Opinion
Rehearing Granted April 17, 1929
Original proceeding by George E. Frioux for writ of mandate to be directed to Fred H. Johnson, as Auditor of San Joaquin County, to require him to deliver a warrant to petitioner for salary as justice of the peace. Writ denied. COUNSEL
Nutter, Hancock & Rutherford and A.P. Hayne, all of Stockton, for petitioner.
Guard C. Darrah, Dist. Atty., and Tom H. Louttit, Asst. Dist. Atty., both of Stockton, for respondent.
OPINION
PLUMMER, J.
This cause is before us upon the original application of the petitioner for a peremptory writ of mandate commanding and directing the respondent, as auditor of the county of San Joaquin, to issue and deliver to the petitioner a warrant for the sum of $200, as and for the compensation alleged to be due the petitioner on account of salary as a justice of the peace of the city of Stockton, county of San Joaquin, for the month of February, 1929.
The respondent demurred to the petition, alleging generally, that facts sufficient to constitute a cause of action are not set forth therein.
The record before us shows that the city of Stockton is a municipal corporation of the two and three-fourths class, and is incorporated as such under a freeholder’s charter adopted by the voters of the city of Stockton and ratified and approved by the Legislature of the state of California in the year 1923 (Stats.1923, p. 1321), and that said charter went into effect on July 1st of that year.
The petition then sets forth that at a general election held in said county of San Joaquin on the 2d day of November, 1926, he was elected to the office of justice of the peace of the city of Stockton; that the board of supervisors of said county thereafter caused an official certificate of election to said office to be issued to the petitioner; that the petitioner duly qualified as such justice of the peace by taking the oath of office and filing a bond as prescribed by law; that petitioner thereupon entered upon the discharge of his duties as such justice of the peace, and has continued to discharge the same ever since the 3d day of January, 1927, to and including the month of February, 1929; that the annual salary attached to said office is the sum of $2,400, payable in equal monthly installments of the sum of $200; that on the 1st day of March, 1929, the respondent declined and refused to issue a warrant to said petitioner in payment of his salary for the month of February, 1929, alleged to be due him, as hereinbefore stated.
The right of the petitioner to a warrant herein depends upon whether there is such an office as justice of the peace of the city of Stockton. The petitioner’s claim is based upon the provisions of section 103 of the Code of Civil Procedure, wherein it is provided that in cities of the class to which Stockton belongs, there shall be one justice of the peace. If this provision is operative in the city of Stockton, the petitioner’s claim is valid; if inoperative, the petitioner is not entitled to any salary by reason of any allegations contained in his petition.
Sections 1, 2, 3, and 4 of article 21 of the Charter of the City of Stockton, adopted and approved as herein stated, contains the following provisions relative to the establishment of a police court:
"Sec. 1. There is hereby created a police court in and for the City of Stockton, which is vested with all judicial powers granted by law to police courts of chartered municipalities, and which shall be presided over by the police judge.
"Sec. 2. The police judge must be qualified to practice in all the courts of the state of California, and must have been so qualified for at least two years next preceding the day of his election.
"Sec. 3. Said police court shall have jurisdiction concurrently, with the justices’ courts of all actions and proceedings, civil and criminal, arising within the corporate limits of the city, and which might be tried in such justices’ courts; and shall have exclusive jurisdiction of all actions for the recovery of any fine, penalty, or forfeiture prescribed for the breach of any ordinance of the city, of all actions founded upon any obligation or liability created by any ordinance, and of all prosecutions for any violation of any ordinance. The rules of practice and mode of proceeding in said police court shall be the same as are or may be prescribed by law for justices’ courts in like cases; and appeals may be taken to the superior court of San Joaquin County, from all judgments of said police court, in like manner and with like effect as in cases of appeals from justices’ courts.
"Sec. 4. The police judge shall be judge of the police court, and shall have the powers and perform the duties of a magistrate. He may administer and certify oaths and affirmations, and may take and certify acknowledgments."
