The obligation of a contract includes everything within its obligatory scope. Among these elements nothing is more important than the means of enforcement. This is the breath of its vital existence. Without it, the contract, as such, in the view of the law, ceases to be, and falls into the class of those imperfect obligations, as they are termed, which depend for their fulfillment upon the will and conscience of those upon whom they rest." Welsh v. Cross, 146 Cal. 621, 81 P. 229, 106 Am. St. Rep. 63, 2 Ann. Cas. 905.
The alternative writ of prohibition is vacated and a peremptory writ is denied.
We concur: CRAIG, J.; THOMPSON, J.