55 Cal. 212 | Cal. | 1880
Lead Opinion
The Police Court of the City and County of San Francisco is an “ inferior court ” of limited jurisdiction, whose powers are conferred, and whose duties and mode of procedure are prescribed, by statute, and to which the rule applies that the evidence of its proceedings must affirmatively show jurisdiction of the person'of the defendant, and over the subject-matter. The remark to the contrary in Ex parte Murray, 45 Cal. 455, is dictum. The only question there was, whether the judgment should have shown on its face the particular offense of which the petitioner had been found guilty ? There is frequently a difficulty in ascertaining whether a particular court is or is not u inferior ” within the meaning of that term as used in the books. In England, probably all courts, except the King’s
It is clear that courts invested with a general common-law jurisdiction in laAV or in equity are, when exercising their general jurisdiction, superior courts, Avithin the meaning of the rule Avhich accords every presumption in favor of the validity of their judgments. In the United States, hoAvever, it has frequently been held that a court may be limited and subordinate in its jurisdiction, and yet not be an inferior court “ in the sense that it ought to certify everything precisely.” (1 Saund. 74.) And this Avill explain some of the cases cited by counsel. In several of those cases, it Avas, in effect, determined that a court holding jurisdiction of all criminal cases should be protected, though it adjudge a matter to be criminal Avhich is not so, and proceed to punish it. (Ex parte Tobias Watkins, 3 Peters, 193 ; 5 Cranch, 173.) The Circuit Court of the United States for the District of Columbia having been determined to be a superior court, with jurisdiction oA'cr all crimes, the application of the rule Avas not difficult, and accordingly it Avas held, in Ex parte Watkins, that the judgment of that Court “ was evidence of its oavii legality, requiring no inspection of the indictment on which it was founded ”; and the Supreme Court refused to look at the indictment.
Wo do not forget that the only difference, ordinarily recognized betAveen superior and inferior courts, is that there is a presumption in favor of the validity of the judgments of the former, none in favor of those of the latter, and that a superior court may be shoAvn not to have had poAvcr to render a particular judgment by reference to its record. We only say that, in Ex parte Watkins, the Supreme Court of the United States refused to look at the indictment, because the Circuit Court Avas to be treated as a superior court, Avitli jurisdiction of all crimes.
In other cases, it has been held broadly by the Supreme Court of the United States, that the District as Avell as the Circuit Courts of the United States are not inferior courts. (Hurd on Habeas Corpus, 365.) It is apparent that decisions, Avith reference to the conclusive presumptions arising from the
There is no certain test by which to determine in all cases to which class, (superior or inferior) any given court belongs. (Hurd on Habeas Corpus, 364.) It is not remarkable, therefore, that there has been some diversity in the application of the rule, as to the presumptions, to particular courts. In Hew York, the “ Surrogate Court ” is held to be “ inferior,” but in Pennsylvania, Maryland, and Alabama, the “ Orphan’s Court,” and in Arkansas the “ Probate Court,” are held to be “ superior.” In Hew York the General Sessions of the Peace in the several counties are held to be “ inferior,” while in Pennsylvania, Vermont, and Connecticut, a Justice’s Court is under the rule said to be “ superior.” The question seems to have resolved itself into one of public policy, and whether the particular court of the limited jurisdiction ought to have extended to its judgment the sanctity of the presumptions arising from the adjudications of tribunals of general common-law jurisdiction. That the underlying and controlling principle upon which the question must be decided is simply a consideration of correct public policy, is indicated by the language employed by the Supreme Court of Vermont in Wright v. Hazen, 24 Vt. 143. The Court there says: “ We are aware that the decisions in Hew York, and probably
This Court has never extended the rule as to presumptions in favor of the judgments of courts of general jurisdiction, to courts of justices of the peace in California. On the contrary, such courts, in this State, have uniformly been treated as “ inferior courts, in favor of whose jurisdiction nothing could be assumed. (12 Cal. 283; 23 id. 401; 33 id. 318; 34 id. 321.) And prior to the adoption of the amendments of 1862 to the Constitution of 1849, and the Act of April 20th, 1863, the Probate Courts in California were always considered as of inferior and limited jurisdiction, to whose “records, orders, judgments, and decrees ” were accorded none of the legal presumptions given to those of District Courts in the exercise of their more general jurisdiction. (Pryor v. Downey, 50 Cal. 388.) So far, then, as analogous decisions of this Court have gone, it would seem that the Police Court should be treated as an inferior court. It would be strange if, while holding the judgments of justices of the peace, in criminal cases, not to carry with them the presumptions accorded the judgments of superior courts, we should determine that those of the Police Court, exercising a jurisdiction, in so far as legislative enactments are concerned, substantially the same, are to be treated as if rendered by a court of general jurisdiction. There are reasons peculiarly applicable to municipal courts which would render it proper that they should be held to be inferior courts. The primary design of municipal courts, so far as they act under city by-laws, is to prevent disorder in matters of local convenience, to regulate public and gwast-public casements, etc. As was said by Campbell, J., in Jackson v. People, 9th Mich. 111: “The Constitution, in apportioning the judicial power, as well as affirming the immunity of life, liberty, and property, has always
It is not necessary to say that habeas corpus may be resorted to whenever certiorari may be, but the jurisdiction employed by the superior courts, by means of certiorari, strongly indicates the jealousy entertained of possible excess of authority on the part of municipal tribunals administering by-laws or “ prudential regulations ” not extending beyond the limits of the municipality. The Constitution does not require the Legislature to provide for an appeal from the judgments of the Police Court to the Superior Court, and it would seem that every consideration of sound policy requires of us to treat the former court as an inferior tribunal, the record of whose proceedings should affirmatively establish its power to pronounce a particular judgment.
