TEMPLE, J., Dissenting. Soon after this case was submitted, I prepared the annexed opinion, and a judgment discharging petitioner from custody. To that opinion I still adhere, notwithstanding the reasoning of the chief justice. I do not agree with the criticisms upon Miner v. Justice's Court of the Town of Berkeley. The counsel who appeared in that case, with one exception, appear also in this, and all points were then made in favor of the existence of the justice’s court which are made here, so far as they then could have been made. The bearing which the new legislation would have upon the matter was, of course, not then considered. The questions discussed in the opinion were the only ones then thought material. The new proposition now made would, at the most, have been only an additional argument against the position then taken by the court. But, in my judgment, there is no force in the argument now made. The joint reso[577]lution of the legislature approving the freeholders’ charter is not evidence of the population of the town of Berkeley of the most solemn and conclusive character, or at all. No authority is cited in support of this proposition, and I venture the assertion that none exists. In Stevenson v. Colgan, 91 Cal. 649, 25 Am. St. Rep. 230, 14 L. R. A. 459, 27 Pac. 1089, the rule upon an analogous question was stated thus: “When the right to enact a law depends upon the existence of facts, it is the duty of the legislature before passing the bill, and of the governor before approving it, to become satisfied in some appropriate way that the facts exist; and no authority is conferred upon the courts to hear evidence and determine as a question of fact whether these co-ordinate departments of the government have properly discharged such duty.” The legislative determination is conclusive upon the courts, so far as the validity of the law depends upon the existence of the facts; and accordingly it was held that in passing upon the validity of a law the court must confine itself to the facts apparent upon the face of the statute. Except as to what have been called “public facts”—such as the existence of a state of war, or martial law, or public disorder, or of certain political facts—the cases do not go further: Luther v. Borden, 7. How. (U. S.) 1, 12 L. Ed. 581. And I repeat the conclusiveness of the supposed legislative finding only obtains as to the question of the validity of the law. Here the question to be passed upon was not whether the town contained 10,000 inhabitants, but whether it contained 3,500. Only so far would it be binding upon parties if it were a judgment of a court. To that extent only could the adjudication go.
The principal opinion also relies upon the special census taken under the amendment of the classification act, which amendment was made in 1899. I have shown—at least to my own satisfaction—that this amendment does not apply to any city or town which could not effect a change of its organization from one class to another; and, further, that after the census has been taken the city does not enter the new class until the reorganization has been accomplished. It was held by Mr. Justice Henshaw that such was the ease even under the classification act of 1883: In re Mitchell, 120 Cal. 384, 52 Pac. 799. Section 103 of the Code of Civil Procedure does not provide that cities having a population of 10,000 and not [578]more than 20,000 shall have a justice of the peace. If this special census was lawfully taken (which I deny) Berkeley did not become a city of the fourth class. Section 103, therefore, does not apply to it. Berkeley did not enter a new class in the mode provided.
It is said that when the first classification act was passed it was intended to include and apply to all municipalities. For one I concede this. There were then no freeholder charters, and but one city could have formed a charter under the constitution as first adopted; and the legislature could amend or change all municipal charters by general laws. It was held that such general laws were laws in regard to the organization of municipalities: City of Los Angeles v. Teed, 112 Cal. 319, 14 Pac. 580; City of Pasadena v. Stimson, 91 Cal. 249, 27 Pac. 604. Since then the constitution has been amended, and now general laws do not affect any cities or towns as to municipal affairs. There can be then no possible purpose for a classification under the constitution except as to cities and towns formed under the municipal incorporation act. The classification for this purpose does not make the reference to the classes for other purposes general laws. Such laws will be special unless justified for other reasons than the refer- < enee to such classes. This was elaborately shown by the chief justice in Dougherty v. Austin, 94 Cal. 601, 16 L. R. A. 161, 28 Pac. 834, 29 Pac. 1092. I perceive no effort in the principal opinion to answer the objection that section 103, as amended, is a special law, if it applies to the town of Berkeley. In that respect it is the precise case considered in Miner v. Justice’s Court.
We concur: Henshaw, J.; Harrison, J.
“TEMPLE, J. The petitioner is held in custody for a violation of an ordinance of the town of Berkeley upon a judgment before Robert Edgar, who claimed to be, and acted as, a justice of the peace of the town of Berkeley. The petitioner contends: (1) That under the laws and constitution of the state there is no justice court in the town of Berkeley, and therefore Edgar was not a justice of the 'peace; (2) the ordinance under which the conviction was had is void, because repugnant to general laws of the state, and also to the state and federal constitutions; and (3) the complaint upon [579]which he was prosecuted does not show that he has violated the ordinance.