In 1927 the Legislature approved certain amendments to the charter of the city of Stockton, whereby section 3 of article 21 of the charter was purported to be amended to read as follows:
"Sec. 3. Said police court shall have exclusive jurisdiction of all misdemeanors punishable by fine or by imprisonment or by both such fine and imprisonment committed within the corporate limits of the city. It shall also have exclusive jurisdiction of all actions for the recovery of any fines, penalties or forfeitures prescribed for the breach of any ordinance of the city, of all actions founded upon any obligation or liability created by any ordinance and of all prosecutions for any violation of any ordinance. Said police court shall have jurisdiction, in all civil cases, concurrently with the justices’ court of all actions and proceedings arising within the corporate limits of the city and which might be tried in such justices’ court. The rules of practice and mode of proceeding in said police court shall be the same as are or may be prescribed by law for justices’ courts in like cases; and appeals may be taken to the superior court of San Joaquin County, from all judgments of said police court, in like manner and with like effect as in cases of appeals from justices’ courts." Stats.1927, p. 2151.
The city of Stockton is a municipal corporation regularly chartered under the provisions of section 8 of article 11 of the Constitution, and section 8 ½ of article 11 is therefore applicable. That section reads, so far as pertinent here, as follows:
"Sec. 8½ . It shall be competent, in all charters framed under the authority given by section eight of this article, to provide, in addition to those provisions allowable by this Constitution, and by the laws of the state as follows: 1. For the constitution, regulation, government, and jurisdiction of police courts, and for the manner in which, the times at which, and the terms for which the judges of such courts shall be elected or appointed, and for the qualifications and compensation of said judges and of their clerks and attaches; and for the establishment, constitution, regulation, government and jurisdiction of municipal courts and judges thereof, with such civil, criminal and magisterial jurisdiction as by law may be conferred upon inferior courts and judges thereof; and for the manner in which, the times at which and the terms for which the judges of such courts shall be elected or appointed, and for the qualifications and compensation of said judges and of their clerks and attaches; provided, such municipal courts shall never be deprived of the jurisdiction given inferior courts created by general law.
"In any city or any city and county, when such municipal court has been established, there shall be no other court inferior to the superior court; and pending actions, trials, and all pending business of inferior courts within the territory of such city or city and county, upon the establishment of any such municipal court, shall be and become pending in such municipal court, and all records of such inferior courts shall thereupon be and become the records of such municipal court."
The amendment to section 3 of article 21 of the charter of the city of Stockton, as above set forth, purports to eliminate or take from the jurisdiction of the court criminal cases. In the original section the jurisdiction is given in these words: "Said police court shall have jurisdiction concurrently, with the justices’ courts of all actions and proceedings, civil and criminal," etc. In the amended section jurisdiction is given in these words: "Said police court shall have jurisdiction, in all civil cases, concurrently with the justices’ court of all actions," etc. The attempted limitation, if at all, is upon the exercise of jurisdiction in certain unspecified criminal cases.
Whether the amendment to the charter of the city of Stockton adopted in 1927, as above stated, does in fact attempt a limitation or change of the jurisdiction granted the court referred to by the provisions of the charter adopted in 1923, is wholly immaterial in so far as the issues before us are involved. By the terms of section 8½ of article 11 of the Constitution, the jurisdiction of the court established under the original provisions of the charter of the city of Stockton must be held to be the jurisdiction of that court as it now exists, in so far as the charter granted to such court jurisdiction theretofore exercised by inferior courts, if the court as originally established partakes of the nature and comes within the terms of the section of the Constitution where it speaks of municipal courts. In this particular the Constitution reads: "Such municipal court shall never be deprived of the jurisdiction given inferior courts created by general law." The court itself may be abolished, but the jurisdiction given inferior courts by general law remains vested as long as the court exists.
