I concur in the result; that is, that all punishment imposed by the contempt judgment be remitted. But I do not agree with the reasoning upon which the conclusion is based.
This court having concluded that the injunction in this case was sufficiently certain to justify an adjudication for contempt (City of Vernon v. Superior Court, 38 Cal.2d 509 [241 P.2d 243]), and thus affirmed that adjudication, now tortures the law by saying that the trial court abused its discretion in refusing to vacate and remit the punishment imposed for the contempt. That is to say: This court held in the prior proceeding that the judgment of contempt was proper but in this proceeding it holds that although proper, no punishment should be imposed for the contempt; that although there was no justification for the contemptuous conduct of petitioners which resulted in the contempt judgment, no punishment for that contempt can be imposed as a matter of law. I concur in the result reached here because it is the same as reached in my dissent in the former proceeding on the ground that the contempt judgment was not proper. Assuming, however, that the majority was correct in its former decision in'this ease, it is not possible now to achieve the- result here reached without ignoring settled rules of law.'
Hence, assuming that the' injunction was sufficiently certain to justify the judgment of contempt, the following appears. In the former'case the trial court rendered judgment finding the couneilmen guilty of contempt.' That judgment was affirmed by this court holding, in addition to finding the injunction certain, that it was immaterial-that there was no finding that .the. couneilmen intended to violate the injunction; that it was enough if they knew of the injunction and were able to obey it but" did not do so; that from those circumstances the' trial court could infer that their inaction was intentional; that it is no justification- for the violation of the injunction that it- was done on advice of' counsel; that the affirmance of the injunction judgment by the District Court *845of Appeal (People v. City of Los Angeles, 83 Cal.App.2d 627 [189 P.2d 489].) “conclusively" established that the bringing of actions on the old contracts ivas not in compliance with the injunction; and finally, that the issue of the nature of the punishment imposed could not be reviewed on a review of the judgment of contempt, but a motion to remit the punishment could be made in the trial court, the payment of the fines and serving the jail sentences having been stayed by this court pending the review of the contempt judgment.
The motion for remission of the punishment was made in the trial court and was denied. Now this court holds on a review of the denial by certiorari (which tests jurisdiction only) that the trial court abused its discretion in refusing to vacate and remit the punishment; that it had no basis for refusing to vacate or remit the punishment imposed for acts Avhich had been committed in the past. On the identical facts AA’hich were held not to affect adversely the contempt judgment in the former proceeding, that is, advice of counsel, commencing actions on the old contracts as a purported compliance with the injunction, lack of specific intent to violate the injunction etc., this court now holds that the entire punishment for the contempt judgment must be vacated or “remitted." That startling conclusion is reached and the authorities are brushed aside by the empty device of saying that this is a different proceeding. It may be, but the same issues are present here. If the councilmen are in contempt (and this court so held in the prior proceeding) there is no basis whatsoever for saying that the trial court cannot punish them at all for that contempt. Indeed the authorities are all to the contrary.
The rule is thus stated: “The petitioner not having had imposed upon him a fine for any of the contempts of which he has been adjudged guilty in excess of the amount authorized to be imposed by the provisions of the Code of Civil Procedure (sec. 1218), under Avhich this action was taken and had, this court is not authorized to hold the aggregate amount thereof excessive, whatever our views might be upon this matter.” (Lindsley v. Superior Court, 76 Cal.App. 419, 433 [245 P. 212] ; In re Carboni, 46 Cal.App.2d 605 [116 P.2d 453]; In re Friday, 138 Cal.App. 660 [32 P.2d 1117]; Seventy-Six L. & W. Co. v. Superior Court, 93 Cal. 139 [28 P. 813] ; People v. Latimer, 160 Cal. 716 [117 P. 1051].) As Mr. Justice Spence states in Donovan v. Superior Court this *846day decided (see post, p. 848 [250 P.2d 246]), where a fine of $500 was imposed for contempt and it was claimed on certiorari that it was excessive: “The trial court, therefore, had jurisdiction to impose a fine not exceeding $500 (within the limits of section 1218 Code of Civ. Proc.) for each contemptuous act of each petitioner, and, as the court did not impose a fine in excess of that amount for any such act, we cannot hold the aggregate amount of the fines imposed upon petitioners to be excessive. (Lindsley v. Superior Court, supra, 76 Cal.App. 419, 433-434.) ” The basic premise of the decisions in all of the cases is that under the statute: “The judgment and orders of the court, judge, or justice, made in eases of contempt, are final and conclusive,” (Code Civ. Proc., § 1222) and the only thing reachable on review of contempt orders are jurisdictional questions (Meyberg v. Superior Court, 19 Cal.2d 336 [121 P.2d 685].) The court here cannot be said to have exceeded its jurisdiction because it has the express authority under section 1218 of the Code of Civil Procedure to impose fines up to $500 and imprisonments up to five days. In fact its discretion fixing the punishment cannot be reviewed on certiorari; (Fredrickson v. Superior Court, 38 Cal.2d 593 [241 P.2d 541] ; Estate of Kay, 30 Cal.2d 215 [181 P.2d 1].)
These principles cannot be escaped, as the majority attempts, by saying that this is a different ease, that is, it involves a denial of a motion to remit punishment rather than a judgment of contempt, because by its language section 1222 of the Code of Civil Procedure, supra, states that the judgment and the orders made in cases of contempt, are final. Thus, certainly an order denying a motion for remission of punishment imposed for contempt is an order made in a contempt case, and is final, and it is reviewed here by certiorari which goes to jurisdictional questions. If that is not true then the order of denial would not be reviewable on certiorari because it would not be final under section 1222; it could be reviewed only on appeal as a special order made after final judgment (the contempt judgment) (Code Civ. Proc., § 963).
The majority opinion holds “that it was a manifest abuse of discretion of .the trial court to refuse to remit the punishment of the individual petitioners and the municipal corporation which could act only through the individual petitioners.” Prom the foregoing statement, we are justified in assuming that it is the view of the majority that the trial *847court had at least some discretion in determining what if any portion of the punishment should be remitted. In other words the trial court might have remitted $100 of the fine and one day in jail or $400 of the fine and four days in jail for each petitioner. If such had been the order of the trial court, would this court hold in either instance that there had been an abuse of discretion t If so, then the trial court had no discretion to do anything other than remit all of the punishment. What the trial court did then was not to abuse its discretion but simply failed to predict what this court thought it should do. Obviously, if the trial court had any discretion to exercise, it was not abused if it acted within the limits prescribed by the statute (see Donovan v. Superior Court, supra). Otherwise the statute is meaningless and this court can nullify every contempt judgment even though clearly within the jurisdiction of the trial court to pronounce. Such is the effect of the majority holding in this case. As stated above, it is contrary to express statutory provision and all the authorities. But I concur in the result, because petitioners were not guilty of contempt, and should not, therefore, have been subjected to any punishment whatsoever.
Respondent’s petition for a rehearing was denied December 18, 1952. McComb, J. pro tern., acting in place of Shenk, J., disqualified.