Ex parte Giambonini

Henshaw, J. Petitioner -was convicted in the police court of the city of Stockton of the crime of selling intoxicating liquors to a minor under the age of eighteen years. He was sentenced to pay a fine of one hundred dollars, and in default of payment to be imprisoned for one hundred days in the city jail. C. P. Rendon, who acted as judge of the police court, was at all times a justice of tLv peace of the city of Stockton.

Petitioner contends that the judgment against him is void because the police court of the city of Stockton has no legal existence. Against this it is insisted that Rendon, as justice of the peace, had jurisdiction of the offense and of the person of the offender, and the proceedings will be regarded as having taken place in the justice court before a justice of the peace, and the designation of the court as a police court, and of the justice as police judge, will be held nonessential errors.

The law for the creation of the police court of the city of Stockton is found in the statutes of 1891, at page 433. It is entitled “An act to provide for police courts in cities having fifteen thousand and under eighteen thousand inhabitants.” This law does not conform to the provisions of the act of 1883 classifying municipal corporations by population as the constitution commands (Stats. 1883, p. 24), nor yet is it an act amendatory of the earlier statute. It expresses just such another legislative effort as that considered in Darcy v. Mayor, etc., 104 Cal. 642. It is an attempt to force special and arbi[575]trary legislation upon a city or cities, without regard to their general classification, for purposes of legislation set forth in the classification act of 1883. This, for the reasons declared in Darcy v. Mayor, etc., supra, the legislature may not do. It follows, therefore, that the law attempting to create the police court of the city of Stockton is unconstitutional.

It results, then, that while this petitioner was- tried and convicted under the forms of law, the proceedings were coram, non judice and void, for they were had in a pretended- court possessing no legal existence. It is not the case of a de facto officer filling a legally existing office. The police court here had no legal existence. And while it is true that in some states such an office is recognized as valid and existing until under direct proceedings the act creating it has been declared unconstitutional, such a doctrine, as pointed out in Buck v. City of Eureka, 109 Cal. 504, is opposed to the great weight of reason and authority, and is in direct opposition to the oft expressed views of this court. (People v. Toal, 85 Cal. 333.)