With this preliminary basis to reason from, we have only to determine whether the court originally established by the charter of the city of Stockton was endowed with the jurisdiction bringing it within the definition of a municipal court as defined in paragraph 1 of section 8½ of the Constitution, as the second paragraph of that section reads: "In any city or any city and county, when such municipal court has been established, there shall be no other court inferior to the superior court," etc. While the section of the Constitution uses the words "police court" and "municipal court," it is helpful to examine the general meaning of the words "municipal court." In 42 Corpus Juris, 1414, we find the following: "In the judicial organization of several states, courts are established under this name, whose territorial authority is confined to the city or community in which they are created. Such courts shall have a criminal jurisdiction corresponding to that of a police court, and in some cases possess civil jurisdiction in small causes." And in Uridias v. Morrill, 22 Cal. 474, it is said: "The term ‘municipal courts’ has a legal meaning and signification, and clearly includes Mayors’ and Recorders’ Courts, as those were well known and universally recognized as being of that character." And as further illustration of the meaning of the words "municipal courts," we refer to the case of Mathie v. McIntosh, 40 Wis. 120, where it is said: "The charter of the city of Wausau provides for a police justice, whose term of office is two years, and who has the power and jurisdiction of a justice of the peace, and exclusive jurisdiction of all cases arising under the city charter and ordinances," etc., was held to be a municipal court. In the case of In re Baxter, 3 Cal.App. 716, 86 P. 998, the District Court of Appeal of the Second District adopts an opinion by Judge Bledsoe, approving the definition of a municipal court, as supported by the cases just cited.
From what we have said it is clear that the general definition of a municipal court includes, as well, a court ordinarily named a police court, as where the words "municipal court" are used in describing the court to which reference is made, or upon which certain jurisdiction is conferred. A careful reading of subdivision 1 of section 8½ of article 11 of the Constitution would lead to the conclusion that the distinction between the two courts there referred to is really one of power and not of name, and if upon the court named as a police court, jurisdiction, civil, criminal, and magisterial is conferred as by law may be conferred upon inferior courts, then and in that case a municipal court, to all intents and purposes, is established within the meaning of the Constitution, irrespective of name or designation.
By the sections of article 21 of the charter of the city of Stockton, establishing a police court, civil and criminal jurisdiction is bestowed upon the court thereby established, to all intents and purposes as fully and completely as though the words "municipal court" had been used instead of "police court," which brings the name of the court so established within the meaning of the words "municipal court" as used in section 8½ of article 11 of the Constitution, and gives it the position, standing, and exclusive existence, within the city of Stockton, contemplated by the section of the Constitution; unless there are some words in the charter, as originally adopted, limiting the full application of the section of the Constitution. The petitioner contends that this limitation appears in the use of the word "concurrently," where section 3 referred to reads: "Said police court shall have jurisdiction concurrently," etc. It is argued that this word renders the section unconstitutional. In support of this contention the petitioner cites the case of Robert v. Police Court, 148 Cal. 131, 82 P. 838, where it was held that that portion of the freeholders’ charter of the city of San Francisco reading "concurrent jurisdiction with the Superior Court" was void. In that case an attempt was made to give the police court concurrent jurisdiction with the superior court over certain offenses. The decision in that case, however, is not applicable here, for the simple reason that the concurrent jurisdiction there referred to was an attempt to trench upon the jurisdiction of the superior court. While the decision is based upon cases having to do with section 5 of article 6 of the Constitution, it might also have been based upon section 11 of article 6, where, in speaking of inferior courts, it is further said: "Provided, such powers shall not in any case trench upon the jurisdiction of the several courts of record," except in certain cases there mentioned. The use of the word "concurrent" in the San Francisco charter, just referred to, was not found by the court in the Robert Case to be the vital defect, but it was in the attempt made to trench upon and limit the jurisdiction of the superior court. Where there are no constitutional restrictions limiting the power of the Legislature, concurrent jurisdiction may be conferred upon different courts, and such has been held to be the law in this state.
In the Matter of Yee Kim Mah, 31 Cal.App. 196, 159 P. 1060, this court, speaking through Mr. Justice Hart, had occasion to examine the meaning of the word "concurrent" as applied to the jurisdiction of inferior courts existing and exercising jurisdiction within the limits of the city of Sacramento. The case is too lengthy to quote therefrom to any extent, but in substance the holding is that the words "concurrent jurisdiction" meant that either one of the inferior courts there referred to might exercise jurisdiction.
To the same effect is the case of Ex parte Dolan, 128 Cal. 460, 60 P. 1094, where the words "concurrent" and "exclusive" were considered in acts conferring jurisdiction. It was there held that jurisdiction existed in the two courts referred to, and the word "exclusive," purporting to give one court sole jurisdiction, should be read out of the charter.
