In re Oliverez

Norton, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

Carlos Oliverez is imprisoned in the jail of the county of San Francisco, under a sentence pronounced by the Court of Sessions of that county, on the ninth day of December, 1862, and claims his release upon an allegation that at the time said sentence was pronounced there was no such tribunal as the Court of Sessions existing in said county.

In support of this allegation he insists that the amendments to the Constitution submitted to the people at the last election went into operation on the fourth day of November last, being the date of the proclamation issued by the Governor, announcing the fact that a majority of the votes cast upon the question of such amendments were in favor of the amendments; and that the Court'of Sessions ceased to exist when the former provisions of the Constitution under which it was organized were displaced by the new, which do not provide for a continuation of that Court.

Article six of the amendments provides for the organization of new Courts, and the election of Judges for them at a special election to be provided by law; and section nineteen of that article provides that by the taking effect of the amendments no officer shall be superseded, nor shall the organization of the several Courts be changed until the election and qualification of the several officers [417]provided for in said amendments. The effect of this provision of section nineteen is to continue the Court of Sessions as an organized Court, and to continue the officers by which it is held until the organization of the Court by which it is to be superseded. The Court undoubtedly continues to exist.

But it is further urged, that though the Court of Sessions may be continued as an organized tribunal it is without any jurisdiction, because by section one of article six of the amended Constitution the judicial power of the State is vested in certain specified Courts, among which the Court of Sessions is not named.

If such an interpretation should be adopted it would have the effect to deprive the nineteenth section of any practical meaning or operation. It would be doing merely a vain thing to continue the organization of the Courts if they could exercise no jurisdiction. It would also suspend the operation of all the criminal laws of the State which are now administered by the Court of Sessions until the new Courts shall be organized, because under existing laws no other Court is authorized to administer them. Indeed, an interpretation of the amended Constitution which should immediately deprive the Court of Sessions of all jurisdiction, would equally deprive all the other Courts now existing in the State of all jurisdiction, because the Courts spoken of in the first section of article six, in which the judicial power of the State is to be vested, are not the Courts now in existence, but those which are to be organized, under the amended Constitution, and the succeeding sections provide for the future organization of those Courts by the election of Judges at a special election to be hereafter provided by law. But these Courts to be hereafter organized are not the Courts now existing, although similar in name and in their general powers. If they were to be organized in precisely the same manner they would not be the same Courts, but in fact they are to be essentially different in them organization, and them functions are to be in many particulars different. If, then, the existing Courts cannot exercise any jurisdiction which was conferred upon them by the old Constitution, the operation of the whole judicial system is for the time suspended. It is hardly necessary to say that the Legislature in proposing and the people in adopting the amendments could not have intended