answering. He could do nothing in short but what he did— discharge the attachment for contempt-unless, as seems to be contended, Bickford's contempt of the authority of the board of equalization was a misdemeanor punishable as other misdemeanors, and that in a summary proceeding by the superior judge. But there is no statute making a contempt of the authority of the board of equalization a misdemeanor, and if it were a misdemeanor the constitution would require it to be prosecuted in the name of the People of the state of California (Art. VI, sec. 20) and in the ordinary form of procedure and subject to the common rights of defendants in criminal actions.

The amount of it is that the statute needs to be amended and strengthened, by making the contempt of the board a misdemeanor and providing an adequate penalty. The present statute, owing to the short life of the board of equalization is practically impotent.

SHAW, J., dissenting. I agree with all that is said in the foregoing opinion by the court, except the discussion and conclusion to the effect that the order erroneously made by the superior court cannot be annulled on certiorari. The superior court was not without jurisdiction, for it still retained power to punish the party for the contempt by imposing a fine or imprisonment. It did not exercise its jurisdiction by deciding that Bickford should not, under the facts charged, be punished. It dismissed the proceeding solely because it decided that it had no jurisdiction to impose any punishment, no power to act at all in the matter. The court, by the order dismissing the proceeding, erroneously divested itself of further jurisdiction thereof. "Where such is the case, the writ of certiorari is a proper proceeding to annul the order." (Hall v. Superior Court, 71 Cal. 550, [12 Pac. 672]; Levy v. Superior Court, 66 Cal. 292, [5 Pac. 353; Hall v. Superior Court, 68 Cal. 25, [8 Pac. 509]; Carlson v. Superior Court, 70 Cal. 631, [11 Pac. 788].) The entire proceeding before the board of supervisors and the ancillary proceeding in the superior court was at the behest of the state, and they were had for the purpose of securing the equal taxation of the property liable thereto, a matter in which the state is directly interested and is, in fact, the real party in interest. It is therefore benefi

cially interested to a sufficient extent to give it a standing in court to have the order annulled and the prosecution for contempt of its authority completed and determined. The order dismissing the proceeding should, in my opinion, be annulled and the superior court, being then invested with jurisdiction, could proceed to trial and judgment upon the charge against Bickford.

LORIGAN, J., dissenting.-I concur with the views expressed in the foregoing dissenting opinion of Mr. Justice Shaw. As to the prevailing opinion, while I am satisfied that from the undisputed certification of facts Bickford was guilty of contempt of the authority of the board of supervisors meeting as a board of equalization, I cannot agree with the view announced therein that there is no party beneficially interested in this proceeding who is entitled to have the order of the court annulled on certiorari.

The constitution-article XIII, section 1-requires all property not exempt from taxation to be taxed in proportion to its value and under section 3672 of the Political Code the board of supervisors meeting as a board of equalization is invested with the power and it is made its duty to carry this constitutional mandate into effect. It is directed by said section 3672 to "equalize the assessment of property in the county," and unless all property is assessed necessarily the assessment is not equal and the constitutional mandate that all property be taxed is not carried into effect. The board, as an agency of the state, was proceeding to carry out this duty under the provisions of the law authorizing it to examine witnesses for that purpose when Bickford refused to testify and for such refusal was guilty of contempt under section 4068 of the Political Code and to punishment therefor under section 4069 of the same code.

These proceedings before the board in the matter of equalizing assessments are essential proceedings in which the state is vitally interested, being directed, under the provisions of the constitution and statutes, toward the securing of the equal assessment of all property. This being true, it must be equally beneficially interested in proceedings brought to punish for a contempt of its authority in an endeavor to discharge this public duty. There is no room for any distinction as far as

the public interests-the interests of the state-are concerned in proceedings before the board in the matter of the equalization of assessments and proceedings for contempt of the authority of the board in attempting to do so. They are both in aid of the public interests.

