Petitioners were found guilty by a jury in the Police Court of Stockton, of a violation of section 87 of the Penal Code. Judgments were duly entered as to each, that they should be confined in the county jail for one hundred eighty days on Count One, and one hundred eighty days on Count Two of the complaint, pay a fine of $250 on the Third Count, and $250 on the Fourth Count. Upon appeal to the superior court by petitioners, the conviction was affirmed, but the judgment was modified by striking out the sentence imposed under all counts except Count One. All of the defendants in said actions now contend that the said conviction can and should be nullified by means of this proceeding in habeas corpus.

On the 6th day of January, 1940, Governor Olson called a special session of the legislature to consider an act upon relief matters and to make appropriations for the relief of hardship in the State of California. During this session, pursuant to Assembly House Resolutions No. 9 and No. 29 (attached to the record as Exhibits No. 1 and No. 2), the Assembly appointed a committee of its members for the purpose of investigating, surveying and studying in detail the entire problem of relief of hardship and destitution. This committee was authorized to hold public hearings and subpoena witnesses, and in addition, under House Resolution No. 29, were authorized, in the words of the resolution, “to have the power to investigate and report upon the extent to which the activities of groups, and organizations, which include among their members persons who are either employees of the State Relief Administration, or who are receiving relief, affect the cost of the administration of unemployment relief, and to recommend such legislation in connection therewith as the committee may deem necessary or advisable.”

Pursuant to these resolutions, the committee met in the city of Stockton and examined numerous witnesses. Nineteen of the witnesses who appeared- before this committee, upon being first duly sworn to testify, refused to answer questions propounded to them relative to their communistic activities or affiliations. Subsequently, complaints were filed against these nineteen witnesses for violations of section 87 of the Penal Code, which provides:

The contention of petitioners is that they were denied due process of law in violation of the Fourteenth Amendment of the Constitution of the United States, and that habeas corpus may be resorted to as a remedy under such circumstances. They urge that all or any of the following questions may be raised upon this proceeding:

The complaints do not state a public offense, and are deficient in other particulars;

The court refused to grant challenges for cause based upon bias and prejudice;

The court refused to grant a motion for change of venue;

The court refused to issue a subpoena duces tecum for witnesses residing outside the county.

As to the first question mentioned, it is clearly the law that it can properly be raised on this proceeding. (Ex parte Williams, 121 Cal. 328 [ 53 Pac. 706 ]; 13 Cal. Jur., p. 232, sec. 14.)

The other questions all relate and arise out of the ruling of the court adverse to petitioners. In other words, they involve errors of law committed at the trial. None of * them is based upon facts and circumstances not arising out of, or presented at the trial. In respect to such questions, the rule is found in 13 Cal. Jur., page 236, section 17, where it is said:

In the case of In re Martin, 132 Cal. App. 64 [ 22 Pac. (2d) 269 ], forty specific grounds were advanced for the issuance of a writ of habeas corpus. Among them were accusations of fraud, conspiracy, corruption and impure motives on the part of the district attorney’s office, the witnesses for the prosecution, a former attorney for the defense and certain insurance companies; others in their nature were an attack upon the integrity of the trial judge, the jury and the court reporters; a number involved alleged errors of law which it is claimed were committed during the trial of the action; and several pertained to the weight of testimony and the credibility of certain witnesses, alleged misconduct of the district attorney, and the legal sufficiency of the evidence to support the verdict of the jury. In denying the application, the court carefully reviewed the decisions of this state relating to the scope of the inquiry upon habeas corpus, in the following language:

The identical language appears in In re Cutler, 1 Cal. App. (2d) 273 [ 36 Pac. (2d) 441 ] (hearing in Supreme Court denied). It must be remembered that petitioners availed themselves of the right of appeal, and that all of such questions, according to petitioners, were presented for determination a second time to the superior court.

To meet this situation, so far as our own jurisdiction is concerned, petitioners rely upon the case of Mooney v. Holohan, 294 U. S. 103 [55 Sup. Ct. 340, 79 L. Ed. 791 , 98 A. L. R. 406]. There, the defendant had been convicted of murder in the first degree in this state, and his conviction was affirmed upon appeal to the Supreme Court (People v. Mooney, 177 Cal. 642 [ 171 Pac. 690 ]). Thereafter defendant asked leave of the Supreme Court of the United States to file a petition for an original writ of habeas corpus. He charged that he was held in confinement without due process in violation of the Fourteenth Amendment of the federal Constitution, by reason of the fact that he had been convicted upon perjured testimony which was knowingly produced by the prosecuting officials. The court held, in effect, that habeas corpus was the proper remedial course for defendant to pursue, but denied the writ upon the ground that Mooney had not exhausted his judicial remedy under the laws of California. Upon subsequent application to the Supreme Court of this state, a writ of habeas corpus was denied.

