Robert v. Police Court of S.F.

LORIGAN, J.

This is a proceeding in prohibition, to restrain the respondents from proceeding to try the petitioner in the police court of the city and county of San Francisco before a jury upon a charge of criminal libel, the question involved being whether, under the freeholders’ charter of said city and county, the police court thereof has jurisdiction to try (not to hold a preliminary examination in) a prosecution for such an offense.

It is insisted by the petitioner that the police court has been invested with no such jurisdiction, and that a trial for the offense with which he is charged can only be had before the superior court. There can be no question but that under section 5 of article VI of the constitution, conferring jurisdiction upon the superior court in all cases of felony “and cases of misdemeanor not otherwise provided for,” the trial of misdemeanors, of the class to which the offense of libel belongs, has up to the present time been had exclusively before

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the superior court under such constitutional provision. Offenses of this class are popularly known as "high misdemeanors,” so designated because, as the legislature had made no provision for their trial by any inferior court, they are required, under the constitutional provision, to be tried in the superior court. And under such constitutional provision they must still be exclusively tried there, unless their prosecution in some other court is otherwise provided for.

(Green

v.

Superior Court,

78 Cal. 556, [21 Pac. 307, 541].)

Such provision, it is insisted by respondents, has now been made and exclusive jurisdiction conferred upon the police court of the city and county of San Francisco to try all misdemeanors of which the superior court theretofore had jurisdiction. They base this claim upon the provisions of the freeholders’ charter of the city and county of San Francisco, which defines the jurisdiction of the police court thereof, under power conferred by the constitution which it is contended authorized it to be done. Section 8% of article XI of the constitution, which is relied on as conferring this power, in as far as its provisions are presently involved, declares that "It shall be competent in all charters framed under the authority given by section 8 of article XI of this constitution, to provide, in addition to those provisions allowable by this constitution and by the laws of the state, as follows: First, for the constitution, regulation, government and jurisdiction of police courts ...” The clause in the freeholders’ charter, under which it is claimed jurisdiction was conferred upon the police court under the constitutional provision, is as follows: "Section 2. The police court of the city and county of San Francisco shall have: First. Exclusive jurisdiction of all prosecutions for the violation of ordinances of the board of supervisors. . Second. Concurrent jurisdiction with the superior court of all other misdemeanors and of the examination of all felonies committed in the city and county. Third. Said court or any judge thereof shall have the same powers in all criminal actions, cases, examinations and proceedings as are now or may hereafter be conferred by law upon justices of the peace.” The only provision of section 2 which can be insisted upon as conferring jurisdiction upon the police court to try - the offense with which petitioner is charged is the second subdivision thereof, which purports to