Cohen v. Superior Court

CONLEY, P. J.

This is an original petition filed in this court to require C. Seldon Morley, as Agricultural Commissioner of the County of Kern, to exhibit documents filed in his office and to require the Superior Court of Kern County to set aside an injunction heretofore granted by it in a case pending in the County of Kern entitled Atwood Aviation, Inc., a corporation; Garriott Crop Dusting Co., Inc., a corporation; Arvinair Crop Dusters, on behalf of themselves and all other members of the Kern County Agricultural Chemical Association, an unincorporated association v. C. Seldon Morley [incorrectly stated to be Seldon C. Morley], in his capacity as Agricultural Commissioner of the County of Kern, State of California, No. 103595; in that case, which, in form, is entirely separate from the present proceeding, the Superior Court of Kern County issued a temporary restraining order, still pending, forbidding Mr. Morley, as commissioner, from exhibiting the documents which are involved in the present application for a writ of mandate. We have come to the conclusion, after considering all of the factors in this proceeding, that we should presently refuse to pass upon the issues involved, without prejudice to the commencement of a proceeding of this kind in the trial court. The Kern County Superior Court at all times has had first call on the legal questions involved here under the basic judicial structure of California. There is also involved the injunction suit above referred to in which the petitioner here, Mr. Jerome Cohen, is not a party. The witnesses, who are acquainted with the factors in the litigation, are for the most part residents of Kern County, and the potential exhibits are readily available to the trial court and counsel there.

[270]

In 3 Witkin, California Procedure (1954) Extraordinary Writs, section 9, page 2472, it is said: “It has been repeatedly stated that the issuance of certiorari, prohibition or mandamus is not a matter of right, nor governed entirely hy fixed rules, but is, to a large extent, within the ‘sound’ or ‘wise’ discretion of the court. This theory is heavily relied upon as a basis for

denial

of a writ, and is invoked most commonly in

mandamus

cases. (Citing authorities.)” Later in the same section at page 2473, it is said: “Although the nature of the appellate court’s discretion to grant or withhold relief on an original application is the same as that of the superior court, i.e., it is a judicial discretion, there are two additional areas for its exercise: (1) The limiting rule of policy, requiring application first to a lower court, may be enforced or relaxed on a satisfactory showing, and this closely approaches an uncontrolled discretion. (See supra, §8.) (2) Where an original application is denied by a district court of appeal, the remedy of the aggrieved party is not a new application for a writ but a petition for hearing in the Supreme Court. The granting of such a petition is, of course, wholly discretionary, for it depends upon the existence of important questions of law or conflicts of decision, rather than upon the merits of the petitioner’s case. ’ ’