Stewart v. Superior Court

GLADYS STEWART, County Clerk of Tulare County, et al., Petitioners, v. THE SUPERIOR COURT OF TULARE COUNTY et al., Respondents.

COUNSEL

Clarence E. Todd for Petitioners.

R. E. Combs and Maddox & Abercrombie for Respondents.

OPINION

THE COURT.

Petitioners seek to have us review and annul, in this original proceeding for a writ of certiorari or other appropriate writ, an order of the Superior Court of Tulare County restraining Gladys Stewart, as County Clerk of Tulare County, from certifying certain referendum petitions against a legislative enactment known as "Senate Bill 877", being the so-called "Hot Cargo" statute passed by the last legislature. There are two sufficient reasons why we should not grant the writ.

[1] First: The action in which the injunction was issued is equitable in character, in which exclusive appellate jurisdiction lies in the Supreme Court. Application for a writ in such a case should have been made to the Supreme Court and not to a district court of appeal. (Collins v. Superior Court, [46 Cal. App. 2d 844] 147 Cal. 264 [81 P. 509]; Estate of Turner, 39 Cal. App. 56 [177 P. 854]; Gunder v. Superior Court, 100 Cal. App. 334 [279 P. 822]; Bern Oil Co., Ltd., v. Superior Court, 5 Cal. App. 2d 21 [41 PaCal.2d 939].)

[2] Second: An appeal lies from the injunction sought to be reviewed here. (Sec. 963, Code Civ. Proc.) Petitioner's proper remedy is by appeal, and not by petition for a writ. (Casner v. Daily News Co., Ltd., 12 Cal. 2d 402 [84 PaCal.2d 1032]; Young v. Superior Court, 16 Cal. 2d 211 [105 PaCal.2d 363]; Casner v. Superior Court, 23 Cal. App. 2d 730 [74 PaCal.2d 298].)

The petition for the writ is denied.