Metropolitan Water District v. Superior Court

THOMPSON, J.

This is an original proceeding in

rnmdamus

to compel the respondent Superior Court in and for the County of Riverside and the respondents Hon. O. K. Morton and Hon. G. R. Freeman, as judges thereof, to vacate and set aside a voluntary order disqualifying, themselves to sit or act in eminent domain proceedings now pending in the respondent Superior Court, entitled

“The Metropolitan Water District of Southern California, a Municipal Corporation, Plaintiff,

v.

Henry Upton et al., Defendants,”

and numbered 24185 therein, and to compel respondents to proceed with the trial and determination of the action. The return to the alternative writ of mandate issued out of this court was made by general demurrer to the petition.

The order of disqualification was made not by reason of any actual bias or prejudice, which is eliminated from consideration herein, but “under and by reason of the provision of sub-section 6 of section 170” of the Code of Civil Procedure, which, so far as relevant to the question here raised, provides:

“In an action or proceeding brought in any court by or against the Reclamation Board of the State of California, or any irrigation, reclamation, levee, swamp land or drainage district, or any public agency, or trustee, officer or employee thereof, affecting or relating to any real property, or an easement or right of way, levee, embankment, canal' or any work provided for or approved by the Reclamation Board of the State of California, a judge of the superior court of the county ... in which such real property, or any part thereof, or such easement or right of way, levee, embankment, canal or work, or any part thereof, is situated shall be disqualified to sit or act, and such action shall be heard and

[6]

tried by some other judge or justice, requested to sit therein by the chairman of the judicial council, unless the parties to the action shall sign and file in the action or proceeding a stipulation in writing, waiving the disqualification in this subdivision of this section provided, ...” The respondent judges are of the opinion that they are disqualified by this section to hear and determine eminent domain proceedings instituted by the petitioning district to condemn lands in Riverside County, on the theory that petitioner comes within the term “other public agency” as used in subdivision (6).