Milner v. Reibenstein

Fox, J. Application to the superior court of the county of San Joaquin for a writ of mandate requiring the defendants, the mayor and clerk and comptroller of the city of Stockton, to issue a warrant upon the treasury of that city in favor of the plaintiff, who is city justice of the peace in said city, for the sum of one hundred dollars, as and for his salary as judge of the municipal court, for the month of December, 1889. Upon a hearing of the cause the court denied the writ, and entered judgment for defendants, from which plaintiff appeals.

The case is argued and presented as if it involved the question of the legal existence of the municipal court of the city of Stockton, and a reconsideration of the question passed upon in Brooks v. Fischer, 79 Cal. 173, Ex parte Ah You, 82 Cal. 339, and People v. Toal, ante, p. 333. In our judgment no such question is involved.

The sole question in this case is, whether or not the plaintiff, who is regularly drawing and receiving his salary of two thousand dollars per annum, as city justice of the peace, is entitled to draw and receive an additional salary of twelve hundred dollars per annum as judge of the municipal court. In 1884 the city of Stockton, then a municipal corporation under a special charter passed [595]prior to the adoption of the present constitution, reorganized, as a city of the fourth class, under the “ act to provide for the organization, incorporation, and government of municipal corporations,” approved March 13, 1883. (Stats. 1883, pp. 223 et seq.) Of this corporation J. H. Tam was elected police judge, and the plaintiff, Milner, was elected city justice of the peace, each for the term of turn years, commencing January, 1889. On the 2d of March, 1889, a charter, framed and adopted under constitutional amendment No. 6, became and ever since has been the organic law of said city. (Stats. 1889, pp. 578 et seq.)

By the terms of this charter, the police court under the old charter and the court of the city justice of the peace were practically consolidated (see secs. 104-130), under the title of “Judicial Department,” to be held and presided over by a city justice, to be designated and appointed by the mayor. The city justice of the peace is an officer "provided for by the constitution, and his election, term of office, and compensation are prescribed by the codes. The charter does not attempt to abolish the office or the court of the city justice, but adds the duties which theretofore in the municipality were performed by the police court, gives it, for the performance of those duties, and the administration of the judicial department of the local government, a clerk and seal, makes it a court of record, calls it “ municipal court,” and declares that it shall not be deemed a new court, but a continuation of the courts theretofore existing. After the organization of the municipality under the new charter, and in May, 1889, Tam resigned the office of police judge, and the municipal court was organized by the appointment of Tam as clerk, and of the city justice, plaintiff, as judge thereof. This gave the plaintiff no new term and no new office. It simply made him ex officio judge of the new court. No other person was eligible to act as such, as none but a city justice of the peace could be desig