People v. Toal

FOOTE, C. The defendant was convicted of an assault with intent to commit murder. From the judgment of conviction, an order overruling his motion in arrest of judgment, and an order denying his motion for a new trial he appeals. The order overruling the motion in arrest of judgment is not itself appealable by the defendant, but may be reviewed on his appeal from the judgment: People v. Majors, 65 Cal. 100, 3 Pac. 401.

The main point relied on by the defendant seems to be that the police court of the city of Los Angeles, before the judge of which his preliminary examination was had, and by whose order he was committed for trial before the superior court of Los Angeles county, was not a legal court; that the judge thereof was not authorized by the constitution of the state to perform any function whatever as a committing or other magistrate. The defendant made a motion in due time that the information be set aside upon the ground that before the filing thereof he had not legally been committed by a magistrate, under section 995 of the Penal Code. If in fact he was not legally committed by a magistrate, the point made is well taken: People v. Shem Ah Fook, 64 Cal. 382, 1 Pac. 347; Kalloch v. Superior Court, 56 Cal. 229.

In support of his contention the defendant declares that the provisions of the charter of the city of Los Angeles, under and by virtue of which L. Stanton, the police judge, who sat as committing magistrate in his case, was elected and claims to exercise the functions of a magistrate, are in violation of article 6, section 1, of the state constitution; that the joint resolution under which that charter was adopted by the legislature as a whole, to be found in acts'of 1889, page 512, was without force and effect so far as it concerned the establishment of a police court in said city. That resolution, omitting the preamble and charter which precede it, reads as follows:

“Resolved, by the senate of the state of California, the assembly thereof concurring, (a majority of all the members elected to each house voting for and concurring herein,) that said charter be, and the same is hereby, approved as a whole for and as the charter of said city of Los Angeles.”

[229]Was this a proper legislative method of enacting a law which would establish a legal inferior court, such as article 6, section 1, of the state constitution warrants ? That section of the above-named article reads thus: “The judicial power of the state shall be vested in the senate sitting as a court of impeachment, in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may establish in an incorporated city or town, or city and county.” It is conceded by the appellant that the supreme court of California, in Brooks v. Fischer, 79 Cal. 173, 5 L. R. A. 429, 21 Pac. 652, has held that the charter above referred to was legally adopted, and valid in most of its provisions, but that as to the particular provisions which bring into existence a police court, and invest it with the functions of a committing magistrate, that there has been no adjudication of their validity. Section 13 of article 6 of the state constitution is: “The legislature shall fix by law the jurisdiction of any inferior courts which may be established in pursuance of section 1 of this article, and shall fix by law the powers, duties, and responsibilities of the judges thereof.” It seems clear from the language used in these constitutional provisions that it was the intention of those who framed that instrument, in establishing inferior courts, such as the one under consideration, to declare that it must be done by the passage of an act of the legislature, and its approval by the governor, or, upon his veto thereof, must be passed again by two-thirds of the members of each house voting therefor, and must become a law in the same manner as any other law is to be enacted under sections 15 and 16, article 4, of the constitution; and this method of procedure must prevail in all cases, unless a different rule is established, pertaining to the bringing into existence of inferior courts, under provisions of charters, such as that of Los Angeles. This difference can only exist, if it be authorized at all, by the sixteenth amendment to the state constitution, amending the eighth section of article 11 of the constitution, to be found in Laws of 1887, pages 88-90. The portion of it applicable here is as follows: