Toal

In view of the recital from the bill of exceptions, above quoted by Mr. Justice Works, I am constrained to concur in the judgment. This is not a mere assertion or stipulation of counsel as to what the law is; but here it is certified by the court, as a fact in the cause, that the police court in which the defendant had his only preliminary examination is the police court authorized (established) “by senate resolution No. 2, approving the charter of the said city of Los Angeles,” and that said Stanton was elected judge of said court, and was acting by virtue of such election. On facts so certified this court cannot do otherwise than hold that the police court of which said Stanton was acting as judge had no legal existence, and consequently that there could be no judge thereof either de jure or defacto.

While a municipal charter framed, adopted, and approved as 'provided in article 11, section 8, of the constitution, is a law of the highest order, — one established by the people direct, and by the authority of the constitution,— “the organic law” of the municipality, superseding “any existing charter, and any amendments thereof, and all special laws inconsistent with such charter,…

I dissent. It would serve no useful purpose to enter upon an elaborate presentation of the views which have led me to a conclusion opposed to that of the court, but the point decided is so important that the occasion seems to justify a brief statement of the grounds upon which, in my opinion, that portion of the charter of Los Angeles establishing a police court should be held valid and operative.

I think that the framers of the constitution, in adopting the provisions of section 8 of article 11, intended to confer upon cities the power to frame and adopt charters which should be whole and complete. A municipal court of some sort was general^, and I believe universally, a part of all city charters in California before, and has been since, the adoption of the new constitution. A municipal charter containing no provision for a municipal court would be very unusual, to say the least. And so firmly is this idea implanted in the popular and profes *342 sional mind, that of the seven or eight freeholders’ charters that have been framed since the adoption of the new constitution, not one, I believe, has omitted to provide for a police court. When it is remembered that the boards…

I concur in the views of the chief justice.

The appellant was convicted in the court below of an assault to commit murder. From the judgment, and an order denying him a new trial, he appeals. *334 The judgment was reversed by this court (People v. Toal, 23 Pac. Rep. 203 ), and a rehearing granted. It was urged upon us in the petition for a rehearing that the effect of the decision was to oust the police judges of the city of Los Angeles from office without a hearing. Upon the second hearing, the police judges, as well as the attorneys in the case, and at least one amicus curise, were allowed to be heard, orally and by printed briefs, and the subject seems to have been thoroughly exhausted. There are hut two questions presented for our consideration by this second presentation of the case, viz.: 1. Was the police court of the city of Los Angeles attempted to be established by the new freeholders' charter of said city a valid and existing court at the time the judge, or pretended judge, thereof committed the appellant fortrial? 2. Can the question of the validity of said court be presented by the appellant in this way, or must the same be raised by a direct proceeding for that purpose? The point is made by the respondent that…