Green v. Superior Court

21 P. 307, 78 Cal. 556, 1889 Cal. LEXIS 637

• Court: California Supreme Court
• Decided: April 16, 1889
• Docket: No. 20514
• Status: Published

Opinions

Works, J.

This is an application for a writ of prohibition to prevent the superior court in and for the city and county of San Francisco from proceeding further in an action of the people against the petitioner, upon a charge of conspiracy.

The ground upon which the jurisdiction of the superior court is contested is, that conspiracy is punished by imprisonment not exceeding one year, or by fine not exceeding one thousand dollars, or by both, and that jurisdiction in such cases is exclusive in the police court of said city and county.

The judicial power of this state is vested in the senate sitting as a court of impeachment, in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may establish in any incorporated city or town or city and county. (Constitution, art. 6, sec. 1.)

The constitution provides that the superior courts shall have jurisdiction in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for. (Art. 6, sec. 5.) It is further provided that the legislature shall fix by law the jurisdiction of any inferior courts which may be established in pursuance of section 1 of this article, and shall fix by law the powers, duties, and responsibilities of the judges thereof. In pursuance of these constitutional provisions, the legislature of the state has, by what is known as the consolidation act, as amended in 1872, prescribed the jurisdiction of the police court of the city and^ county of San Francisco; and among other things it is provided that said court shall have jurisdiction of misdemeanors punishable by fine not exceeding one thousand dollars, or by imprisonment not exceeding one year, or .by both, which necessarily includes the offense charged in this case, and of which the superior court has assumed jurisdiction.

The point made and relied upon in this application is, that under the provisions of the constitution the legislature has the power to establish inferior courts, and to confer upon such courts jurisdiction in cases of misdemeanor, and that when such jurisdiction is so provided for, the jurisdiction in that class of cases is taken away from the superior courts for the reason that they become misdemeanors “otherwise provided for” within the meaning of the constitution.

Conspiracy is punishable by a fine of not exceeding one thousand dollars, and imprisonment for one year, or by both, and jurisdiction in this class of cases is clearly conferred on the police judge’s court. (Stats. 1871-72, p. 84.) And this statute is still in force under the present code. (Ex parte Simpson, 47 Cal. 127.)

This jurisdiction has been reaffirmed by legislation subsequent to the adoption of the present constitution. (Stats. 1881, p. 75, act to create a police court in and for the city and county of San Francisco, approved March 5, 1889.)

These acts expressly exclude jurisdiction of justices’ courts from this class of cases. It seems to us, therefore, that the only question that can arise here is, whether the jurisdiction conferred upon police courts in this class of cases is exclusive or concurrent with that of the superior courts. The evident object and purpose of the constitution in providing for the jurisdiction of superior courts in cases of misdemeanor of the lower grades was to leave it to the legislature to provide inferior courts in cities and towns, with jurisdiction to try the same, and that such jurisdiction should vest in the superior courts only until such inferior courts should be provided for. The language of the constitution can bear no other construction. It vests this jurisdiction in the superior court, if not otherwise provided for. Just so soon as the jurisdiction is otherwise provided for, the authority of the superior court to act ceases. This has been held in the case of the justices’ courts. (Ex parte Wallingford, 60 Cal. 103; Gafford v. Bush, 60 Cal. 149.)

In Ex parte Wallingford the court says: “It is thus seen that by the express terms of the constitution the legislature is empowered to establish justices’ courts, and to confer upon them such powers as to it shall seem proper, provided such powers shall not in any case trench upon the jurisdiction of the several courts of record, with the exceptions already noticed. The limitation as to trenching upon the jurisdiction of the several courts of record obviously refers to the jurisdiction conferred upon those courts by the constitution itself. For example, as the constitution confers upon the superior court jurisdiction in all cases of felony, the legislature could not confer on the justice’s court jurisdiction in such a case. But while the constitution also confers on the superior court jurisdiction in cases of misdemeanor, it is of misdemeanors that are not otherwise provided for. When the legislature, pursuant to the power conferred by section 11 of article 6, ‘ to otherwise provide for ’ certain or all misdemeanors, does otherwise provide for certain of them, and confers upon the justice’s court jurisdiction in certain cases of misdemeanor, the jurisdiction so conferred becomes exclusive, for they then become cases of misdemeanor ‘otherwise provided for,’ over which, according to the express language of the constitution, the superior court has no jurisdiction.”