While, of course, it must be conceded that when the order discharging the attachment was made there was no board in session before which Bickford might have voluntarily appeared to purge himself of contempt or before which the court might have required him to appear and answer and order him imprisoned until he did so, still this afforded no warrant for the action of the court in discharging the attachment and releasing him. He was guilty of contempt in refusing to answer before a board which was lawfully in session at the time of the refusal. If the result of his contumacy was that before he could be brought to bar for contempt his opportunity to purge himself therefrom was gone, this constituted no reason why the judge of the superior court should have discharged him without punishment. He was still guilty of contempt and the court should have exercised its power and punished him by fine or imprisonment or both.

Respondent claims that by the order discharging Bickford the superior court has now lost jurisdiction to proceed at all against him and that no substantial benefit can be obtained by an annulment of the order. I do not agree with this view. The effect of the annulment of the order in question here is to leave the proceeding before that court as it stood when that order was made. It then had jurisdiction of him and it has now the power to secure his presence before it by a bench warrant. It is its duty to do so and try him for the alleged contempt and if found guilty punish him. Such disposition of the case is essential in my judgment to the proper maintenance of the power and dignity of the state.

SHAW, J., concurring.-I concur in the foregoing opinion of Justice Lorigan.

[8. F. No. 5807. In Bank.--September 13, 1911.]

MARY C. ROSENHOLZ, Respondent, v. ALFRED ROSENHOLZ, Appellant.

APPEAL RIGHT TO STAY OF EXECUTION-PETITION FOR ALTERNATIVE WRIT OF RESTITUTION-CONTROVERTED FACTS-CONTINUANCE FOR HEARING. Where an appellant, for the purpose of preserving his statutory right to a stay of execution pending an appeal to this court, petitions this court for a writ of restitution of the possession of the real property involved in the appeal, which is alleged to have been delivered by the court, after an application to fix the staybond, but the facts are controverted, as to whether the writ of possession was before or after the application for the stay-bond, the cause will be continued for further hearing and evidence upon notice to the parties interested.

PETITION for Writ of Restitution of real property by Appellant, pending appeal from a judgment of the Superior Court of the City and County of San Francisco.

The facts are stated in the opinion of the court.

R. M. Royce, and Austin Lewis, for Petitioner.

Leo Kaufmann, for Respondent.

THE COURT.-This is a petition for a writ of restitution, restoring to petitioner the possession of certain real property, and preserving his statutory right to a stay of execution pending an appeal from the judgment of the superior court of the city and county of San Francisco. It is made to appear by the petition that an interlocutory judgment and decree awarding to plaintiff the property in question was duly made and given; that he appealed from this judgment and repeatedly sought the court to fix the amount of a bond to stay the execution of the judgment pending the appeal; that the trial court failed to do this, while maintaining the status quo by its order staying execution of the judgment. The last application to the court to fix the stay-bond upon appeal, it is alleged, was made upon January 5th. Upon January 6th, in the absence of defendant's attorney, upon application of plaintiff's at

torney, the order staying execution was vacated, and a writ of possession ordered issued by the judge. Upon acquiring knowledge of this, and before the execution of the writ by the sheriff, defendant's attorney secured another stay of execution for two days, and likewise an order fixing the amount of the stay-bond; that this order was served upon the sheriff; that within the time limited by it a good and sufficient stay-bend was filed; that, notwithstanding this, petitioner was ousted of possession by unauthorized persons not connected with the office of the sheriff of the city and county; that petitioner's attorney then made application to the court for a writ of restitution which the court refused to consider, "handing the same to the clerk and telling him to tell defendant's counsel to take it away." An application for relief was then made to this court. The answer to the petition joins issue upon certain of these averments. Thus, it is denied that petitioner ever made application to the court to fix the amount of the staybond until after the court had issued its writ of possession to plaintiff under the judgment and this writ had been duly executed by the sheriff. It is further denied that the sheriff did not execute the writ, and that the writ was executed by unauthorized persons. Manifestly the rights of petitioner, if he had made timely application for a stay-bond pending his appeal, would be very different from the rights that would be his if he had made such application only after execution of a judgment. The condition of the record making it impossible for this court to determine this and other controverted questions of fact herein adverted to, it is ordered that the order of submission in the above entitled matter heretofore made be vacated, that the cause be set down upon the calendar of the next law and motion day, October 2, 1911, for further hearing and evidence upon these matters, and that timely notice be given of this order to the parties interested.