“It was decided by this court in Miner v. Justice Court, 121 Cal. 264, 53 Pac. 795, that there was no justice court in the town of Berkeley. It ivas said that the effect of the freeholders’ charter, adopted in 1895, was to abolish the provision for a justice court in the former special charter, and that the provision made in the freeholders’ charter for a justice court was ineffectual. It was also held that an act passed in 1895, purporting to create a justice court in the town of Berkeley, was void, because it was special and local legislation. In 189-9 the legislature passed two acts, which, it is contended, together had the effect of providing a justice court for the town of Berkeley. One was an act to amend the classification acts of 1883: Stats. 1899, p. 141. It authorized a special census of the inhabitants of any city or town, and provided that if, from such census, it should appear that the number of inhabitants would entitled the municipality ‘to reorganize under a higher or lower class,’ proceedings could be inaugurated to that end, and for the election of the officers required for the class to which it was changed, and that upon the qualification of such officers the corporation shall belong to such class. Then follow the provisions which throw doubt upon the purpose and effect of the amendment. They are: ‘Whenever the result of such enumeration shall have been declared by the council, board of trustees or other governing body, and entered in the minutes of such body, thereupon the number of such inhabitants so ascertained shall be deemed the number of the inhabitants of such city for all the purposes of this act, and for the purposes of legislation affecting municipalities. The clerk of the council, board of trustees, or other governing body of such city, shall cause a certified copy of such minute order to be filed with the board of supervisors of the county wherein such city is situated. ’ Counsel differ radically as to the effect of these two sentences. The petitioner contends that the census does not of itself change the class of the city, but only serves the purpose of the act, which is to enable the city or town to reorganize, and enter another class. The respondent argues that, as soon as the census return is entered in the minutes, the city enters a new class, and is thenceforth in the class indicated by the census return. But the presumptions are all against this construe[580]tion. The purposes of the classification required by the constitution are for the incorporation and organization of cities and towns only. In regard to laws not for such purposes the classification is not one made by the constitution, in regard to which legislation may be had without incurring the risk that such legislation may be special or local. No doubt the classes might be referred to in legislation as conveniently indicating the subjects of legislation; but when so referred to in statutes in regard to other matters than the incorporation and organization of cities and towns the legislation must be general, or the failure to include all must be justified by intrinsic differences: Rauer v. Williams, 118 Cal. 402, 50 Pac. 691. Whatever plausibility there was formerly in contending that the classification could apply to cities and towns other than those organized under the general municipal incorporation act, there is none since the constitutional amendments of 1896, which deny to the legislature the power to control the charters of cities and towns as to municipal affairs. Whatever meaning may ultimately be given to the ■ phrase ‘municipal affairs,’ I have no donbt it will include all matters pertaining to the incorporation and organization of such cities and towns. It is not to be presumed that these cities and towns are to be classified whose organization cannot be controlled or affected by the legislature. Apparently now no such legislation is possible save as to cities and towns organized under the general incorporation act, and that must be by amending the general municipal incorporation act. The legislature could not have intended that the mere taking of the census should of itself raise the city to another class. The impracticability of this is shown in Bauer v. Williams, supra, and the proposition is amplified by Mr. Justice Henshaw in his concurring opinion: In re Mitchell, 120 Cal. 384, 52 Pac. 799. This proposition may be said to be the basis of that decision. In view of this construction we are not at liberty to suppose that it was intended that the town of Berkeley should, by merely entering the return of the enumeration, pass to another class of cities. Having a freeholders ’ charter, there would be nothing accomplished by such classification. The number of the inhabitants so ascertained may be deemed the number of the inhabitants for the purposes of legislation without changing the classification of the town—supposing it to be a town which could be included in the classification.
“The other statute referred to, passed,in 1899, consists in an amendment to section 103 of the Code of Civil Procedure. The former section, for the purpose of providing for justices of the peace in some cities, made a classification of cities having 10,000 and not more than 20,000 inhabitants, and cities having 20,000 inhabitants and not more than 100,000. The new section provides justices of the peace for cities of the second, third and fourth classes, but excepts from its operation cities and towns organized under the general municipal incorporation act. Berkeley is a city of the fifth class, and no justice of the peace is provided for cities of that class in section 103 as amended. It is contended that by virtue of the special census, and the return thereof, Berkeley became a city of the fourth class, for which class of cities" a justice of the peace is provided in the amended section. Berkeley was not reorganized under the act so as thus to become a city of the fourth class, and, having a freeholders’ charter, it cannot be. It has, therefore, not become a city of the fourth class, and under,the decision in Miner v. Justice’s Court, supra, it still has no city justice of the peace.
“It is further contended by the respondent that the city of Berkeley has a justice court by virtue of the constitution, irrespective of the legislative action or nonaction. This contention is based solely upon the proposition that section 1, article 6, declares that the judicial power of the state shall be vested in certain named courts, in which are included justices of the peace; and section 11 of the same article provides that the legislature shall determine the number of justices of the peace to be elected in townships, incorporated cities and towns, and shall fix by law their powers, duties and responsibilities. At the best this but declares that it is the duty of the legislature to provide such courts, but the constitutional provision ■ cannot be self-operative. In the absence of legislation, the justices cannot be elected; and, if they could be elected, they would have no duties or powers.
“I conclude that there is no city justice of the peace for Berkeley, and that the petitioner is illegally held.”