62 P. 935 | Cal. | 1900
Lead Opinion
The petitioner was convicted before Robert Edgar, claiming to be justice of the peace of the town of Berkeley, of violating an ordinance of that municipality. On appeal to the superior court the judgment of the justice’s court was affirmed, and in pursuance thereof petitioner is held in custody of the sheriff of Alameda county. He claims that his imprisonment was unlawful: First, because there is no justice’s court of the town of Berkeley; second, because the ordinance defining the offense of which he was convicted is void; and, third, because the complaint upon which he was prosecuted does not charge the offense defined in the ordinance.
It is assumed by counsel for petitioner that the question to be determined in this proceeding under his first point is
That the office of justice of the peace for the town of Berkeley has a legal existence is, I think, very clear. In the first place, it has been the law ever since 1880 that there shall be one justice of the peace in every city having 10,000 and not more than 20,000 inhabitants: Code Civ. Proc., sec. 103. This is part of a general law of the state (Code Civ. Proc., sec. 85 et seq.), the constitutionality of which has been frequently affirmed: Bishop v. City of Oakland, 58 Cal. 572; People v. Ransom, 58 Cal. 558; Coggins v. City of Sacramento, 59 Cal. 599. It will no.t be contended, I suppose, that Berkeley is not a “city,” within the meaning of this act, because it has styled itself in its charter the “town” of
But it is contended that, if this amendatory act refers to the classification of the act of 1883, it embraces only such cities and towns as have been incorporated under the general incorporation act; the proposition being that, unless a city or town has been so incorporated, it does not belong to any of the classes defined in the act of 1883, and especially if it has been incorporated under a freeholders ’ charter, as Berkeley has been, it does not belong in any class. So far as this argument depends for its support upon a construction of the amendatory act itself, it is refuted by the plain terms of the second section, which expressly provides that it shall not apply to cities incorporated under the general incorporation act; and, since they are made the only exception, the law must embrace all cities and towns with special charters. If, on the other hand, petitioner’s contention depends upon the
But it is still further contended that Berkeley is not a city of the fourth class in any sense attributable to the statute. I have already considered the objection that because it is organized under a freeholders’ charter, or, rather, because it is not organized under the general incorporation act, it belongs to no class created by the act of 1883; and I think it has been demonstrated that even under the original act it falls into its proper class by virtue alone of the number of its inhabitants, and certainly that it is comprehended in the classification of the amended law.
The other objection under this head is that the mere ascertainment of the fact that Berkeley has risen to a population exceeding 10,000 does not put it into the fourth class. This contention is based upon section 3 of the classification act and the point supposed to have been decided in Re Mitchell, 120 Cal. 384, 52 Pac. 799. The whole contention, however, is based upon a confusion of terms, and is unaffected by anything decided or involved in Be Mitchell. The question discussed in that case in both the principal and concurring ■ opinions was whether the police court of Los Angeles had ceased to exist the moment it was ascertained by a special enumeration that the population of the city exceeded 100,000, and all that was decided was that changes of municipal organization dg not take place automatically in consequence of changes of population which remove cities from one class to another. This is quite in consonance with the provisions of the classification act. A city of the fourth class, organized under the charter of that class, retains its charter notwithstanding an increase of population which puts it in the third class. But it does not follow that because its charter remains unchanged its class remains unchanged. On the contrary, the privilege of changing its charter depends upon a change of class. The charter has nothing to do with fixing its class. That is dependent upon population alone, which is an element of all cities, however organized. In organizing under the
Passing now from these questions of construction, which have been more fully considered, perhaps, than necessary, we come to the last contention of petitioner on this head, viz., that the act amending section 103 of the Code of Civil Procedure is unconstitutional, because it is a special law in a case where a general law could be made applicable. It is Said, in the first place, that the law is special because it makes no provision for cities of the first class or for cities below the fourth class. But this objection overlooks the fact that provision is made for cities in the unamended sections of the same chapter of the code (sec. 85 et seq., Code Civ. Proc.), and that it has never been deemed an objection to the validity of that law that no provision was made for justices of the peace in cities and towns of less than 10,000 inhabitants. For
Upon the foregoing considerations our conclusion is that in any possible view of the law the office of justice of the peace for the town of Berkeley has had a legal existence ever since the ratification of the freeholders’ charter in 1895. The office existing, it could be legally filled, and the title of the incumbent cannot be assailed collaterally in this proceeding.
