Kilburn v. Law

Temple, J. This is an application for a writ of prohibition against Hon. J. K. Law, judge of the superior court of Merced county, commanding him to desist from any further proceedings against the petitioners as bank commissioners in the matter of the accusation of W. N. Sherman against them.

October 8, 1895, said Sherman filed in the Superior court of Merced county a verified accusation charging that the bank commissioners had willfully neglected to perform the duties of their office in that, having the means so to do, they did not, up to. September 1, 1895, ascertain that the Merced bank was insolvent and unable to fulfill its obligations, and that it was unsafe to continue business. And that, having the means to ascertain these facts, they did not report the same to the attorney general of the state of California, as required by law; and having ascertained on the twelfth day of September, 1895, that said bank was insolvent, and in an unsafe condition, did not report, and have not since reported, such facts to the attorney general.

The accusation also charged that the Merced bank was insolvent and unsafe, and that on the sixteenth day of October, 1894, it suspended payment and closed its [239]doors, and that said suspension has ever since continued, ■and the bank has paid no part of the sums due its depositors, and that the neglect of duty on the part of the bank commissioners has entailed great loss on the part of depositors in said bank.

The petitioners state that neither of them was a citizen of the county of Merced, wherein the accusation was filed, but were then temporarily at Merced when this proceeding was commenced, engaged in the discharge of their official duty.

Upon the presentation of said accusation to the superior court of Merced county, it is averred, the court issued a citation, which wras served upon the petitioners, requiring them to appear and answer the accusation, and the petitioners charge that notwithstanding said accusation was filed without authority of law, and the proceeding is illegal, respondent will, unless restrained, entertain the same, and will enter judgment removing petitioners from office. The answer admits all the material allegations except that respondent denies that he will proceed to remove petitioners from office, but avers that he will proceed to hear the accusation and determine the same as required by section 772 of the Penal Code.