The Charter of San Francisco (Consolidation Act, Stat. 1861, p. 552) provides:
“ Section 74. The Board of Supervisors shall have further power by order or regulation. * * Eleventh—To determine the fines, forfeitures, and penalties, that shall be incurred for the breach of the regulations established by said Board of Supervisors, and also for a violation of the provisions of this act when no penalty is affixed thereto or provided by law. But no penalty to be imposed shall exceed the amount or value of $1,000, or six months’ imprisonment, or both. * * (Chap. 5.)
“ The Board of Supervisors of the City and County of San Francisco shall have power by regulations or order * * * Third—To prohibit and suppress, or exclude from certain limits, all houses of ill-fame; * * to prohibit and suppress, or exclude from certain limits, or to regulate, all occupations, * * exhibitions, and practices, which are against good morals, contrary to public order and decency, or dangerous to the public safety.” (Stat. 1863, § 1, subd. 3, p. 543.)
“ Any persons violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and be punished by a fine of not exceeding $1,000, or imprisonment not to exceed six months, or by both such fine and imprisonment.”
And § 28 of said chap. 3 provides: * * “No person shall * * 2. Utter in the hearing of two or more persons any bawdy, lewd, obscene, or profane language, words, or epithets. 3. Address to another, or utter in the presence of another, any words, language, or expression, having a tendency to create a breach of the peace.”
We shall assume for the purposes of this decision—without admitting the law so to be—first, that we ought not to inquire on habeas corpus, with a view to petitioner’s discharge, whether the sections of the charter above cited authorized the Board of Supervisors to adopt the Orders 697 and 1,196 ; second, that we ought not to inquire, except for a limited purpose, whether the ordinance is “ reasonable,” and one which a municipal government may enforce; third, that we cannot inquire on habeas corpus whether the Orders 697 and 1,196 were properly published prior to their passage, inasmuch as they are verified by the signatures of the Mayor and Clerk of the Board.
It is not to be presumed that a court of general jurisdiction —or one which the law treats as such—has, in any case, proceeded to adjudge upon matters over which it had no authority. On the other hand, no such intendment is made in favor of the judgment of a court of limited jurisdiction—an “ inferior court ” —but the recitals contained in the minutes of the proceedings must be sufficient to show that the case was one “ which the law permitted the court to take cognizance of, and that the parties were subjected to its jurisdiction by proper process.” (Cases cited in note 1, p. 407, Cooley’s Const. Lim.) If indeed the proceedings show that an inferior court has found the existence of a fact on which the right to proceed depends, and, by the constitution of the court, the existence of the fact is a matter placed within the jurisdiction of the court for determination, the adjudication of the inferior court that the facts exist is conclusive. As stated by Mr. Justice Cooley—after he has laid
We have assumed that the existence of the ordinances which, as claimed, gave the Police Court the appropriate jurisdiction, and the publication thereof—supposing the publication to bo inquirable into by any court—were matters to be ascertained by the Police Court, and that, on habeas corpus, we ought not to go behind the finding of the Police Court with respect to such matters. We also assume that the orders or ordinances referred to were proven. We are not called on, therefore, to re-examine the evidence with respect to any fact passed upon by the Police Court.