The only conceivable difference between the cases cited and the one at bar is, that the justices’ courts are expressly created by the constitution, while the police court is one created by the legislature under the authority of the constitution. We regard this difference as of no importance as affecting the question before us.

Taking the several constitutional provisions together, they vest in the inferior courts such jurisdiction as may be given them, so long as the jurisdiction thus conferred upon them does not infringe upon the jurisdiction expressly conferred upon some other court by the constitution itself. Section 1 of article 6 vests jurisdiction in such inferior courts as the legislature may establish in any incorporated city or town or city and county. This must be held to apply to the city and county of San Francisco, as it is the only consolidated city and county in the state. Section 13 of the same article provides: “The legislature shall fix by law the jurisdiction of any inferior courts which may be established in pursuance of section 1 of this article, and shall fix by law the powers, duties, and responsibilities of the judges thereof.”

Taking these constitutional provisions, together with the act creating the police court and defining its jurisdiction, and the jurisdiction may be said to be vested in the court by the constitution. We find nothing in the constitution or the statute indicating an intention to make the jurisdiction concurrent in the two courts.

In opposition to this view, counsel for the respondent lay down this proposition: “In order that a jurisdiction may ‘be otherwise provided for/ within the meaning of section 5 of article 6 of the constitution, that jurisdiction must be vested by the legislature throughout the state in a system of courts whose aggregate territorial jurisdiction will be co-extensive with the aggregate territorial jurisdiction of the system of superior courts; in other words, it must be taken from the superior courts as a system, and vested in some other courts as a system.” And enlarging upon this proposition, they say further: “The constitution uses the term ‘the superior court' (article 6, section 5); that term is a collective term. The constitution is dealing, not with individual superior courts, as separate and distinct courts, and as county establishments, but with the superior courts as a state system of courts. It is organizing a branch of the judicial department of the state government. It is engaged in creating a state institution,—a state establishment. The superior court as a system of courts is the subject-matter with which it is at work. It delimits the jurisdiction of that system. It gives that system as a unit the jurisdiction over misdemeanors. It declares a subtraction in a certain event from the jurisdiction, not of one distinct superior court, but from the jurisdiction of the entire system.” In support of this contention, counsel cite Spencer Creek Water Company v. Vallejo, 48 Cal. 72; In re Marks, 45 Cal. 217. But these cases do not sustain the position assumed.

This course of reasoning is plausible and ingenious, but not convincing. It goes to the expediency of the constitutional provision under consideration, and the statutes enacted under it, rather than to their construction. But we fail to recognize the force of the argument as affecting the expedieney of the law. In counties like San Francisco, or other counties in which large cities are situated, where the superior court in all its departments is necessarily crowded with business, the necessity may exist for the transfer of misdemeanors and petty offenses to inferior courts, with a view of relieving the higher courts of the burden of trying the same, while in other counties no such necessity exists. And it may be for this very reason that the constitution provides for the establishment of inferior courts in cities, towns, and cities and counties, and not generally throughout the state.

It is further insisted by the respondents that if jurisdiction is conferred upon the police courts, it is concurrent with the superior courts, and not exclusive. And in support of this position, counsel cite Courtwright v. B. R. & A. W. M. Co., 30 Cal. 574; Ex parte McCarthy, 53 Cal. 412; Rosenberg v. Frank, 58 Cal. 395.

We have carefully examined the cases cited, and find that they lay down the well-established rule that where jurisdiction is given, either by the constitution or by statute, to two different courts, not indicating whether such jurisdiction shall be exclusive or concurrent, that the same may be regarded as concurrent in both courts. But these cases do not reach the question presented here, for the simple reason that in our judgment the constitutional provision we are considering does indicate in plain terms that the jurisdiction of inferior courts thereafter to be created shall be exclusive, and not concurrent. The evident purpose of the constitutional provision, as evinced by its language, is, that the jurisdiction of the superior court shall be conditioned upon the establishment of other courts upon which the same jurisdiction shall be conferred, and when that condition happens, and the jurisdiction is by the legislature conferred upon such inferior courts, from that time .the constitution itself transfer’s such jurisdiction from the superior court and vests it in the inferior courts. From that time the jurisdiction is “otherwise provided for,” and the jurisdiction of the superior court at once ceases.

Again, it is contended that the jurisdiction in this case could not constitutionally he conferred upon the police court, for the reason that the offense is one that must be prosecuted by indictment or information, and that no such practice is provided for in case of such inferior courts.