We are unable to agree with petitioners when they urge that mere errors of law, arising out of rulings of the court at the trial, come within the due process clause, nor do wc believe that the Mooney case, in so far as such matters are concerned, alters the rule which prevails in this state, and to which we have alluded. In the Mooney case the facts which were used as a basis for an application for the writ did not arise out of anything which took place during the course of the proceedings, and upon which the trial court was given the opportunity to rule. Such facts arose outside the record, and the attack involved the good faith of those prosecuting the case. The United States Supreme Court held that, to be entitled to the writ, and to come within the due process clause, it was incumbent upon the defendant to prove not only that perjured testimony was used, but that the prosecuting officials knowingly used it. The Supreme Court of this state, in People v. Mooney, 178 Cal. 525 [ 174 Pac. 325 ], where a certificate of probable cause was sought to stay the execution of the defendant upon the ground of misfeasance and fraud upon the part of the district attorney, it was held that such an attack should have been made upon motion for new trial or appeal. It thus appeared that there was no available remedy under the laws of this state which the defendant could pursue. This was the situation when the application for habeas corpus was made to the United States Supreme Court. The contention of the defendant had never been adjudicated by any court of this state, by reason of the fact that there was no existing procedure whereby that could be accomplished. Herein lies the distinction between that case and the one under consideration. Here, the questions raised. were actually and admittedly presented, under appropriate procedural statutes and the decisions of our courts, and were actually passed upon by both the trial court and the superior court on appeal. If the theory of petitioners here were carried out to its logical conclusion, every adverse ruling in a criminal trial could be made the basis for a charge of a violation of the due process' clause, and all of such cases would then be within the jurisdiction of the Supreme Court, of the United States. We do not believe that court ever intended to lay down such a rule and expand the scope of the due process clause to such an unlimited extent.

Petitioners, in the same manner, seek to extend the definition of “jurisdiction” so that where adverse rulings of the character mentioned above are made, it is an act of the court in excess of its jurisdiction, if such ruling is erroneous. The recent ease of Abelleira v. District Court of Appeal, 17 Cal. (2d) 280 [ 109 Pac. (2d) 942 ], is relied upon by petitioners. That case merely holds that where a court purports to act under the authority of a particular statute but acts contrary thereto, it acts in excess of its jurisdiction and certiorari will lie. The District Court of Appeal, when the writ was issued, had under submission an application for a writ of mandamus, arising out of the question of the right of the California Employment Commission to make certain payments to individuals who claimed to be entitled thereto. Pending the final determination of the matter, and for the sole purpose of preserving the status quo, this court restrained the commission from paying out such funds. Before this court had the opportunity to dispose of the attack upon its own jurisdiction, the Supreme Court decided it for us, upon the ground that we had no jurisdiction to decide whether or not we ourselves had jurisdiction. In undertaking to define the word “jurisdiction”, after rejecting all “fundamental” definitions, the Supreme Court concludes with the pronouncement that, “As a practical matter, accuracy in definition is neither common nor necessary.” In spite of the foregoing, we cannot see how that case can be said to lay down a rule which says that the act of the trial court, in ruling upon legal questions such as we have here, is a jurisdictional matter. If the trial, court was mistaken in its rulings, it was, at the most, error committed in the exercise of its jurisdiction. The fundamental rule governing the situation (for we still cling to fundamentals), as found in 15 C. J., pages 729, 730, section 14, is stated as follows:

Coming to the question of the alleged failure of the complaint to state a public offense, we believe that it is not vulnerable to the attack made upon it by petitioners, and that it complies substantially with the provisions of section 1426 of the Penal Code, which reads as follows:

Numerous objections to the complaint are made. First, it is contended that section 303 of the Political Code, dealing with contempt before legislative committees, is applicable. The pertinent portion of that section reads as follows:

The section has no application here, as the charge there is not based upon a violation of the Penal Code, but to proceedings initiated under that section.

It is next contended that the questions were not material to the inquiry, and that the right of privacy of petitioners was violated. We believe it necessary to set forth in full one of the complaints.

The complaints against the other defendants include other questions, but all have, in common, the question relating to membership in the Communist Party. As pointed out above, the resolution of the Assembly which created the Investigating Committee provided that: “It shall have the power to investigate and report upon the extent to which the activities of groups and organizations, which include among their members persons who are either employees of the State Relief Administration, or who are receiving relief, affect the cost of the administration of unemployment relief, and to recommend such legislation in connection therewith as the committee may deem necessary or advisable.” All defendants were employees of the State Relief Administration. The Communist Party certainly comes under the designation of a “group” or “organization”, and consequently, the development of the fact whether or not such employees were connected with that group or organization was pertinent, material and proper. The cases cited by petitioners, and dealing with the right of privacy, did not involve the right of the State to conduct an inquiry among its own employees to determine their qualifications and fitness to continue in its service, and they have, no application here.