The records of the Court show that two complaints were made against the petitioner. The first charged him with having uttered, in the bearing of others, bawdy, obscene, and profane language. That charge was dismissed.
As we have seen, nothing is to be presumed, in the first instance, in favor of the judgment of the Police Court. If the record does not show, upon its face, the facts necessary to give the Court jurisdiction, they will be presumed not to have existed. But this presumption (except in California, as to such jurisdictional matters as the law requires to be reduced to writing) may be rebutted, and the jurisdictional facts established by extrinsic evidence. (Hurd on Habeas Corpus, 367.) We have assumed that the fact of the existence of the ordinances which, as was supposed, gave the Police Court jurisdiction, must be presumed to have been established to the satisfaction of that Court, and, for the purposes of this case, the presumption will be held to be conclusive. But the Police Court could not give itself jurisdiction by its construction of an ordinance, when the very question
Inasmuch as no presumptions are to be indulged in favor of the judgments of inferior courts, and as this Court will take judicial notice that the facts set forth in the complaint constitute no crime under the general laws of the State, the record of the proceedings in the Police Court should manifest that the petitioner was there prosecuted for an alleged violation of some city ordinance. Either the complaint sufficiently refers to, and so makes part of itself, Orders 697 and 1,196, or it does not. If it does not, there is nothing in the proceedings of the Police Court which show that the petitioner was tried for any offense of which that Court has jurisdiction. We shall assume, however, (as against petitioner) that Orders 697 and 1,196 suffi
As we have seen already, the charge of uttering obscene and profane language was dismissed; it only remains to inquire ■whether the other complaint charged the crime created by the third subdivision of § 28 of chap. 3 of Order 1,196; since, if it did not charge that crime, it is plain it charged none within the jurisdiction of the Police Court.
The subdivision declares that no person shall “ address to another or utter in the presence of another any words, language, or expressions having a tendency to create a breach of the peace.” We shall not inquire, in this place, how it accords with constitutional law or the policy of our general legislation, to place' the power in the hands of a judge or jury to decide that “ any words ”—to others, perhaps, apparently innocent— which they may think objectionable, have a tendency to create a breach of the peace. That the language charged in the particular instance now before us was not only indecorous, but in the highest degree indecent, cannot affect the question. The next conviction may be for the use of words less offensive, and the attempted definition of the crime sought to be created by the ordinance is so uncertain, as would leave it to the varied judgments or tastes of successive juries to find defendants guilty or not guilty of a crime for the use of exactly the same language. It may be that the Legislature might declare slander to be a crime, or might authorize a municipal board so to declare. If this were done, however, it can hardly be doubted that the constitutional provisions in respect to libel would apply. The question whether the words spoken were slanderous would be a question for the jury, and the defendant would be allowed to prove, if he could, that the words spoken were true, and that they were spoken for justifiable ends. The provision of the ordinance on which (as is claimed) petitioner was convicted, does not require that words shall be slanderous, and does not permit the defendant to prove either the truth or justifiable intent. Libel is distinguished from slander in that it is supposed to be more deliberate. The freedom of the press is surrounded by many constitutional safeguards. Can a Legislature—a fortiori,
The foregoing will suggest some of the evil consequences which might ensue were we to give the construction contended for by counsel to the third subdivision of section 28 of the chapter, and hold that it covers the case of one who may have used words having a tendency to excite the wrath—in case he should ever hear of them—of a person of whom the words were spoken, although such person may not have been present when the words were spoken, nor may ever have heard them recited. We cannot too often repeat that the alleged circumstances of this particular case should not be appealed to as requiring of the Courts to attribute a forced meaning to the ordinance. It may be admitted, for the purpose of this argument, that the language alleged to have been employed by the petitioner conveyed a vile and perfectly unwarrantable assault upon the character of an honorable man. But it is only when an offense particularly aggravating against morals or justice has been committed, that a temptation arises to distort the law, to expand the meaning of words beyond their plain purport, to give to a penal statute an effect not intended by those who framed it nor required by its language, that we may bring within its scope, and subject to condign punishment, those whom we believe deserve the severest penalties. At such times, if ever, we forget that the worst as well as the best of men is entitled to the protection of the Constitution, and that a ^trained interpretation of the law which deprives a bad man of his right to personal liberty to-day, may to-morrow deprive a good man of his equally sacred—in the eyes of some of us perhaps more sacred—rights to property.
