Ex parte Sparks ( 1898 )

McFARLAND, J., dissenting.

I am not able to concur with my associates, although I confess that the case, owing to careless legislation, is one difficult of solution, and that the position taken by the majority of the court is a strong one. The case of People v. Toal, 85 Cal. 333, was decided in 1890, but no attention was apparently given to it in the Sacramento freeholders’ charter, which was adopted three years afterward. Still, as under the constitution as it then stood, a freeholders’ charter, approved by a mere concurrent resolution and not by a law, could not create a court, or deal in any way with the judiciary, I think it would not be an unwarrantable construction to hold that the charter of 1893 did not abolish the former police court which had been established and fixed by law under sections 1 and 13 of article VI of the constitution; and I think that such construction, if at all admissible, should prevail in the interest of public justice. It is warrantable, I think, to hold that the provision of the constitution that a freeholders’ charter shall “supersede any existing charter” applies only to those matters which may be provided for in a freeholders’ charter, and not to courts which cannot be created or provided for in such charter. The existing police court of Sacramento was a court established by law, and the fact that the law creating it was enacted in the statute which also created a charter for the city makes no difference. The freeholders’ charter did not abolish that court, and could not have done so, because any dealing with the judiciary was entirely outside the scope of such charter. The question, therefore, is not as to the power of the people of Sacramento to continue an existing court, but as to their power to abolish an existing court duly established by law.

To avoid future embarrassments it is to be hoped that freeholders’ charters may be changed, under the recent constitutional amendment, so as to provide for police courts; or that a general statute may be enacted prescribing the jurisdiction of all justices of the peace and police courts. Under such a general law, a police court could, in my opinion, be established in any city by special law. The power to establish such a court is expressly given by section 1 of article VI of the constitution, while section 25 of article IV, so far as it relates to this subject, prohibits special or local laws only in the matter of “regulating the jurisdiction and duties” of such courts. Some attempt seems to have been made to pass such a law as is above suggested in the act “fixing the jurisdiction,” etc., approved March 9, 1883 (Stats. 1883, p. 63); but its scope is not wide enough to accomplish the suggested purpose.

.Van Fleet, J., concurred.