Ex parte Wallingford

Ross, J.; The provisions of law, constitutional as well as statutory, to be considered in this case are very different from those considered in Ex parte McCarthy, 53 Cal. 412, which case arose prior to the adoption of the Constitution of 1879.

The question is, has the Superior Court jurisdiction of the crime of petit larceny? The jurisdiction of that Court is fixed by the Constitution itself.- (§ 5, Art. vi.) With respect to criminal matters, it is given jurisdiction of “ all criminal cases amounting to felony, and cases of misdemeanor, not otherwise provided for.”

Of course the Legislature can not take from the jurisdiction conferred by the Constitution on the Superior Court, except as expressly permitted by the Constitution itself. With respect to misdemeanors, however, the Constitution authorizes the Legislature to take from that jurisdiction; for, as already observed, it gives to the Superior Court jurisdiction in “ cases of misdemeanor not otherwise provided for,” and follows that provision with another—Section 11 of Article vi—giving the Legislature the power to establish Justices’ Courts and to “fix by law the powers, duties, arid responsibilities” thereof; provided, such powers shall not in any case trench upon the jurisdiction of the several Courts of record, except that said Justices shall have concurrent jurisdiction with the Superior Court in certain cases of forci[104]ble entry and detainer, and in certain cases to enforce and foreclose liens on personal property.

It is thus seen that by the express terms of the Constitution, the Legislature is empowered to establish Justices’ Courts, and to confer upon them such powers as to it shall seem proper, provided such powers shall not in any case trench upon the jurisdiction of the several Courts of record, with the exceptions already noticed. The limitation as* to trenching upon the jurisdiction of the several Courts of record obviously refers to the jurisdiction conferred upon those Courts by the Constitution itself. For example, as the Constitution confers upon the Superior Court jurisdiction in all cases of felony, the Legislature could not confer on the Justice’s Court jurisdiction in such a case. But while the Constitution also confers on the Superior Court jurisdiction in cases of misdemeanor, it is of misdemeanors that are not otherwise provided for. When the Legislature, pursuant to the power conferred by Section 11 of Article vi, “ to otherwise provide for” certain, or all misdemeanors, does otherwise provide for certain of them, and confers upon the Justice’s Court jurisdiction in certain cases of misdemeanor, the jurisdiction so conferred becomes exclusive, for they then become eases of misdemeanor “ otherwise provided for,” over which, according to the express language of the Constitution, the Superior Court has no jurisdiction.