To constitute the offense, the words must either be addressed to, or spoken in the presence of, the person whom they have a tendency to incite to a breach of the peace, or, on the other hand, they arc punishable if spoken anywhere, or addressed to
Such an interpretation of the orders would revive a kind of judicial investigation for which there have been no precedents in this country, and none in England since the reign of Edward the Fourth, when a citizen of London was hanged, who had said he would make his son an heir of the 66 crown,” the sign of the house in which he lived; and a gentleman, whose favorite buck the king had killed in hunting, was decapitated because he had wished it, horns and all, in his belly, that counseled the king to it. (1 Hale’s P. C. 115.) To say that a prosecution, such as has been mentioned, may be maintained by virtue of an ordinance, the sole authority to pass which is'' found in the city charter above cited, by which the Supervisors are empowered to “ regulate all occupations, * * * exhibitions, and practices which are against good morals, contrary to public order, or dan
Municipal by-laws must harmonize with the general laws of the State, with the municipal charter, and with the principles of the common law. (14 Barb. 478; 4 Hill, 209.) They must also be reasonable, and whenever they appear not to be, the Courts will, as matter of law, declare them void. (2 Kyd on Corp. 107.) We have no space to amplify the suggestion, but there is at least grave doubt whether an ordinance which provides a punishment of six months’ imprisonment and SI,000 fine as the penalty for incautious words spoken of an absent person, at the breakfast table, (which may arbitrarily be considered by a jury as having a tendency to create a breach of the peace) would be “ reasonable,” or held to be authorized under a general grant of power to the Supervisors to prohibit or regulate practices “ against good morals, or contrary to public order, or dangerous to the public peace.” That such an ordinance would not accord with our governing policy is further evidenced, perhaps, by the circumstance that no like prohibitory legislation has ever been attempted in this or other States.
We have assumed, for the purpose of this decision, (although the contrary course, the precise objection not being made, has been repeatedly pursued by the Court, as also in the United States Courts—notably in Parrott’s and other recent cases) that the invalidity of the Orders 197 and 1,196 ought not to be determined in this proceeding, and made the ground for petitioner’s discharge. We have assumed—for the purposes of this decision only—that here, on habeas corpus, the Police Court will be presumed to have adjudged the order valid, and that its judgment in that regard is to be treated as final. But in ascertaining the meaning of the portion of the Order 1,196, on which the judgment against the petitioner is based, we may very properly consider the circumstance, that if the language, supposing it be ambiguous, be construed in one way, it does not necessarily conflict with the municipal charter or with the common or statutory law ; while, if it be construed in another manner, it is either clearly repugnant to all these, or leaves the judicial mind with grave doubts whether it contravenes State legislation, or im
We have so far considered subdivision 3 of § 28 as if its language would admit of two interpretations. But we are unable to discover any ambiguity in it. It declares, no person shall “ address to another, or utter in the presence of another, any words * * * having a tendency to create a breach of the peace.” If the second clause of the sentence had been omitted, and the subdivision had read, “ address to another any words * * * having a tendency,” etc., could anybody have doubted what it was intended to prohibit ? There could have been no hesitation in declaring that the words must be such as to have a tendency to produce a breach of the peace on the part of the person to whom they are addressed. There is nothing in the language, “ or utter in the presence of another,” which can enlarge the scope of the intended prohibition. “ Ho person shall address to or utter in the presence of another person words having a tendency to induce such other person to commit a breach of the peace.” Is not this a simple paraphrase of the language of the ordinance ? Either this truly represents the meaning, or, as we have seen, the subdivision prohibits the utterance of words which can be construed as having a certain tendency— in private, to the smallest audience, and in the absence of the only person who would have reason to be offended by them— a construction which might be supposed grievously to interfere with the inalienable privileges of certain coteries. It is certain that the ordinance does not require that more than two persons should be present when the words are spoken. If it had been intended to punish the denunciation of absent individuals dt public assemblages, it would seem that language would have been employed somewhat like that of the Act of January 19th, 1878, (which was repealed at the next session of the Legislature) : “ Any person who, in the presence of twenty-five or more persons, shall utter any language with intent to incite * •* * to any acts of violence,” etc. Certainly, if the purpose had been to prevent appeals to a riotous mob, such as were calculated not only to incite those present to violence, but also to lead to breaches of the peace on the part of absent persons de
The portion of the ordinance so often referred to provides a penalty for him who shall provoke an assault upon himself “ by addressing to another person, or uttering in the presence of another person, words * * * having a tendency to create a breach of the peace.”
