Harrison, J., dissenting. The attorney general commenced an action in the superior court in the name of the people of the state, on the relation of Henry C. Gesford, against M. R Higgins, alleging that he was unlawfully holding and exercising the office of insurance commissioner. In addition to the statement of the cause of action the complaint also set forth the facts showing the claim of Gesford to the office, and prayed judgment that the defendant be excluded from the office and Gesford be put in possession thereof. The cause of action was set forth in the complaint in two counts, and the defendant demurred to each of these counts, and also demurred to the complaint as a whole, upon the ground that several causes of action were improperly [474]united. The court sustained the demurrer to the first count without leave to amend, and also sustained the demurrer to the second count, but gave the plaintiff leave to amend the same. Under the leave thus given the plaintiff filed an amendment to this count, and thereupon the attorney for the defendant appeared in court and tendered the following oral plea: “The defendant pleads that he is not guilty of the offense charged,” upon which the following entry was made in the minutes of the court: “ In this action the defendant’s attorney, Mr. Carpenter, appeared for his client, M. E. Higgins, and pleaded that said Higgins is not guilty of the offense charged.” Thereafter, at the request of the plaintiff, the clerk entered the default of the defendant for his failure to appear and answer the complaint as amended, and the plaintiff applied to the court for the relief demanded in the complaint, but the judge thereof denied the said application and refused to give any relief whatever, or to recognize the said default as being properly entered, upon the ground that the action herein was a criminal cause, and that a plea of not guilty was proper to the complaint as amended herein. The present application is made by the plaintiff for a writ of mandate commanding the respondent to entertain the application of these petitioners for the relief demanded in the complaint, and to enter a judgment in their favor as therein demanded. The respondent in his answer avers that he has already entertained the application of the plaintiff, and has denied the same.
The order sustaining the demurrer to the first count of the complaint, without leave to amend, was equivalent to a judgment that the plaintiff was not entitled to any relief based upon that count; and the subsequent amendment to the second count had the effect to make that count as thus amended the only complaint in the action, and the sole basis of the relief sought by the plaintiff.
. The action was brought under section 803 of the Code of Civil Procedure, which provides:
[475]“An action may be brought by the attorney general in the name of the people of this state, upon his own information, or upon the complaint of a private party, against any person who usurps, intrudes, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state.”
Such an action is a civil action, whether it be regarded as authorized by the above section of the code, or as a proceeding instituted under the provision in the constitution giving to the superior court jurisdiction to issue writs of quo warranto. In People v. Perry, 79 Cal. 105, the court said of a similar action brought under the above section: “This is a proceeding substantially equivalent to that by quo warranto. It is the same as quo warranto, with something added.” (See, also, People v. Bingham, 82 Cal. 238; People v. Pease, 30 Barb. 588; People v. Thacher, 55 N. Y. 525; 14 Am. Rep. 312.) Mr. High, in his treatise on Extraordinary Legal Remedies, section 710, says: “The tendency of the courts in modern times being to regard an information in the nature of a quo warranto in the light of a civil remedy invoked for the determination of civil rights, although still retaining its criminal form and some of the incidents of criminal proceedings, the better doctrine now is that pleadings should conform as far as possible to the general principles and rules of pleading which govern in ordinary, civil actions.” As a civil action authorized by the Code of Civil Procedure, it is subject to the rules of pleading given in that code, section 421 of which declares: “The forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, áre those prescribed in this code”; and, by section 422, the only pleadings allowed on the part of the defendant are the demurrer to the complaint and the answer. The provision in section 446, that every pleading must be subscribed by the plaintiff or his attorney, and of section 465, that all pleadings subsequent to the complaint must be filed with the clerk, and copies thereof served upon the adverse party or his [476]attorney,” render it necessary that all pleadings shall be in writing or printed, and preclude a party from making any oral pleading whatever.
There is no ground for considering that the present action is instituted under the provisions of section 772 of the Penal Code, or that it is to be regarded as criminal in its nature. The superior court can act under that section only when it has received an accusation in writing, alleging that the officer has charged and collected illegal fees, or has refused or neglected to perform the official duties pertaining to his office. The only grounds alleged in the complaint herein are the failure to file a sufficient bond, and the subsequent acceptance and use of a free pass granted to him by the Southern Pacific Company, a railroad corporation operated within this state, and of neither of these acts can there be predicated any turpitude or neglect of official duty. The people have prescribed certain conditions under which its officers may exercise the functions of the offices to which they have been elected or appointed, and have declared that in certain cases they shall no longer hold such offices, one of which is the acceptance of a free pass from a railroad or other transportation company. (Const., art. XII, sec. 19.) The acceptance of such a pass has no more of the elements of a criminal nature than would the acceptance by an officer of a lucrative office under the United States, or the absence from the state by a judicial officer for more than sixty days, or the voluntary removal from the county for which the officer was elected, either of which acts would be a ground for declaring that he could no longer exercise the office. (See People v. Leonard, 73 Cal. 230.)