The next question to be considered is the validity of the ordinance under which the petitioner was convicted. The second section of the ordinance reads as follows: “From and after the first day of October, 1899, it shall be a misdemeanor for any person, either personally or by an agent or agents, or servant or servants, or employee or employees, or as agent, servant or employee, within the limits of the town of Berkeley to sell or keep for sale, or offer for sale, or give away, or permit, for any consideration, to be given away, directly or indirectly, any vinous, malt or spirituous liquors, or any mixture thereof, or any alcoholic or intoxicating liquors of any kind, or to establish, open, maintain or carry on, any tippling-house, dramshop, cellar, saloon, barroom, billiard-room or any other room or place where any such liquors are sold, or kept for sale, or are given away, directly or indirectly, within said town: provided, however, that the provisions of this ordinance shall not apply to the sale of liquors by any licensed druggist upon prescription of a physician regularly
Counsel claim that this ordinance, and similar ordinances in other cities, if enforced, would cripple a leading industry of the state, and that they are in conflict with the policy of certain laws of the state relating to viticulture. As to the general legislation of the state, it seems to manifest quite as much solicitude for the prevention of intemperance as for the encouragement of wine-making; but, since it is conceded that the traffic in intoxicating liquors may be prohibited by local ordinance, the wine-making industry would not be greatly benefited by upholding the right of individuals not engaged in the traffic to sell or give away an occasional bottle of wine. Another objection to the ordinance is that it prohibits the sale of liquors for chemical purposes. This may result in inconvenience, but we cannot see that it affects the validity of the ordinance. Still another objection to the ordinance is that it creates a favored class, viz., licensed druggists and physicians, who, by combining together, and complying with easy conditions, may carry on a traffic in intoxicating liquors to any extent; for, it is contended, the sale by druggists is not required to be for medicinal purposes, and, if a licensed druggist can only get a licensed physician to furnish the prescriptions, he may sell liquor to the sick and to the well alike. We do not think this argument needs a very serious treatment. Even a penal law would not be so construed as to sanction so manifest an evasion. The ordinance protects only sales in good faith upon regular prescriptions. We think the ordinance is valid so far as it relates to the charge against the petitioner. As to other matters the case calls for no expression of opinion.
In conclusion we will briefly notice the final contention of petitioner, viz., that the complaint does not sufficiently charge
I concur: Van Dyke, J.
I concur in the judgment: Garoutte, J.
Dissenting Opinion
Soon after this case was submitted, I prepared the annexed opinion, and a judgment discharging petitioner from custody. To that opinion I still adhere, notwithstanding the reasoning of the chief justice. I do not agree with the criticisms upon Miner v. Justice's Court of the Town of Berkeley. The counsel who appeared in that case, with one exception, appear also in this, and all points were then made in favor of the existence of the justice’s court which are made here, so far as they then could have been made. The bearing which the new legislation would have upon the matter was, of course, not then considered. The questions discussed in the opinion were the only ones then thought material. The new proposition now made would, at the most, have been only an additional argument against the position then taken by the court. But, in my judgment, there is no force in the argument now made. The joint reso
The principal opinion also relies upon the special census taken under the amendment of the classification act, which amendment was made in 1899. I have shown—at least to my own satisfaction—that this amendment does not apply to any city or town which could not effect a change of its organization from one class to another; and, further, that after the census has been taken the city does not enter the new class until the reorganization has been accomplished. It was held by Mr. Justice Henshaw that such was the ease even under the classification act of 1883: In re Mitchell, 120 Cal. 384, 52 Pac. 799. Section 103 of the Code of Civil Procedure does not provide that cities having a population of 10,000 and not
It is said that when the first classification act was passed it was intended to include and apply to all municipalities. For one I concede this. There were then no freeholder charters, and but one city could have formed a charter under the constitution as first adopted; and the legislature could amend or change all municipal charters by general laws. It was held that such general laws were laws in regard to the organization of municipalities: City of Los Angeles v. Teed, 112 Cal. 319, 14 Pac. 580; City of Pasadena v. Stimson, 91 Cal. 249, 27 Pac. 604. Since then the constitution has been amended, and now general laws do not affect any cities or towns as to municipal affairs. There can be then no possible purpose for a classification under the constitution except as to cities and towns formed under the municipal incorporation act. The classification for this purpose does not make the reference to the classes for other purposes general laws. Such laws will be special unless justified for other reasons than the refer- < enee to such classes. This was elaborately shown by the chief justice in Dougherty v. Austin, 94 Cal. 601, 16 L. R. A. 161, 28 Pac. 834, 29 Pac. 1092. I perceive no effort in the principal opinion to answer the objection that section 103, as amended, is a special law, if it applies to the town of Berkeley. In that respect it is the precise case considered in Miner v. Justice’s Court.
We concur: Henshaw, J.; Harrison, J.