The judgment of the Police Court, separate from the extraneous recitals which constitute no part of it, is simply, “ It is ordered and adjudged that *' * Denis Kearny pay a fine of $1,000, and be imprisoned in the House of Correction of the city and county for six months.” Does the record of the proceedings of the Police Court show that the Court had jurisdiction to render this judgment ? The case is unembarrassed by another question, since no oral evidence was offered to establish that he was in fact tried and convicted for the commission of any act other than that charged in the complaint, nor is there any entry in the minutes of the proceedings, in any degree, looking toward a prosecution for the commission of any other act. The complaint charges, that at a certain date, in San Francisco, the petitioner “ did willfully and unlawfully utter and address to others, to wit, to a large number of persons then and there assembled, 'to wit, 100 and more persons whose names are unknown to deponent, certain profane words and language, which words and language then and there had a tendency to create a breach of the peace.” Then follows a recital of the words alleged to have been spoken. There is no averment that the words were “ addressed to or uttered in the presence of ” the person of whom they were spoken. But that the words are addressed to or uttered in the presence of the person with respect to whom they
This is not the case of a complaint inartificially drawn, which intimates the existence of the facts necessary to the constitution of the offense, or even of an attempted statement, insufficient, but indicating a purpose to declare on the essential facts. It is a total failure to allege any cause of action, and, however objectionable the conduct imputed to the petitioner, he is no more, in the eye of the law, charged by the complaint with any crime, than if the paper had ascribed to him the most innocent of deeds. If Denis Kearny was legally convicted under the ordinance by reason of his denunciation of a person in his absence, then each one of those who have employed similar (though sometimes less profane) language in respect to Denis Kearny, he not being present, may be imprisoned and fined by the Police Court.
It would seem that criminal actions in the Police Court must he commenced by complaint in writing, (Penal Code, § 1426) and that the Court is required to keep a docket in which must be entered each action and the proceedings therein. (Penal Code, § 1428.) As to the jurisdictional facts which the law directs to be set forth on the records of that Court, they must be apparent on the face of the proceedings, or its judgment is void. (Jolley v. Foltz, 34 Cal. 321.) If, however, it should even be admitted that it might be established by proof aliunde that the petitioner was tried and convicted of an offense of which the-inferior court had jurisdiction, no evidence of any kind to establish that fact has been produced.
Inasmuch as it affirmatively appears from the record of the • proceedings that the petitioner was tried and sentenced to be punished for the commission of an act which is and under the existing laws can be no crime, the judgment of the Police Court
It is so ordered.
McKee, J., Sharpstein, J., and Ross, J., concurred.
Concurrence Opinion
I concur in the reasoning and the result reached in the opinion signed by my brethren, McKinstry and others. In doing so I desire to add that I do not wish to be considered as concluded by anything contained in that opinion, as to a judgment or sentence of any court of criminal jurisdiction known to the Constitution and laws of this State. I am strongly inclined to the opinion that the same result must be reached upon a so-called judgment of any of the Superior Courts, when there is nothing in the shape of law to maintain the judgment. It must be remembered that we have no criminal common law. All our public offenses or crimes are statutory. Unless a statute exists making an act a crime or a public offense, (see Penal Code, § 6) no one can be adjudged to suffer punishment for the commission of it, however heinous it may be when tested according to the ordinary criterion of public duty or public obligation. To hold that any court of criminal jurisdiction can adjudge an act, not a public offense by statute, deserving of punishment and sentence, and commit to prison or fine for the commission of such an act, which, in such a condition of the law, is innocent, and that the person so sentenced could not be relieved from it on habeas corpus, would be, it seems to me, to hold that the court is invested not only with judicial, but with legislative power—that the court can make the law, create the offense, and adjudge a prisoner guilty of having committed it. The court in such a case "would have no jurisdiction; as was said by the learned Judge who wrote the opinion in Corryell’s case (22 Cal. p. 181) : “The court derives its jurisdiction from the law, and its jurisdiction extends to such matters as the law declares criminal, and none other, and when it undertakes to imprison for an offense to which no criminality is attached, it acts beyond its jurisdiction.” Such cases, it is evident, must be of rare occurrence. They are the offspring of peculiar circumstances, which happen inf re
However, the question is not before us for decision, and these few observations are intended to preclude a conclusion which might possibly be drawn from the opinion of the Court, and to state the point without deciding it.
Myrick, J.: I find myself unable to concur in the conclusions reached by my associates.
Morrison, C. J.: I dissent.
