People v. Toal

Works, J. The appellant was convicted in the court below of an assault to commit murder. From the judgment, and an order denying him a new trial, he appeals. [334]The judgment was reversed by this court (People v. Toal, 23 Pac. Rep. 203), and a rehearing granted. It was urged upon us in the petition for a rehearing that the effect of the decision was to oust the police judges of the city of Los Angeles from office without a hearing. Upon the second hearing, the police judges, as well as the attorneys in the case, and at least one amicus curise, were allowed to be heard, orally and by printed briefs, and the subject seems to have been thoroughly exhausted. There are hut two questions presented for our consideration by this second presentation of the case, viz.: 1. Was the police court of the city of Los Angeles attempted to be established by the new freeholders' charter of said city a valid and existing court at the time the judge, or pretended judge, thereof committed the appellant fortrial? 2. Can the question of the validity of said court be presented by the appellant in this way, or must the same be raised by a direct proceeding for that purpose? The point is made by the respondent that this court has already determined the first of these questions in the affirmative in the two cases of Brooks v. Fischer, 79 Cal. 173, and Ex parte Strand, 21 Pac. Rep. 654. But the question now before us was neither presented nor considered in either of those cases. Brooks v. Fischer was brought to determine the general question whether or not the charter of the city was legally adopted. There was some doubt in the minds of counsel having that matter in charge whether the course taken in Brooks v. Fischer was the proper one to raise the question, and for that reason the application in Ex parte Strand was made for the sole purpose of raising the same question, and none other was presented. This court regarded the remedy pursued in the former of these cases as the proper one, and decided the question raised in that case. Therefore Ex parte Strand was decided as presenting the same point, and the writ in that case was denied on the authority of the former one,' and without further consideration. [335]And in Brooks v. Fischer, we were careful to say, in effect, that we were simply passing upon the general question as to the proper manner of adopting the charter, and not upon the question as to the validity of any of its provisions. Thus it was said: “It is contended by the petitioner that certain provisions of the charter are inconsistent with existing general laws, and particularly that it is in conflict with the general law with reference to the improvement of streets. It may be that certain of its provisions are inconsistent with present laws, and that so far it cannot be effective as against such laws, but this is a matter that it is unnecessary for us to determine. It is enough to say that the whole charter cannot be held to be invalid because of the fact that a few of its provisions may conflict with general statutes now in force.” It must be seen, therefore, that nothing was decided in either of the cases referred to which precludes us, as an authority in point, or otherwise, from determining the question now before us, which is, whether one of the provisions of the charter is invalid as in conflict with existing laws. These cases decided that the charter of Los Angeles, as a whole, was adopted in the proper manner, and nothing more.