The petitioner is held in custody for a violation of an ordinance of the town of Berkeley upon a judgment before Robert Edgar, who claimed to be, and acted as, a justice of the peace of the town of Berkeley. The petitioner contends: (1) That under the laws and constitution of the state there is no justice court in the town of Berkeley, and therefore Edgar was not a justice of the 'peace; (2) the ordinance under which the conviction was had is void, because repugnant to general laws of the state, and also to the state and federal constitutions; and (3) the complaint upon
“It was decided by this court in Miner v. Justice Court, 121 Cal. 264, 53 Pac. 795, that there was no justice court in the town of Berkeley. It ivas said that the effect of the freeholders’ charter, adopted in 1895, was to abolish the provision for a justice court in the former special charter, and that the provision made in the freeholders’ charter for a justice court was ineffectual. It was also held that an act passed in 1895, purporting to create a justice court in the town of Berkeley, was void, because it was special and local legislation. In 189-9 the legislature passed two acts, which, it is contended, together had the effect of providing a justice court for the town of Berkeley. One was an act to amend the classification acts of 1883: Stats. 1899, p. 141. It authorized a special census of the inhabitants of any city or town, and provided that if, from such census, it should appear that the number of inhabitants would entitled the municipality ‘to reorganize under a higher or lower class,’ proceedings could be inaugurated to that end, and for the election of the officers required for the class to which it was changed, and that upon the qualification of such officers the corporation shall belong to such class. Then follow the provisions which throw doubt upon the purpose and effect of the amendment. They are: ‘Whenever the result of such enumeration shall have been declared by the council, board of trustees or other governing body, and entered in the minutes of such body, thereupon the number of such inhabitants so ascertained shall be deemed the number of the inhabitants of such city for all the purposes of this act, and for the purposes of legislation affecting municipalities. The clerk of the council, board of trustees, or other governing body of such city, shall cause a certified copy of such minute order to be filed with the board of supervisors of the county wherein such city is situated. ’ Counsel differ radically as to the effect of these two sentences. The petitioner contends that the census does not of itself change the class of the city, but only serves the purpose of the act, which is to enable the city or town to reorganize, and enter another class. The respondent argues that, as soon as the census return is entered in the minutes, the city enters a new class, and is thenceforth in the class indicated by the census return. But the presumptions are all against this construe
“The other statute referred to, passed,in 1899, consists in an amendment to section 103 of the Code of Civil Procedure. The former section, for the purpose of providing for justices of the peace in some cities, made a classification of cities having 10,000 and not more than 20,000 inhabitants, and cities having 20,000 inhabitants and not more than 100,000. The new section provides justices of the peace for cities of the second, third and fourth classes, but excepts from its operation cities and towns organized under the general municipal incorporation act. Berkeley is a city of the fifth class, and no justice of the peace is provided for cities of that class in section 103 as amended. It is contended that by virtue of the special census, and the return thereof, Berkeley became a city of the fourth class, for which class of cities" a justice of the peace is provided in the amended section. Berkeley was not reorganized under the act so as thus to become a city of the fourth class, and, having a freeholders’ charter, it cannot be. It has, therefore, not become a city of the fourth class, and under,the decision in Miner v. Justice’s Court, supra, it still has no city justice of the peace.
“It is further contended by the respondent that the city of Berkeley has a justice court by virtue of the constitution, irrespective of the legislative action or nonaction. This contention is based solely upon the proposition that section 1, article 6, declares that the judicial power of the state shall be vested in certain named courts, in which are included justices of the peace; and section 11 of the same article provides that the legislature shall determine the number of justices of the peace to be elected in townships, incorporated cities and towns, and shall fix by law their powers, duties and responsibilities. At the best this but declares that it is the duty of the legislature to provide such courts, but the constitutional provision ■ cannot be self-operative. In the absence of legislation, the justices cannot be elected; and, if they could be elected, they would have no duties or powers.
“I conclude that there is no city justice of the peace for Berkeley, and that the petitioner is illegally held.”
Concurrence Opinion
I concur in the judgment and in the opinion of the chief justice. I concur in all that part of the opinion which deals with the existence of the justice’s court because I think it right; and I concur in all the rest of the opinion because I think that the validity of the ordinance in question, so far as it deals with the sale of wines, etc., has been finally determined by former decisions of this court, from which I dissented: See Ex parte Campbell, 74 Cal. 20, 5 Am. St. Rep. 418, 15 Pac. 318, and Ex parte Christensen, 85 Cal. 208, 24 Pac. 747. I desire to notice, however, that the charge against the petitioner was that he had unlawfully, etc., “sold and given away” certain named liquors. The offense charged, therefore, necessarily included a sale. But the ordinance, going further than the notion of business or traffic, provides that it shall be a misdemeanor for “any person” within the limits of the town of Berkeley “to give away” any “vinous, malt, or spirituous liquors.” So that by the terms of this ordinance it would be a public offense punishable by imprisonment for any person in Berkeley, in his own home, and at his own table or fireside, to offer a glass of wine or beer to a guest; and I desire to say that when a petitioner convicted of this time-honored hospitality shall come here for relief I will not feel myself precluded from again inquiring whether or not a personal right guaranteed by the constitution has been violated.