People ex rel. Hughes v. Gillespie

By the Court,

Hastings, Ch. J. The relator states that David Gillespie, in violation of the constitution of the state of California and of the charter of the city of San Francisco, has been elected to, and continues to exercise, the office of alderman [343]of said city—that at the time of his election, lie was ineligible to said office by reason of his non-residenco in said state for the term required by law, &c. The superior court seems to have overlooked the first question argued here as to its jurisdiction in cases of proceedings by quo warranto, and proceeded to pass upon the eligibility of the respondent at the time of his election. We do not think that the superior court of the city of San Francisco has any jurisdiction of information by quo warranto. At common law the information lay only in a superior court, namely, in the king’s bench, (4 Cowen, 102,) in this state in the district court. (See act to organize the district court, dec., sec. 8.) In other of the United States, in the superior courts of the state. {See authority above cited.) This writ was denied at the last term of this court in the case of The Attorney General, ex parte, (ante, p. 85,) for the reason that the supreme court of this state possesses no original jurisdiction; and, in that case, it was decided that this proceeding could only be entertained in the district courts of this state, being the courts of the highest original jurisdiction. The superior court of the city of San Francisco is an inferior court. {See constitution of California, Art. 5 ; see Act also, An Act to to establish a municipal court in the city of San Francisco, sec. 1.) By these authorities it will appear that the legislature could not, and did not intend to, create any other than an inferior court. The legislature did not attempt to give jurisdiction by quo war-ranto to this court; if so, the jurisdiction would have been expressly granted. (See act to establish superior court, sections 4 and 13 , and the act to organize the district courts.) It will be seen that the district courts not only possess original jurisdiction in all civil cases, but they are especially authorized to issue, among others, the writ of quo warranto. In the act referred to above, to establish the superior court, the sections enumerating its powers do not specify the proceeding by quo warranto, although some of the extraordinary writs are mentioned. In Commonwealth v. Lancaster, &c., (6 Binney, 5,) it is held that a statute taking any original jurisdiction from the supreme court in all civil cases relates to civil actions, which do not in common language, include writs of mandamus, certiorari,