Miner

Application for a writ of mandate. The petitioner seeks by this writ a direction to the respondents commanding the said Gentry to issue an execution upon a judgT ment alleged to have been recovered by the petitioner against A. M. Niver in the justice’s court for the town of Berkeley, July 20, 1897, on an action commenced therein July 9, 1897. The ques; tion presented for determination is whether the justice’s court for the town of Berkeley was in existence at the time the plaintiff commenced the action against Niver, or subsequent thereto, and this involves a consideration of the effect of the adoption of a freeholders’ charter upon the previous charter of the town.

The town of Berkeley was incorporated by an act of the legislature passed April 1, 1878. (Stats. 1878, p. 888.) Section 3 *265 of this act declares: “The government of said town shall he vested in a board of trustees, to consist of five members, an assessor, a marshal, who shall be ex officio tax collector, a clerk, a treasurer, two justices of the peace, and two constables.” Provision is made in other sections for the election and duties of justices of the peace and defining their jurisdiction.

February 26, 1895,…

I dissent. In my opinion, that part of the act of April 1, 1878, incorporating the town of Berkeley, which creates the office of justice of the peace was not repealed by the freeholders’ charter of February 26, 1895. It could not have been so repealed, because, as heretofore held, a freeholders’ charter cannot deal at all with the judiciary; and, therefore, that part of the act of February 26th which creates the office of *267 justice of the peace could not he repealed except hy a law, and “no law shall be passed except by bill,” which must be signed by the governor, or, in the event of his veto, passed by two-thirds of the members of each house of the legislature. (Const., art. IV secs. 15 and 16.) The provision of section 8 of article XI, that a freeholders’ charter shall supersede any existing charter, applies, in my opinion, only to those things which may be legally included in a freeholders’ charter, and not to the judiciary. Nor, in my opinion, is the act of March 37, 1895, creating and establishing a justice’s court in the town of Berkeley, unconstitutional. Justices of the peace, under article VI, section 1, are constitutional officers, and by section 11 of the same…