CHARLES PIERCE et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents, 1 Cal. 2d 759

THE COURT. This is a proceeding in prohibition to restrain the respondent superior court from making any further order or orders in an action pending before it. The action referred to is numbered 379410 in said court and is entitled: “The People of the State of California, on the relation of U. S. Webb, Attorney-General, v. Paul O. Pate et al.” The complaint was filed on October 18, 1934, and the action was brought for the purpose of canceling T alleged fraudulent registrations of voters in Los Angeles County.

Upon the filing of the complaint the respondent court issued an order requiring the defendants, some 24,000 in number, to show cause before a special master why their registrations should not be canceled.

The court found that it was impracticable to serve the order to show cause personally upon the defendants and directed that, in lieu of such personal service, the order be published once in the “Los Angeles Daily Journal”, and a news item be inserted in the daily papers of the city that the defendants could ascertain whether they were sued by an inspection of the order to show cause on file at certain designated places. The present proceeding was commenced on October 22d by, some of the defendants on behalf of all of them.

The return of the respondents is by way of demurrer for want of sufficient facts, and by answer which shows that on October 24th the court issued a supplemental and amended order to show cause requiring postal cards to be mailed to said defendants. Personal service of summons or other notice was not provided for and was specifically dispensed with.

Certain of the defendants voluntarily appeared in said action and the court has announced its intention to proceed as to the defendants not personally served and who have not appeared, and adjudicate their right to vote at the general election to be held on November 6, 1934. The petitioners herein attack the power of the-respondent court to proceed in the pending action on the ground that the court has no jurisdiction of the subject-matter of the action and, if it has such jurisdiction, that it has no jurisdiction of the persons of the defendants who have not appeared and have not been personally served.

The right of the state to proceed by an action in equity in the superior court to purge the great register of fraudulent registrations may not seriously be questioned. It is one of the high prerogatives of the state to provide for and insure honest elections. Without this safeguard the liberties of the people and the stability of the government would be at an end. If, as we hold, the state may maintain such an action the right of the attorney-general to institute it may not be attacked.

The attorney-general, as the chief law officer of the state, has broad powers derived from the common law, and in the absence of any legislative restriction, has the power to file any civil action or proceeding directly involving the rights and interests of the state, or which he deems necessary for the enforcement of the laws of the state, the preservation of order, and the protection of public rights and interests. (People v. Stratton, 25 Cal. 242; People v. Gold Pun Ditch & Min. Co., 66 Cal. 138 [4 Pac. 1152, 56 Am. Rep. 80] ; People v. Beaudry, 91 Cal. 213 [27 Pac. 610]; People v.

Oakland Water Front Co., 118 Cal. 234 [50 Pac. 305]; 3 Cal. Jur., p. 561; 2 R. C. L., p. 918; 6 Cor. Jur., p. 812.) The petitioners claim that the jurisdiction of the subject-matter is lacking because an identical remedy is afforded by

section 1109 of the Political Code. That

section provides that “any person” may bring an action in the superior court to cancel fraudulent registrations. The attorney-general asserts that the state is not “any person” as provided by that section. We have not been referred to any authority, and we have discovered none, that the state is so included, although the purpose of an action under

section 1109 is the same as the pending action. But neither is the

section to be construed as a restriction upon the broad powers of the attorney-general. The fact that a remedy is given to a private individual to institute such an action could not operate to deny the power of the attorney-general to bring a similar action on behalf of the state, which power exists independent of said section. We conclude that the respondent court has jurisdiction of the subject-matter of the action.

But jurisdiction of the persons of the defendants who have not appeared and who have not been served with summons or who have not been served personally with the order to show cause, does not appear. The legislature might provide for constructive or substituted service in such cases, as has been done in other states, but it has not done so. We must then look to the law of the state as to what service is necessary. Before the right of suffrage may be denied to an individual he must have notice and an opportunity to be heard in the manner provided by law.

Here the substituted service sought to be applied is not available, and jurisdiction of the person must be obtained in the usual manner by personal service, or by substituted service of summons as provided in

section 412 of the Code of Civil Procedure, before the rights of the litigant may be finally adjudicated. This is true under the law whether the action be in rem or in personam where, as here, no service is provided by the law of the state except by summons or by other personal service. Any order made in the pending action, though provisional, which would deny to any defendant the right to vote at the election on November 6, 1934, would be in effect a final adjudication of the right to exercise the elective franchise as to that election. The holding of the District Court of Appeal in Ash v.

Superior Court, 33 Cal. App. 800 [166 Pac. 841], is directly applicable to this proceeding. There an elector sued under

section 1109 of the Political Code to cancel alleged fraudulent registrations. The voters whose registrations were claimed to be fraudulent were not made defendants in the action. It was properly held that the registrants were necessary parties to said action, and that before they could be deprived of the valuable right to vote they must be regularly served with process. This is particularly true when the legislature has not provided for some lawful method for substituted service.

The peremptory writ of prohibition and order, heretofore issued, limited as follows, was therefore appropriate: “It is ordered, that the respondent superior court herein be and it is hereby prohibited from making or entering any judgment, order or decree in the action pending in said court entitled: ‘The People of the State of California on the relation of U. S. Webb, Attorney-General, Plaintiff, v. Paul O.

Pate et al., Defendants’, numbered 379410 in said court, adjudicating the status, or affecting the rights of any defendant in said action who has not been regularly served with summons or who has not been otherwise personally served with notice to appear or who has not appeared in said action. “Let a peremptory writ of prohibition issue accordingly.”