The opinion
SHAW, J., dissenting.
The proceeding is for prohibition. By the terms of the statute the writ cannot issue unless the court below is acting without jurisdiction. This is the controlling factor in the ease. A failure to state facts sufficient to constitute a cause of action, or, in other words, to state facts which show that the plaintiff has a right of action, must not be confused with a lack of jurisdiction. The first proposition has no bearing at all on the decision of the ease, while the latter is essential to the decision of the majority of the court. And yet the decision is based on the first proposition entirely, as will be shown.
The sole question is whether or not the superior court has jurisdiction to entertain the proceeding known in equity jurisprudence as a bill of discovery. It is, of course, conceded that this proceeding constituted one of the branches of equity jurisdiction at the time of the adoption of the constitution of this state in 1849. Section 6 of article VI of that constitution conferred upon the district courts “original jurisdiction in all cases in equity.” Under this clause this court decided that “the equity jurisdiction with which our district courts are invested under the constitution is that administered in the High Court of Chancery in England. ’ ’
(People
v.
Davidson,
30 Cal. 391 ;
Rosenberg
v.
Frank,
58 Cal. 400 .) The constitution of 1879, in the same language, conferred the same jurisdiction on the superior courts (art. VI, sec. 5), and, upon a familiar principle of construction, the provision is not to be construed as having been repealed and re-enacted, but as having been continued in force, with the superior courts substi
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tuted as the recipients, instead of the former district courts. The constitution, therefore, gives to the superior courts all the jurisdiction of courts of equity as it formerly existed. It necessarily follows that the superior courts have jurisdiction of bills of discovery.
The majority of the court seek to escape from this inevitable conclusion by resort to the provisions of section 3423 of the Civil Code, to the effect that no injunction shall be granted “to stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded.”
Of course, it must be admitted that, if this provision of statute law acts upon the jurisdiction of the court as given by the constitution, the law is unconstitutional. The force of this proposition is sought to be evaded by the statement that it does not act upon the jurisdiction of the court, but that it is a limitation upon the rights of persons to maintain an action. It was on this ground that the section was held valid in
Sprockets
v.
Hawaiian etc. Co.,
117 Cal. 377 . But it will be seen that, if the section is upheld on this ground, and it can be upheld on no other, we at once leave the question of jurisdiction, which is the only question in the case, and enter upon an inquiry whether or not the plaintiff in the injunction suit has stated facts sufficient to show that he, personally, has a right of action, which is an inquiry foreign to the case in hand. The majority opinion rests for its support on its conclusion that this section, by depriving a plaintiff of a right of action, ousts the court of its jurisdiction. In a proceeding for a writ of prohibition it can make no difference whatever whether the complaint in the proceeding sought to be prohibited states a cause of action or not. The court has jurisdiction of the subject-matter, as well upon a bad pleading as upon a good one. And even if the defect is of such character that an amendment to make it good is impossible, still the point is one to be raised on appeal and not in prohibition.
This court is beset with enough applications for the exercise of its original jurisdiction at the best, and it ought not to relax in the least the rigidity of the technical rules with which that jurisdiction is surrounded and limited.
On the score of authority the opinion of the majority has
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no substantial support. They are overwhelmingly to the effect that the statutes making parties competent witnesses, requiring interrogatories to be answered before the trial, and for the production of papers do not oust equity courts of their pre-existing jurisdiction to entertain suits of discovery.
(Post
v.
Toledo etc. Co.,
144 Mass. 341 ;
1
Russell
v.
Dickeschied,
24 W. Va. 61 ;
Union Pacific Ry. Co.,
v.
Mayor,
71 Md. 238 ;
Millsaps
v.
Pfeiffer,
44 Miss. 805 .;
Howell
v.
Ashmore,
9 N. J. Eq. 91
2
Shotwell
v.
Smith,
20 N. J. Eq. 81;
Cannon
v.
McNab,
48 Ala. 99 ;
Shackelford
v.
Bankhead,
72 Ala. 476 ;
Handley
v.
Heflin,
84 Ala. 600 ;
Wood
v.
Hudson,
96 Ala. 471 ;
Elliston
v.
Hughes,
1 Head, 227 ;
Grimes
v.
Hilliary,
38 Ill. App. 246 ;
Kendalville Refrigerator Co.
v.
Davis,
40 Ill. App. 616 ;
Ames
v.
New Jersey Franklinite Co.,
12 N. J. Eq. 68;
3
British Empire Co.
v.
Somes,
3 Kay & J. 433;
Colgate
v.
Compagnie etc.,
23 Fed. 82 ; Pomeroy’s Equity Jurisprudence, see. 193; 6 Ency. Pl. & Prac., p. 740.)
There are a few cases which, without much consideration, use language which, if not considered with reference to the manner in which the point arose, might be understood as denying this jurisdiction to courts of equity under modern conditions. But it will be found, almost without exception, that they are cases where the inquiry was not with respect to the jurisdiction of the court, but with regard to the existence of an ample remedy at law which made it unnecessary to resort to the aid of equity.
(Bond
v.
Worley,
26 Mo. 254 ;
Hall
v.
Joiner,
1 S. C. 190;
Rindskopf
v.
Platto,
29 Fed. 132 ;
Heath
v.
Erie Ry. Co.,
9 Blatch. 316;
Riopelle
v.
Doellner,
26 Mich. 102 ;
Preston
v.
Smith,
26 Fed. 884 ;
Reddington
v.
Lanahan,
59 Md. 440 ;
Paton
v.
Majors,
46 Fed. 210 ;
Babbott
v.
Tewksbury,
46 Fed. 86 ;
Drexel
v.
Berney,
14 Fed. 268 .) But in
Brown
v.
Swann,
10 Pet. 500 , and
Ex parte Boyd,
102 H. S. 657, it was conceded that the jurisdiction in equity still exists, though there is now seldom occasion to call for its exercise. If the jurisdiction exists in the superior court, there is no ground for the issuance of a writ of prohibition. The question of the necessity for the exercise of the jurisdiction, or the right to maintain a suit for discovery, as
*480
a personal right, can only arise on appeal, or in some other form of attack where those questions are involved.
Rehearing denied.
1
59 Am. Rep. 86 .
2
57 Am. Dec. 271 .
3
72 Am. Dec. 385 .