Ex parte Ah You

The Court. This is a proceeding upon habeas corpus. The facts out of which the case arises are stipulated as follows: — “ 1. That on the fourteenth day of February, 1889, a charter (framed and adopted in accordance with constitutional amendment No. 16, approved March 10, 1887, — 340 — statutes of 1887, page 88) became and ever since has been and now is the organic law of the city of Oakland. “2. That at a municipal election duly and regularly h eld in the city of Oakland, under the provisions of said charter, one Alexander Laidlaw received certain votes, being a majority of all the votes cast for police judge, was thereafter by the municipal council of the said city of Oakland declared elected police judge of the police court provided for in said charter. Thereupon the said Alexander Laidlaw filed a bond as such police judge, as required by the said charter, took the oath of office, and has ever since been and now claims to be the police judge of the police court provided for in said charter. “3. That on the twenty-fourth day of July, 1889, the said Ah You was brought before the said police court, so as aforesaid created and organized, and before the said Alexander Laidlaw, so as aforesaid claiming to be judge thereof, and was by said, court and judge tried and convicted of a misdemeanor, and thereafter, on the said twenty-sixth day of July, 1889, was, by the said court, and by the said judge thereof, sentenced to imprisonment in the city jail of the said city of Oakland for the period of six months, and adjudged to pay a fine of five hundred dollars, and under commitment issued from said court by said judge thereof was and is imprisoned in said city jail. “4. That said police court, and said judge thereof, derive whatever of power, jurisdiction, or authority they or either or both of them possess solely or wholely from and pursuant to the provisions of the said charter of the said city of Oakland. “5. That said police court, established, organized, existing, and set in operation under and in pursuance of the provisions of said charter, is not a police court provided for or existing and in pursuance of the general act of March 18, 1885; and said Alexander Laidlaw, the police judge aforesaid, is not now, and never has been, either a — 341 — judge de jure or de facto of any police court established or organized under and in pursuance of said act of March 18, 1885, in said city of Oakland. ” These being the facts, the only question to be decided is, whether the police court established by the freeholders’ charter of the city of Oakland (see appendix to Stats. 1869, p. 535) has a legal existence. If it has no legal existence, it is conceded that its judgment is void, and that the petitioner must be discharged. The city of Oakland was a municipal corporation prior to the adoption of the constitution of 1879. It had a police court established by act of March 10,1866. (Stats. 1865-66, p. 193.) Section 6 of article 11 of the constitution of 1879 is as follows: — “Corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization, and classification, in proportion to population, of cities and towns, which laws may be altered, amended, or repealed. Cities and towns heretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall so determine, and shall organize in conformity therewith; and cities or towms heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, shall be subject to and controlled by general laws.” March 18, 1885, the legislature passed an act entitled “ An act to provide for police courts in cities having thirty thousand and under one hundred thousand inhabitants, and to provide for officers thereof.” (Stats. 1885, p. 213.) By this act it was provided that one of the city justices, to be designated by the mayor, should be the judge of the police court, and the powers and the jurisdiction of the court were prescribed and regulated. Notwithstanding the passage of this act, a police judge — 342 — (Daniels) was elected under the provisions of the act of 1866, and he assumed and undertook to exercise the duties of the office upon the theory that the act of 1885 was unconstitutional, or if constitutional, that it did not supersede the act of 1866, that act being, as it was contended, a part of the old city charter, and as such exempt from the operation of any special or general law relating to the government of municipal corporations. At the same time one Henshaw claimed to be police judge by virtue of the provisions of the act of 1885. In this state of the case, an action, entitled People ex rel. Daniels v. Henshaw, was instituted for the purpose of testing the right to the office, wherein it was held by this court (76 Cal. 436) that the act of 1885 was a general law, was in all respects constitutional, that it repealed the act of 1866, and in so far superseded the old charter of the city of Oakland. If that case was correctly decided,— if the old charter was superseded by the law of 1885,—there can be no question that the freeholders’ charter since adopted is also subject to the same act. The last clause of section 6 of article 11 of the constitution will admit of no other construction. “ Cities and towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, shall be subject to and controlled by general laws.” The freeholders’ charter of Oakland was “framed and adopted by authority of this constitution ” (art. 11, sec. 8, as amended), and is not only subject to and controlled by general laws, “according to the express terms of section 6 of article 11, but was also required by the section (8), in pursuance of which it was framed, to be consistent with and subject to the constitution and laws of this state.” There is, therefore, no escape from the conclusion that if the old charter was superseded by the act of 1885 the new charter is subject to and controlled by it, and the — 343 — police court which the freeholders’ charter attempted to establish must be held to have no legal existence unless we are prepared to squarely overrule the decision in People v. Henshaw, supra. This is conceded by counsel for respondent, and we are asked to review and reverse that decision. The court, however, has decided to abide by the conclusions there announced, for the reasons and upon the considerations there stated. It follows that the prisoner must be discharged, and it is so ordered.