Bishop v. City of Oakland

Thornton, J.: This is an appeal prosecuted by defendant from a judgment in an application for a writ of mandamus, commanding the defendant to furnish the plaintiff with a proper office in which to hold his Court as a Justice of the Peace of the City of Oakland, and from an order denying a new trial in the same proceeding.

Various constitutional questions are made in the brief filed on behalf of the appellant, which were all considered and passed on in the case of the People ex rel. Pennie v. Ransom, supra, 558. We consider these questions as settled by that decision, and that they are no longer open for examination in this Court.

It is contended on behalf of the appellant that the law requires a Justice of the Peace to be elected—not appointed. This is clearly so. But as the plaintiff was elected we can not see how the question arises. His election was held under ' a valid law, general and uniform in its operation, enacted April 1st, 1880, to pass which ample power is vested in the Legislature by the Constitution. (See art. vi, § 11.)

By section 103 of the Code of Civil Procedure, as enacted in the statute just referred to, it is provided that “ in every city having twenty thousand and not more than one hundred thousand inhabitants, two Justices of the Peace” are to be elected by the electors of such cities respectively. This provision is not local or special because confined to cities having twenty thousand and up to one hundred thousand inhabitants. It applies to all cities of that class, and the power of classification is conferred by the grant of power in the section of the Constitution above cited, where the Legislature is vested with authority to determine the number of Justices of the Peace in each of the political divisions of the State mentioned in it, among which political divisions cities are included. We find nothing in article iv of the Constitution of this State which inhibits such legislation.

It appears from the findings that the City of Oakland was duly incorporated by an act of the Legislature, approved March 25th, 1854, and has been and was a municipal corporation when the judgment in this case was rendered; that it [575]had at the time of the approval of the act of the Legislature above referred to, approved April 1st, 1880, and ever since has had, a population of more than twenty thousand and less than one hundred thousand inhabitants; that plaintiff was legally elected at the general election in 1880 as a Justice of the Peace of the City of Oakland, received his certificate of election in accordance with law, has properly qualified as such Justice, and was acting as such when this proceeding was commenced.