The opinion
*17 CARTER, J.,
Dissenting. — I dissent.
The petitioner first sought a writ of mandate in this ease in the District Court of Appeal, Third Appellate District. Respondents demurred and answered, but there was no denial of petitioner’s allegation that he had no speedy or adequate remedy at law. The District Court of Appeal prepared a comprehensive decision on the merits of the controversy. No suggestion was made in that decision or by any of the parties to the proceeding that mandamus was not the appropriate proceeding to determine the issues. The decision being against petitioner he petitioned the District Court of Appeal for a rehearing and filed therein an amended petition for a writ of mandate in which he alleged that prior to the filing of the original petition for a writ of mandate he had commenced an action at law in the superior court to recover the principal and interest on the bonds, the payment of which was sought to be compelled by the mandamus proceeding, and that that action tolled the statute of limitations. The rehearing and amended petition were denied. A hearing by this court was granted and the cause thereby transferred to this court for hearing and decision.
The case has been comprehensively and ably briefed on the merits. Several amici curiae have filed briefs in the case.
One of the main issues in the controversy is whether or not reclamation district bonds bear interest after maturity, an issue which is of considerable public importance and may well involve many bondholders as well as numerous public corporations and agencies of the state. It may well be that an uncertainty in the law in that respect will result in such agencies being burdened with additional obligations, that is, the interest accruing pending a determination of the issue, if the ultimate conclusion is that interest is payable after maturity. The time attendant upon a trial of the case in the superior court followed by an appeal, would bring about such a result.
Under the circumstances above outlined, I believe that it is an improper and unjustifiable exercise by this court of its discretion to refuse to decide the merits of this case merely because petitioner has a remedy at law in the lower court. If the writ is to be denied on that ground it should have been done in the first instance and not after counsel have expended *18 valuable effort and time, as well as money presenting the case, and a decision thereon has been rendered on the merits by the District Court of Appeal, and a hearing granted by this court. While it may be true as a general rule that this court in its discretion may refuse to issue the writ for the reasons advanced in the majority opinion, I believe that under the circumstances here presented, technicalities and form should give way to considerations of public importance and fair treatment of counsel and the litigants here involved. No useful purpose can be served by compelling the parties to litigate the cause anew in the superior court. An appeal would in all probability be taken from any judgment entered therein. The whole subject would have to be again briefed and presented to an appellate court and a decision prepared by the latter. To require that unnecessary delay and repetition is not consonant with the function of courts or with the worthy policy of speeding up the judicial machinery to the end that justice shall be a reality rather than a myth.
Petitioner’s application for a rehearing was denied December 11, 1941. Shenk, J., and Carter J., voted for a rehearing.