Opinion
Hearing Granted by Supreme Court Aug. 7, 1930
On petition for rehearing.
Petition denied.
For former opinion, see 289 P. 651. COUNSEL
B.W. Gearhart, Loren A. Butts, and David E. Peckinpah, all of Fresno, for petitioner.
Glenn M. De Vore, Dist. Atty., and Arthur C. Shepard, Deputy Dist. Atty., both of Fresno, for respondents.
OPINION
MARKS, J.
The respondents have filed a petition for a rehearing in this case and have called this court’s attention to the opinion in the case of Antilla v. Justice’s Court of Big River Township, rendered by the Supreme Court on June 19, 1930 (290 P. 43), which was subsequent to our decision of this case on June 11, 1930.
In the Antilla Case the Supreme Court considered the effect of the amendment of 1929 to section 1425 of the Penal Code (St.1929, p. 861), and reached the conclusion that the effect of this amendment must "be held to have been to confine the jurisdiction of the Justices’ Courts in criminal cases to the township wherein the offense was committed. It follows that the Justice’s Court in Big River Township is without jurisdiction of this case." Big River township is in the county of Mendocino, state of California, and, while it does not appear from the opinion that the township had less than 30,000 population, we believe that this fact may be assumed, as well as the fact which would follow as a necessary conclusion from the foregoing assumption that the misdemeanor for which Sofie Antilla was prosecuted was one in which the offense was "punishable by fine not exceeding one thousand dollars, or imprisonment not exceeding six months, or by both such fine and imprisonment." Section 1425, Pen.Code. We therefore believe that under the facts before it the Supreme Court held that in townships having a population of less than 30,000, and in prosecutions for the lesser misdemeanors of which such justices’ courts have jurisdiction, it lies in the township in which the offense was committed.
There are, however, certain of these lesser misdemeanors which we believe may be prosecuted in a township other than where the offense occurred. It is provided by section 154 of the California Vehicle Act (Stats.1927, p. 1441) that, when a person has been arrested for violation of certain of the provisions of this act, he shall appear before the magistrate of the township in which the offense was committed unless he demand that he appear before "a magistrate of the township in which is located the county seat of the county in which such offense is alleged to have been committed," whereupon such magistrate shall have jurisdiction of the offense charged.
We do not believe that the amendment of section 1425 of the Penal Code in 1929 can be construed as an amendment of section 154 of the California Vehicle Act. The California Vehicle Act is an act having a special application, while section 1425 of the Penal Code is general in its effect.
It is a general rule of construction that a statute having a special application controls a general one without regard to the dates of their passage and that an act general in its character will not annul the provisions of one covering a special subject, even though it seems to cover the same general ground. People v. Pacific Improvement Co., 130 Cal. 442, 62 P. 739; McNeil v. Kingsbury, 190 Cal. 406, 213 P. 50; Riley v. Forbes, 193 Cal. 740, 227 P. 768; Bateman v. Colgan, 111 Cal. 580, 44 P. 238; Glassell Development Co. v. Citizens’ National Bank, 191 Cal. 375, 216 P. 1012, 28 A.L.R. 1427.
There is a presumption against implied repeals (Inyo County v. Hess, 53 Cal.App. 415, 200 P. 373), and it is the duty of the courts to give full force and effect to all statutes not expressly repealed in so far as it may be reasonably possible so to do. It is well settled that the inconsistency between statutes must be clear, actual, and irreconcilable before a repeal by implication will be said to exist. People v. Pacific Improvement Co., supra; In re Johnson, 167 Cal. 142, 138 P. 740; In re Mitchell, 120 Cal. 384, 52 P. 799; Board of Education v. Talbert, 52 Cal.App. 657, 199 P. 555.
For these reasons we believe that the jurisdiction in the class of cases coming under the California Vehicle Act may be found in the justice’s court of the county seat if demand is made therefor, and also in the justice’s court where the offense was committed where there is no such demand.
In the case of Proctor v. Justice’s Court of the City of Berkeley (Cal.Sup.) 285 P. 312, which opinion was rendered on February 20, 1930, and after the amendments to the Penal Code of 1929, the Supreme Court was also considering the jurisdiction of a justice’s court under these amendments. In this case, however, the jurisdiction considered was that of a justice’s court in a township of over 30,000 inhabitants, and of an offense, the penalty for which was by fine of not more than $1,000 or by imprisonment for not more than one year, or both. Section 21, tit. 2, Volstead Act (27 USCA § 33). In this case the Supreme Court reached the conclusion that the justice’s court of the city of Berkeley had concurrent jurisdiction with the justice’s court of Oakland township over the offense committed within the town of Emeryville, which was within the boundaries of Oakland township and within Alameda county, but without the corporate limits of the city of Berkeley.
Construing the Antilla Case with its facts in mind with the Proctor Case under its particular facts, we reach the conclusion that they are not in conflict and that a city justice’s court in a city having a population in excess of 30,000 has original jurisdiction of misdemeanors committed within the county, where the penalty exceeds a fine of $1,000 or imprisonment of more than six months, and where the jurisdiction is not otherwise specially given to some other court.
The city of Fresno is the county seat of Fresno county. Its population exceeds 30,000. Therefore we conclude that the criminal jurisdiction of the justice’s court of the city of Fresno is more extensive than the police court of such city. We reach this conclusion after again considering the language of the charter of the city of Fresno providing for and creating the police court in such city. We are of the opinion, as we were when our original opinion was filed, that the phrases "within the city limits" and "in the city" are words of limitation of the jurisdiction of the city police court, giving it jurisdiction only in cases and proceedings arising within the city limits of the city of Fresno.
The case of In re Lovall (Cal.Sup.) 279 P. 452, 453, was decided before the amendments of 1929 to section 1425 of the Penal Code and section 112 of the Code of Civil Procedure. An examination of this latter section, as amended (St.1929, p. 834), does not bring it within the rule of Antilla v. Justice’s Court, supra. Therefore we believe that the decision in Re Lovall, wherein it was said that "in civil matters the justices’ courts have jurisdiction of many actions arising without the city or township within which they are situated" is controlling here, and that we are justified in the conclusion that the city justice’s court of the city of Fresno has jurisdiction of civil cases which could not be brought within the police court of such city.
It is true that the language used in the opinion filed in this case will have to be construed with the decision in the case of Antilla v. Justice’s Court, supra, in mind. However, for the reasons given, we are of the opinion that the petition for rehearing must be denied. The case is an interesting one and presents many questions of importance to those having litigation in the justice’s courts throughout the state. Owing to the uncertainties in justice’s court practice arising from the recent amendments to the Code of Civil Procedure and the Penal Code and the necessity of construing three recent decisions of the Supreme Court in this opinion, counsel for respondents, if they be so advised, should submit the matter to the Supreme Court by a petition for a hearing hereof.
Petition for rehearing denied.
I concur: BARNARD, Acting P.J.
OWEN, Justice pro tem., being absent, does not participate herein.