Lord v. Ingels

BISHOP, J. pro tem.

Plaintiff’s appeal from the order dismissing his action because it had not been brought to trial within five years after its birth, is mainly based upon the proposition that there is a fund

in custodia legis

whose disposition was made dependent upon the determination of a constitutional question, and until the question is decided and the fund disbursed the court cannot rid itself of the action. We find no circumstance in this case exempting it from the mandatory provisions of section 583, Code of Civil Procedure, which direct the dismissal of an action not brought to trial within five years after it is “filed.”

Plaintiff, engaged in the year 1937 in the caravaning of automobiles into this state from states which are eastern to us, sought by this action to enjoin the defendants, who were officers of the State Motor Vehicle Department, from enforcing those provisions of a new statute (Stats. 1937, p. 2253; Deering’s Gen. Laws, 1937, Act 5136) which imposed fees totaling $15 upon each car driven upon the state highways over the route followed by plaintiff in his operations. The temporary restraining order which was issued upon the filing of the complaint was supplanted, in due course, by a preliminary injunction, granted upon the giving of a bond in the sum of $2,000, which ordered the defendants not to enforce the statute. The number of cars caravaned was so great that within a very short time the protection given the state by the $2,000 bond was gone, and a new arrangement was entered into. There first was a stipulation in which it was recited that, measured by the statute which the plaintiff was defying, the fees and penalties owed by the plaintiff already totalled $5,152.50, of which amount the sum of $3,152 had been paid to the Motor Vehicle Department. It was further stipulated, and then ordered, that the preliminary injunction be dissolved and the $2,000 bond released from all liability. However, the defendants were again forbidden to enforce

[561]

against the plaintiff any of the provisions of the statute. He, in turn, was directed, to pay to the Motor Vehicle Department $15 for each car which he caravaned on the state highways, within the purview of the statute. The order then continued in these words: “all sums which are so paid and the sum of $3,152.50 heretofore paid to said Motor Vehicle Department of the State of California as recited and receipted for in said Stipulation of December 17, 1937, shall be retained by said Department of Motor Vehicles in a special fund pending the final determination in this action on appeal or otherwise of the constitutionality of the aforesaid Statute, at which time in the event that the said Statute shall be determined to be unconstitutional the sums so paid shall be returned upon application to the plaintiff herein by the defendants, or their successors in office, and in the event that the said Statute shall be determined to be constitutional the said sums so paid shall be retained by the Department of Motor Vehicles and shall be applied according to the provisions of said Chapter 788 of the California Statutes of 1937.