Kuhlman v. Superior Court of San Francisco

GAROUTTE, J. This proceeding is inaugurated by a writ of review to annul the action of the superior court of the city and county of San Francisco, W. B. Daingerfield, judge, in a proceeding pending therein. It is based upon the following facts: Petitioner, Kuhlman, was regularly subpoenaed as a witness to give testimony in a case of inquest pending before the coroner of the city and county aforesaid. He appeared and refused to testify, whereupon the coroner adjudged him guilty of contempt, and ordered that he be imprisoned in the county jail of the city and county of San Francisco until he complied with the order of the court requiring him to so testify. The coroner thereupon ordered the sheriff of said city and county to arrest Kuhlman and bring him before the nearest judge of the police court or judge of the superior court of the city and county aforesaid “to be punished according to law, and to have said judgment and sentence of imprisonment enforced.” Kuhlman was arrested and brought before the superior court, Daingerfield, judge, and upon hearing had'in that court the following order was made:

“It appearing to me from said order and warrant of said coroner that the said Charles G. Kuhlman has the ability, and that it is within his power to be sworn as a witness at the said inquest then and there and now pending before said coroner as aforesaid, and after the hearing of said matter, being now fully advised in the premises, it is hereby ordered, adjudged and decreed in open court that he, the said Charles G. Kuhlman, for his said contempt of the authority of said William J. Hawkins, coroner of the city and county of S'an Francisco, state of California, committed in the immediate presence of said coroner, in refusing to be sworn as a witness at the inquest then and now pending before said William J. Hawkins, coroner of the city and county of Sati [638]Francisco, to determine the canse of death of .... be punished by. imprisonment in the county jail of the city and county of San Francisco, of the state of California, until he complies with the order of said William J. Hawkins, coroner of the city and county of San Francisco.”

It is the aforesaid order that is sought to be reviewed by this proceeding.

It is now contended upon the part of the respondent, in behalf of the coroner, that the action of the judge of the superior court was not judicial, but ministerial, and that for such reason review is not the proper remedy to right the wrong, as there can be no such thing as an excess of jurisdiction in such a case. We pass this contention of respondent for the moment without decision. Whatever action the judge of the .superior court, or the superior court itself, took in the matter, its authority to act rests alone in sections 17 and 18 of the act of the legislature found in the Statutes of 1872, page 406; and, if that act is not in force and effect, the action here taken as outlined by the foregoing order, whether it be judicial or ministerial, must fall. Assuming then the order to be the result of judicial action, that action only has support under the aforesaid sections, and, if that support be taken away, the order of necessity must be null as going outride of the law.