What has been said upon the other points made is decisive of this question, and for the very same reasons. The distinction between high and low misdemeanors is one that has never been recognized in this state. The constitution and statutes relate exclusively to felonies and misdemeanors. The dividing line between the two is clearly marked and defined. The common-law dis/tinction between high and low misdemeanors, depending upon the question whether the offense charged was infamous or not, was more imaginary than real, and calculated to lead to great confusion and uncertainty in the administration of justice. To attempt, in this state, to perpetuate such a distinction would necessarily increase the avenues through which criminals too often escape justice. It is contended that the offense charged here was a high misdemeanor, and' always prosecuted by indictment prior to the adoption of the constitution of 1879, and that justices’ courts never had jurisdiction of such offenses. But this is a mere assertion, without authority to support it, and this court has expressly held that under the present constitution the legislature is empowered to establish justices’ courts, and confer upon them such powers as to it shall seem proper, and that under this provision the legislature may confer jurisdiction in the justices’ courts over misdemeanors, and that such jurisdiction is exclusive. (Ex parte Wallingford, 60 Cal. 104; Gafford v. Bush, 60 Cal. 149.)

The power given the legislature by the constitution is not limited to any class of misdemeanors, high or low, but extends to such offenses generally. (Const., art. 6, sec. 13.) Therefore, to hold that it is unconstitutional to try a misdemeanor of the kind here charged in a justices’ or police court, is to hold that the provision of the constitution referred to is itself unconstitutionak That it was the intent that such jurisdiction might be conferred upon inferior courts is manifest from the fact that the jurisdiction had already been conferred upon the police court by an act which was in force at the time the present constitution was adopted. (Stats. 1871-72, p. 84.) ^

^ The jurisdiction, so far as it relates to this particular court, has not been changed since the constitution was adopted. It was a misdemeanor “already provided for,” and strictly within the letter of the constitution. The

point made, that this class of cases cannot be prosecuted in inferior courts because they must be presented by indictment or information, does not affect the question of jurisdiction.

As was said in Ex parte. Wallingford, 60 Cal. 104:

“But counsel entirely overlook the all-important fact that the jurisdiction of the offense is not determined by the form of procedure by which it is prosecuted, but by the nature of the offense itself. And since, as already shown, the superior court has no jurisdiction of such misdemeanors as have been committed by the legislature to the justices’ court, and since the legislature has committed to the last-named court all cases of petit larceny, a conclusion quite the reverse of that drawn by respondent’s counsel would seem to follow from section 976 of the Penal Code.”

Section 13 of article 6 of the constitution provides: “The legislature shall fix by law the jurisdiction of any inferior courts which may be established in pursuance of section 1 of this article, and shall fix by law the powers, duties, and responsibilities of the judges thereof.”

Under this section the legislature has power to confer upon such courts jurisdiction in all cases not vested in some other court by the constitution. (Gafford v. Bush, 60 Cal. 149.)

That all misdemeanors are included in- this power is clearly apparent from the fact that jurisdiction of such offenses is, by the constitution itself, withheld from the higher courts upon provision being made by the legislature vesting it in such inferior courts. These cases could only be “otherwise provided for” by vesting the jurisdiction in such inferior courts as the legislature might establish, for the reason that power to create other courts, and to confer jurisdiction upon them, is confined to such inferior courts.

The legislature has acted upon this provision by conferring jurisdiction upon police courts in cities having a population of not less than thirty thousand, nor more than one hundred thousand inhabitants, in all misdemeanors. (Stats. 1885, p. 213.)

If counsel are right, that only low misdemeanors can be prosecuted in such courts, so much of this act as includes high misdemeanors is unconstitutional, and the court in which the action is commenced must, in every case, in order to fix its jurisdiction, determine whether the offense charged belongs to one or the other of the two classes of misdemeanors.

We find nothing in the constitution which leads us into this labyrinth of uncertainty. Its provisions are plain and direct. If one misdemeanor is within its terms, all must be; that it does confer the power to vest exclusive jurisdiction of some misdemeanors in inferior courts, has been decided by this court, as we have seen, in two well-considered cases; that it relates, in terms, to all misdemeanors, is equally clear to our minds.

The questions of law involved are raised by demurrer, but counsel have discussed the whole case in their briefs in such manner as to indicate to us that there was no dispute as to the facts, and we have considered the case fully with that understanding. If, however, it is desired, the respondent is allowed ten days within which to file an answer. If no answer is filed within the time limited, a peremptory writ of prohibition will issue as prayed for.

Sharpstein, J., McFarland, J., Thornton, J., and Beatty, O. J., concurred.