Ex Parte Mogenson

BEATTY, C. J.

The petitioner was convicted upon- a charge of violating an ordinance of the town of Los Gatos prohibiting the sale of intoxicating liquors. He sued out a writ of

habeas corpus

from the district court of appeal for the purpose of testing the validity of the ordinance, the sufficiency of the complaint to state a case within the terms of the ordinance, and the sufficiency of the judgment to show a conviction of the offense, if any offense was charged. After a hearing upon the return of the writ, that court, in an opinion filed May 27/1907, overruled all the objections to the validity of the ordinance and the regularity of the proceedings under it,

[518]

and remanded the prisoner to the custody of the sheriff of Santa Clara County, by whom he was detained in execution of the judgment.

Subsequently a petition was presented to me based upon the same objections to the legality of the imprisonment that had been considered and overruled by the district court of appeal. Counsel, however, in presenting the petition to me, as chief justice of the supreme court, did not intend or expect that I should by myself review and overrule the decision of the district court of appeal. His desire and request was that I should issue the writ and make it returnable before the court in Bank, as I have the power to do under section 4 of article VI of the constitution, and section 1475 of the Penal Code. (See Pen. Code, sec. 1475, as amended March 18, 1907,—Stats., 1907, p. 560.)

For the future guidance of the profession in similar cases, I have deemed it important to state the reason why this course was not pursued. The authority of one justice of this court to make a writ of

habeas corpus

issued by himself returnable before the whole court was formerly exercised with great freedom—so much freedom, indeed, as to result in a serious detriment, to the more important business of the court. It was a favorite method with certain practitioners to present their petitions to some one justice, and often to several different justices in succession, asking for a writ returnable before the court, and if they could get the writ allowed in that way the whole court would be compelled on the day named in the writ to drop all other business for the purpose of hearing the return to a petition which would never have been granted if the court or a quorum of the justices had been consulted beforehand. The evil consequences of this practice were not alone the interruption to more important business of the court, but the unnecessary expense to counties involved in the production of prisoners at the bar of the court in response to writs issued upon petitions insufficient on their face and often utterly frivolous in the light of the facts developed at the hearing.