Petitioners rely upon In re Battelle, 207 Cal. 227 [ 277 Pac. 725 , 65 A. L. R. 1497]. There, a committee was appointed by the legislature to investigate collusive bidding among manufacturers of cement. Upon the refusal of a witness to answer, he was cited for contempt by the legislature, and ordered into custody until such time as he might answer. The Supreme Court, upon habeas corpus, discharged the witness from custody upon the ground that the commitment did not recite the acts constituting the contempt. Here, it is urged, the complaint should have recited the facts that the legislative committee was empowered to ask the questions which are made the basis of the complaint. The answer to that contention is that we are not dealing here with a contempt proceeding, but a violation of a section of the Penal Code. The same test should be applied here as obtains in the case of any complaint, indictment or information under the Penal Code. This test is found in section 1426 of said code, which is quoted above. This action is entirety independent and separate from the proceedings authorized by section 303 of the Political Code, referred to above.

Summing up the question last discussed, the Supreme Court of the United States, in a case very similar—McGrain v. Daugherty ( 273 U. S. 135 [47 Sup. Ct. 319, 71 L. Ed. 580 -594, 595])—pointed out the presumptions in which a court will indulge in a case of this character. Daugherty was the brother of the Attorney-General of the United States. The United States Senate, by resolution, authorized a committee of its members to investigate the Department of Justice and its failure to prosecute certain individuals. A subpoena was issued by the committee for Daugherty and served upon him, but he failed to appear. He was found guilty of contempt, and ordered into custody. In holding that he was not entitled to his liberty under hateas corpus, the court said:

One of the questions raised at the trial is strongly urged as coming within the due process rule. We refer to the act of the court in refusing to endorse a subpoena for witnesses residing outside the county, under the provisions of section 1330 of the Penal Code. Conceding that the court erred in said ruling, we are of the opinion that no prejudice resulted. The application of counsel for petitioners for the issuance of such subpoena shows that the six witnesses named therein were shorthand reporters. It appears that they took testimony produced before the committee in various portions of California. In the affidavit of said counsel he sets forth some fifteen matters to which said witnesses would testify. They are all predicated, as petitioners state, upon the fact “that the real and primary purpose of the committee and each of its members, was not to make an investigation with a view to determining what further legislation was necessary, and recommend the adoption thereof as provided in House Resolution No. 9 and No. 29, as amended, but on the contrary was one or more of the following: ’ ’ Then follow the facts which they expect to prove by said witnesses. These facts are all of the same tenor and character. We quote several which are typical:

We do not believe that such evidence would constitute a defense to the action, nor would it tend or assist toward that end. The purpose of the committee and its powers and legitimate objectives must be found in the legislative resolution to which we have alluded above, and such matters cannot be impeached by this proposed method. The evidence sought to be elicited from these witnesses was therefor immaterial to the issues, and had no bearing upon the guilt or innocence of petitioners. We conclude that, assuming the question could be raised in this proceeding, and that error was committed, no prejudice resulted from the ruling. We might add, however, that this court has held, in the matter of the application of Harley Noyes for a writ of habeas corpus, 39 Cal. App. 746 [ 179 Pac. 696 ], that “The refusal to issue a subpoena for witnesses by a committing magistrate, or even the refusal to cause one to be issued for a like purpose by the superior court is not a ground for the release of a prisoner on habeas corpus. Discretion in that regard may be abused and error thereby committed, and thus a person examined or on trial on a criminal charge deprived of a lawful hearing or trial, but such abuse of discretion either by the magistrate or the superior court is mere error, which does not go to the question of jurisdiction to make the order of commitment or to impose judgment of sentence, and, therefore, is not reviewable in a proceeding under a jurisdictional writ. (Matter of Jacobs, 38 Cal. App. 474 ( 176 Pac. 689 [698].) ”

In conclusion, we might add that we have examined the entire record and are satisfied that petitioners were justly and fairly tried and convicted. It is not only the right, but the duty of the state, particularly at this time, to ascertain if there are any in its employ who belong to any group or organization which advocates and practices its overthrow and destruction by subversive activities. It is a matter of common knowledge that the Communist Party comes within that category. Self-preservation is said to be the first law of nature, but that maxim is even more applicable to the state, if its survival is to be ensured.

* The writ is denied and the proceedings dismissed, and the petitioners are remanded to the custody of the sheriff.