In 15 Cal.Juris. 1130, the power to confer concurrent jurisdiction is thus set forth: "The legislature may confer upon a court jurisdiction concurrent with that of another court, where such act is a legitimate exercise of the power conferred upon the legislature, having regard also to such jurisdiction as may be conferred upon the latter court by the Constitution of the state, so if the jurisdiction conferred upon the court by the Constitution is not exclusive, concurrent jurisdiction may be conferred upon another court. If, however, the jurisdiction so conferred is exclusive, an act of the Legislature conferring the same jurisdiction upon another court will be unconstitutional." The word "concurrent," as defined in 12 C.J. 393, is as follows: "Coincident or contemporaneous; acting in conjunction; running together; running with; cooperative; accompanying, etc.; having the same authority; operating upon the same objects; coextensive, and the like." The word is further described, when referring to jurisdiction, as authorizing different tribunals to deal with the same subject-matter.
In line with the foregoing citations and definitions, the conclusion appears to us unavoidable that the word "concurrently," as it appears in section 3 of article 21 of the Charter of the City of Stockton, was intended to and does give to the court organized by the sections of the charter to which we have referred, equal and like jurisdiction to that which justices’ courts could and were entitled to exercise under general law, and, being so entitled to exercise such jurisdiction under the terms of the second paragraph of subdivision 1 of section 8½ of article 11 of the Constitution, no room was left for the creation or the attempted creation of such a court known as the justices’ court of the city of Stockton, and the provisions of section 103 of the Code of Civil Procedure, as to cities of the classification of the city of Stockton, become, and at all times since the adoption and ratification of the charter of the city of Stockton were, inoperative and ineffective as a basis for such court. In other words, under the charter and the Constitution the jurisdiction of the court created under the charter was all-absorbing, and there was nothing left for such a court, as was attempted to be created in the case at bar, to act upon. The civil jurisdiction thus conferred upon the court by the city charter is defined by section 106 of the Code of Civil Procedure.
Though relied upon by the petitioner, we find nothing in the case of Platnauer v. Board of Supervisors, 65 Cal.App. 666, 225 P. 12, which supports the contention that there is any basis in law to support a court known as the justices’ court in and for the city of Stockton. In the Platnauer Case this court, in referring to the charter of the city of Sacramento, pointed out that the charter conferred no civil jurisdiction upon the court established by such charter, and in so doing used these words: "The Sacramento charter makes no provision for a municipal court." This sentence must be read and construed in connection with the failure of the charter of the city of Sacramento to clothe the court created by the charter with the necessary jurisdiction prescribed in the concluding sentence of subdivision 1 of section 8½ of article 11 of the Constitution. In general language, and as shown by the authorities which we have here cited, the court created by the charter of the city of Sacramento was and is a municipal court, but it was not endowed with the jurisdiction which precluded the establishment of another inferior court, to be and operate and exercise judicial functions as and for the same territory and identity known as the city of Sacramento.
The foregoing review, we think, brings this case and all the attendant circumstances clearly within the principles discussed and applied in the case of Robertson v. Langford (Cal.App.) 273 P. 150, and in view of that case, which it is not necessary to consider at length herein, there is no escape from holding that there is no room under the Constitution and the charter of the city of Stockton for such a court as is alleged to exist by the petitioner herein, and that the attempted bringing into existence of such a court by the alleged election of the petitioner as a justice of the peace thereof at the general election held in the year 1926, and the taking of an oath of office, and the assumption of jurisdiction as a justice of the peace of the city of Stockton by the petitioner, had and has no legal basis whatsoever, and therefore the petitioner is not entitled to an order of this court directing the respondent, as the auditor of the county of San Joaquin, to draw a warrant in his favor in the sum of $200, or any other sum, as and for his compensation alleged to have been earned by him as a justice of the peace of the city of Stockton. The demurrer of the respondent is sustained, and the application of the petitioner for a peremptory writ of mandate is denied.
We concur: FINCH, P.J.; THOMPSON, J.