Under a writ of quo warranto, or an information in the nature of a quo warranto, the defendant was required either to disclaim or justify. The state was not required to make any showing, but the onus was upon the defendant to establish his right to a judgment in his favor. He was required either to deny that he was in the exercise of the office, or to allege facts sufficient [477]to show that he had the right to exercise the office. (People v. Crawford, 28 Mich. 88; High on. Extraordinary Legal Remedies, sec. 716.) A plea of not guilty was insufficient, and not to be regarded as a defense. (Attorney General v. Foote, 11 Wis. 14; Commonwealth v. M’ Williams, 11 Pa. St. 61.) Even in Illinois, where the proceedings are required to be in many respects in analogy to criminal proceedings, it is held that “ the defendant must either disclaim or justify. If he disclaims, the people are at once entitled to judgment. If he justifies, he must set out his title specially. It is not enough to allege generally that he was duly elected or appointed to the office, but he must state particularly how he was elected or appointed. He must show on the face of the plea that he has a valid title to the office. The people are not bound to show anything. The information calls upon the defendant to show by what warrant he exercises the functions of the office, and he must exhibit good authority for so doing, or the people will be entitled to judgment of ouster.” (Clark v. People, 15 Ill. 213.) And, although the complaint under the procedure authorized in this state need not have alleged the facts constituting the usurpation or illegal exercise of the office by the defendant, but would have been sufficient by merely alleging that he is unlawfully exercising the office (Palmer v. Woodbury, 14 Cal. 43), leaving his right to such exercise to be pleaded in his defense, yet these allegations in the complaint herein, being material and relevant to the issue, and not having been denied, the facts thus alleged must be held to •be admitted by him. (People v. Knox, 38 Hun, 236.) If the defendant is in default in answering or pleading to the information, he is regarded as confessing all its allegations, and the court must thereupon proceed to judgment of ouster forthwith. (High on Extraordinary Legal Remedies, sec. 739.) As, therefore, the defendant herein was in default by reason of his failure to make any answer to the allegations in the complaint, the plaintiff was entitled upon such default to a judg[478]ment, and the court should have entertained its application therefor, and rendered judgment in its behalf.
It is unnecessary to determine whether the relator has any right to the office held by the defendant. If the defendant is rightfully in the exercise of the office, the relator can have no right thereto; and, if the defendant has no right to the office, it is immaterial to him whether the office is vacant, or to be held by the relator. (People v. Abbott, 16 Cal. 358.) The attorney general is authorized to bring the action upon the complaint of a private party, and it is not necessary-that it appear from his complaint, or be shown to the court, that such relator is entitled to the office (People v. Bingham, 82 Cal. 238); and, although the court may determine the right of the relator to the office (Code Civ. Proc., sec. 616), it is not required to do so. (People v. Phillips, 1 Denio, 388; High on Extraordinary Legal Remedies, sec. 757.) Nor will a defective averment of the relator’s right defeat the right of a state to a judgment of ouster against the defendant. (State v. Pomeroy, 24 Wis. 63.)
The refusal of the court to grant the application of the plaintiff “ upon the ground that the action herein was a criminal cause, and that a plea of not guilty was proper to the complaint as amended herein,” was not a judgment in the action or the exercise of any judicial discretion, but was a refusal to recognize the existence of the default, and to proceed in the case in the only mode then remaining for its action. The default of the defendant in failing to answer the complaint was an admission by him of the truth of the facts alleged in the complaint, and should have been treated with the' same effect as if these facts had been found by the court upon competent evidence. The plaintiff thereby acquired the right to a judgment that the defendant was unlawfully exercising the office, and that he be excluded therefrom; and the refusal of the court to recognize this right, and to give this judgment to the plaintiff, was a refusal to perform an act which, from the nature of its functions, it was required to perform. The court [479]had ceased to have any opportunity for the exercise of judicial discretion in the ease, but' the entry of this judgment had become an absolute duty on its part, which, in case of its refusal, it may be compelled to perform. Where a verdict or finding of facts authorizes a particular judgment, as an inevitable conclusion of law therefrom, and permits no other judgment, there is no place for the exercise of judicial discretion, and the court may be compelled by mandamus to cause such judgment to be entered. (Russell v. Elliott, 2 Cal. 245; People v. Sexton, 24 Cal. 78; Wood v. Strother, 76 Cal. 545; 9 Am. St. Rep. 249; Johnston v. Superior Court, 105 Cal. 666; Keller v. Hewitt, 109 Cal. 146; Hensley v. Superior Court, 111 Cal. 541; Lloyd v. Brinck, 35 Tex. 1; Cortleyou v. Ten Eyck, 22 N. J. L. 45; State v. Whittet, 61 Wis. 351; Life & Fire Ins. Co. v. Wilson, 8 Pet. 291; High on Extraordinary Legal Remedies, sec. 235; 2 Spelling’s Extraordinary Relief, sec. 1407; Merrill on Mandamus, sec. 189.)
Whether, in addition to such judgment, a fine shall be imposed upon the defendant, is, by the express terms of section 809 of the Code of Civil Procedure, left to the discretion of the superior court; but the right to exercise its discretion in this particular does not limit or qualify its duty to enter the judgment of ouster; and although it cannot be controlled in the exercise of this discretion, it may be compelled to' proceed to its exercise. The discretion given to the court is not to determine whether it will act, but is limited to the mode in which it will act, and, in such cases, mandamus will lie to compel a court to act and exercise the discretion given to it. (Jacobs v. Board of Supervisors, 100 Cal. 121; 2 Spelling’s Extraordinary Relief, sec. 1394; High on Extraordinary Legal Remedies, sec. 24.)
In my opinion the application for the writ should be granted.
Temple, J., and Henshaw, J., concurred in the dissenting opinion.