Cross v. Superior Court

COOPER, J.

This is an application for a writ of prohibition to be directed to the superior court of the city and county of San Francisco and to the presiding judge of department 10 thereof. The petition alleges: That James T. Cross died in January,-1905, being at the time of his death a resident of the city and county of San Francisco, and leaving a large estate, both real and personal, therein. That one Plynes was appointed administrator of the said estate, qualified, and letters of administration were duly issued to him, and that petitioner is the brother and sole heir at law of deceased. That under the collateral inheritance tax act

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of the state of California, enacted in 1893, and the amendments thereto, if said act is still in force, the petitioner would be required to pay a collateral inheritance tax to the state of California upon the estate coming to him from the estate of deceased at the rate of five per cént upon the market value of said estate. That by an act of the legislature enacted at the session of 1905, which took effect July 1, 1905, another and different collateral inheritance tax act was passed, which expressly repealed the inheritance tax act of 1893. That, notwithstanding such repeal, the said superior court is about to and threatens to appoint an appraiser and proceed to have the said estate appraised, and the market value fixed under the method prescribed in the act of 1893, for the purpose of enforcing the collection of the collateral inheritance tax as fixed by the act of 1893, in accordance with the procedure therein laid down. The respondent filed a demurrer to the petition upon the ground that it does not state facts sufficient to authorize the writ of prohibition prayed for, and now claims that petitioner has a plain, speedy and adequate remedy by appeal in the ordinary course of law. The evident object of the proceeding is to obtain the opinion of this court as to whether or not a collateral inheritance tax can be collected under the act of 1893, after its repeal; but the conclusion which we have reached makes it unnecessary to decide that question.

The writ of prohibition arrests the proceedings of any tribunal when such proceedings are without or in excess of the jurisdiction of such tribunal, and there is no plain, speedy, and adequate remedy in the ordinary course of law. (Code Civ. Proc., secs. 1102, 1103.) If there be a plain, speedy, and adequate remedy in the ordinary course of law, the writ will be denied. There are cases on the border line, in which 'it is a matter of some difficulty, and generally, in this state, a matter of discretion, as to whether or not there is a plain, speedy, and adequate remedy in the ordinary course of law. It is the general rule that, where there exists an opportunity for a review and correction of the wrong complained of in a higher court on appeal, prohibition will not lie. (Spelling on Injunctions and Other Extraordinary Remedies, sec. 1729; High on Extraordinary Legal Remedies, sec. 780;