Ex parte Sparks

This is a proceeding upon habeas corpus. The petitioner states that he was arrested upon a complaint sworn to before one E. C. Rutherford, who claimed to be clerk of the police court of the city of Sacramento, and was thereafter tried and convicted in a pretended police court of said city, which court was presided over by Honorable G-. G-. Davis, who styled himself police judge, and was sentenced in said pretended court by said alleged judge to six months imprisonment in the county jail of Sacramento county, and is now held by Frank T. Johnson, sheriff, by'virtue of said judgment and commitment issued thereon.. It is contended that there is legally no such court and no such judge, and, therefore, the detention is unlawful.

' Sacramento is governed under a so-called freeholders’ charter, which was approved by the legislature by resolution merely. _ It took effect January 8, 1894. (Stats. 1893, p. 547.)

The charter provided (section 50) that the jurisdiction which had previously been exercised by the police court should' be vested in the city justice of the peace, and it was made the duty of such justice to hold a police court. The jurisdiction of the court is provided in the…

I concur in the judgment, and .also in that portion of the foregoing opinion which holds that, since January 8, 1894, when the freeholders’ charter went into effect in Sacramento, the police court previously existing in that city has had no existence; and also in that portion of the opinion which holds that section 8½ of article XI of the constitution, which was adopted as an amendment to the constitution in the year 1896, is prospective in its operation, and cannot be invoked for the purpose of validating the provision for a police court in a freeholders’ charter previously adopted.

It was held by this court in People v. Toal, 85 Cal. 333 , after mature consideration, that a police court could not be created by the mere approval by the legislature of a freeholders’ charter that had been adopted by a municipality. Whether the principles upon which this case was decided are affected by the adoption of the aforesaid amendment to article XI of the constitution, is a question not involved in this proceeding, and which does not require any expression of opinion.

Garoutte, J., eonciirred.

I am not able to concur with my associates, although I confess that the case, owing to careless legislation, is one difficult of solution, and that the position taken by the majority of the court is a strong one. The case of People v. Toal, 85 Cal. 333 , was decided in 1890, but no attention was apparently given to it in the Sacramento freeholders’ charter, which was adopted three years afterward. Still, as under the constitution as it then stood, a freeholders’ charter, approved by a mere concurrent resolution and not by a law, could not create a court, or deal in any way with the judiciary, I think it would not be an unwarrantable construction to hold that the charter of 1893 did not abolish the former police court which had been established and fixed by law under sections 1 and 13 of article VI of the constitution; and I think that such construction, if at all admissible, should prevail in the interest of public justice. It is warrantable, I think, to hold that the provision of the constitution that a freeholders’ charter shall “supersede any existing charter” applies only to those matters which may be provided for in a freeholders’ charter, and not to courts which cannot be…