Kerr

This is an original petition here for a writ of mandamus to compel the superior court of the county of Stanislaus to take certain action prayed for in the petition. An alternative writ issued, and afterward a demurrer to the petition was interposed and the case was submitted on the demurrer.

The petition sets forth that on March 10, 1900, petitioner presented to said superior court, respondent herein, a written verified accusation in which it was alleged that one Baker, a director of the Modesto Irrigation District, had refused and neglected to perform his official duty as such director, and was so refusing and neglecting it; that “at said time the said plaintiff above named, by his attorneys, demanded of the said court that said court cite the said defendant, C. C. Baker, to appear before the said court, at a time not more than ten nor less than five days from the time said accusation was presented, to answer said accusation; and that said court refused to issue said citation,” or to take any further action upon the accusation. The prayer of the petition is that a writ issue requiring respondent “to issue said citation” and to proceed with the hearing of the same. The accusation…

I dissent. The conclusion that a court exercises its jurisdiction by refusing to act at all depends upon rather refined reasoning. If sound, I do not see how this court can ever compel judicial action. If the question be a judicial puzzle, it should be resolved in favor of the jurisdiction of this court. The contrary holding would deprive parties of a remedy which, in my judgment, is plainly guaranteed by law.

And I think the remedy was provided for these very cases, in which the inferior court concludes that a case has not been made by a complaint which calls for or justifies the exercise of its jurisdiction. It is not to be supposed that the judge acts perversely and refuses to perform a duty which is plain. The usual case in which a judge refuses to act must be when he concludes that a case has not been made calling for such action. It matters not why the inferior tribunal refuses to act. If its duty to act is manifest, action should be compelled. According to the principal opinion, the aggrieved party has no remedy. If so, that solution of the question should be preferred which will afford a remedy. Such was the ruling of this court on this precise question in Temple v.…