Ex parte Sparks

TEMPLE, J. This is a proceeding upon habeas corpus. The petitioner states that he was arrested upon a complaint sworn to before one E. C. Rutherford, who claimed to be clerk of the police court of the city of Sacramento, and was thereafter tried and convicted in a pretended police court of said city, which court was presided over by Honorable G-. G-. Davis, who styled himself police judge, and was sentenced in said pretended court by said alleged judge to six months imprisonment in the county jail of Sacramento county, and is now held by Frank T. Johnson, sheriff, by'virtue of said judgment and commitment issued thereon.. It is contended that there is legally no such court and no such judge, and, therefore, the detention is unlawful.

' Sacramento is governed under a so-called freeholders’ charter, which was approved by the legislature by resolution merely. _ It took effect January 8, 1894. (Stats. 1893, p. 547.)

The charter provided (section 50) that the jurisdiction which had previously been exercised by the police court should' be vested in the city justice of the peace, and it was made the duty of such justice to hold a police court. The jurisdiction of the court is provided in the charter. It is made a court of record and provided with a clerk. It is also enacted that certified copies of its records, files, process, and proceedings shall be received in evidence in any court in this state; "and-all warrants and process of said court, and all acts done by said court and certified under its seal, shall have the same force and validity in any part of the state as though issued or done by any other court of record in the state.’’

The police court and the police judge alluded to were constituted by an.act amending the charter of Sacramento, passed in 1878. (Stats. 1878, p. 590.) The former court was not . a court of record. It was presided oyer by a police judge and not by a justice of the peace.

It is practically claimed that in the new charter the old police [397]court is simply recognized and continued, and that no different power or jurisdiction is given to it. In this mode it is supposed that the lack of power to establish courts in freeholders’ charters has been overcome—a court has been continued—but no attempt has been made to create a court by the charter. So, too, the presiding judge is a justice of the peace—an officer not created by the charter but by law passed by the legislature.