5 P.2d 605 | Cal. | 1931
Milton Page was proceeded against by complaint filed in the municipal court in and for the city of Los Angeles upon the charge of having violated section 2a of Ordinance No. 16259 (N.S.) of said city, prohibiting the publication, distribution, sale or giving away of tips or other information upon or concerning horse-races or upon or concerning betting upon horse-races. Upon his trial he was adjudged guilty and was imprisoned upon said judgment. He appealed to the appellate department of the Superior Court in and for the City of Los Angeles, but after a hearing therein the superior court affirmed the judgment of the trial court. A petition for rehearing *352
was denied; whereupon he petitioned the District Court of Appeal in and for the Second Appellate District for a writ of habeascorpus, contending that said ordinance, and more particularly section 2a thereof, was unconstitutional and void, and that he was, therefore, illegally restrained of his liberty. The District Court of Appeal issued said writ and after a hearing thereon granted the defendant's petition, holding the ordinance and the requirements thereof to be void, and thereupon made its decision and order discharging the defendant from custody. The People through the attorney-general filed a petition for rehearing before said District Court of Appeal, but which court, though allowing the petition for rehearing to be filed, dismissed the same upon the ground that the judgment was final and that no petition for rehearing was provided for by law in such a proceeding. Thereupon the People, through the attorney-general, applied to this court for a hearing after decision by the District Court of Appeal, basing the right so to do primarily upon the provisions of section
The first question presented for our determination is as to whether or not the provisions of section
[4] It is further, however, contended on behalf of the People that this court should entertain this proceeding under the broad provisions of article VI, sections 4, 4a, 4b and 4c of the state Constitution. Section 4 of article VI of the Constitution defining the appellate jurisdiction of the Supreme Court of California formed a part of the Constitution as adopted in 1879. It was, however, amended in 1904 (see Stats. 1905, p. xxxiv), at the time of the creation of our system of District Courts of Appeal, and as so amended it proceeded in part to provide that "the said court shall also have appellate jurisdiction in all cases, matters and proceedings pending before a District Court of Appeal which shall be ordered by the Supreme Court *355
to be transferred to itself for hearing and decision as hereinafter provided. The said court shall also have power to issue writs of mandamus, certiorari, prohibition and habeascorpus, and all other writs necessary or proper to the complete exercise of its appellate jurisdiction." By section 4b of said article, as thus amended, the District Courts of Appeal were provided for and their jurisdiction defined, and it was therein declared that "The said courts shall have power to issue writs ofmandamus, certiorari prohibition and habeas corpus, and all other writs necessary or proper to the complete exercise of their appellate jurisdiction." In 1928 the foregoing provisions of the Constitution were revised and section 4c was added to said article, which repeated the phraseology of said article in its original form, and proceeded again to state that "The Supreme Court shall have power to order any cause pending before the Supreme Court to be heard and determined by a District Court of Appeal and order any cause pending before a District Court of Appeal to be heard and determined by the Supreme Court. The order last mentioned may be made before judgment has been pronounced by a District Court of Appeal, or within fifteen days in criminal cases or thirty days in all other cases after such judgment shall have become final therein. The judgment of the District Courts of Appeal shall become final therein upon the expiration of fifteen days in criminal cases or thirty days in all other cases after the same shall have been pronounced. The Supreme Court shall have power to order causes pending before a District Court of Appeal for one district to be transferred to the District Court of Appeal for another district, or from one division thereof to another, for hearing and decision." The foregoing provisions of the state Constitution, as originally enacted, came before the Supreme Court of this state for interpretation in Matter ofZany,
In harmony with these conclusions it is, therefore, ordered that the proceeding for a hearing herein before this court, after decision by the District Court of Appeal discharging the defendant, should be and the same is hereby dismissed.
Shenk, J., Seawell, J., Curtis, J., Preston, J., Langdon, J., and Waste, C.J., concurred.