The San Francisco call., 1898-02-01
Sacramento Deprived of This Branch Of the
 Judiciary.
Judqe Hart Renders His De- cisiOn Declaring It Non
 Existent.
Culprits Who Have Been Fined or Imprisoned Will Now Seek
 Redress.
Special Dispatch to The Call.

SACRAMENTO, Jan. 31.-As was published exclusively in The Call this morning, Judge Hart filed his opinion to-day which deprives Sacramento of a Police Court. About the only people who find a solace in Judge Hart's de- cision are those serving terms in the County Jail under sentence passed upon them by this defunct Fountain Of Justice. The legal striplings of the town are preparing an onslaught against Sheriff Johnson's boarding house and the probabilities are that before to-morrow's sun shall set every hobo who has received his sentence from this play court will be liberated through the constitutional gateway of habeas corpus.
 Those who have taken advantage Of the ever existing alternative during the last two years, are wondering what process of law will restore to them the fines they have paid, and from those grand old citizens who have paid the penalty of maintaining poor sidewalks, to the humpbacked scorcher who has been fined for fast riding, there is a concerted movement to procure re- turn of the moneys illegally forced from their unwilling pockets. Taking 1t all in all it is rather a serious state of af- fairs and much uncertainty exists as to the real status of the recently elect ed Police Clerk and City Attorney.
 Following is the substance of Judge Hart's opinion:
 Petitioner was tried and convicted in what was claimed to be the Police Court of the city of Sacramento, during the month of July, 1S97 of the offense or Vlo- lating ordinance No. 430 of said city, ana was adjudged to pay fine Of S2UU or, III default of the payment of such fine, to be Inlprisoned one day for each and every dollar of said fine, to wit: for the perlou of 200 days. An appeal was taken rom said judgment to the Superior court or Sacramento County and, after the near ing thereof by said court, the judgment against petitioner was affirmed on the 17th day of January, 1888. In support or his application for a. writ of habeas cor pus the petitioner presents: the folloWlhS. as grounds for his discharge:
 First-That the judgment is XoId, De cause the entire proceedings were had in an alleged court having no legal exist:
 second-If it be conceded that the judg-. rnent is not void. for the above reason, the sentence imposed upon petitioner is void because in excess of. jurisdiction of the
 The complaint upon which the petition CT was prosecuted was sworn to before one E. C. Rutherford. who styled himself the Clerk of the Police Court Of, in, and for said city of Sacramento, and the title of the court allegeG in said complaint is as folIows: State. of California, Coun-~ ty of Sacramento, in the. Police. Court Of the City of Sacramentoi in said county, before Hon. George *G.. Davis Police The present charter. of the. city of*Sac- ramenfo was approved by the: Legislature on February !, 1893, by a concurrent reso- 9e- lution, and went into effect on the Sth day of January 1894. Prior to the adoption or this charter there existed in this city Police Court, which was created by an act of the Legislature of 1S63-64, and the jurisdiction thereof established by an amendatory act approved March q, 1SfS. The present constitution expressly pro- hibits any such legislation.
 The question now arises as to whether or not the proceedings, resulting in the conviction and imprisonment or the peu- tioner having been had before a person clothed with the authority and exercising the functions of a legally constituted trl- bunal. to wit: The office of City Justice, was coram judice. notwithstanding the fact that all the papers, processes ana records In said cause purported to have Issued from and were of and in non existing court.
 tioner was verified before a person who claimed to be clerk of the Police Court
 The complaint and the proceedings had hereunder purported to have been n!ed and to have taken place in the Police Court. The transcript on appeal was cer- tified to by a person claiming to De clerk l.. be no clerk of a court having no exist ence and there is, therefore, no such an officer as clerk of the Police Court In thls city; but. as I have heretofore stated, the charter does not attempt to create Po- lice Court by express terms nor does it attempt to create clerk Of Ponce Court. It simply provides, in effect, that the City Justice, upon whom 1t shall be- come incumbent (having Jurisdiction to do so under the general law) to perform the duties which the law creating the Police Court, existing before the adoDti of the charter, expressly invested f.l 5uch court. shall have a clerk; and, though the provision (Sec. 52) provides that he shall be designated the Clerk of the Police Court '' such designation amounts to mo- thing and cannot authorize the perform ance by him of duties pertaining to non existing tribunal. Under the provisions of the charter he is simply a clerk of the city Justice of the Peace.
 I am of the opinion that the Legislature had no right, by concurrent resolution. to invest the chief executive officer of the municipality with power of naming any Justice of the Peace of the county to take the place of a city Justice of the Peace. The general law concerning city Justices of the Peace provides among other things that ''No person shall be eligible to the office of Justice of the Peace in any city having over 15,0G0 inhabitants who has not been admitted to practice law in a court of record" And l think that when B Justice of the Peace is called upon for any reason authorized by law to preside In the court of a city Justice of the Peace he must possess such qualifications of such city justice as are prescribed by the general law.
 It follows that at the time of the trial and conviction of the petitioner there was not, nor is there now such a tribunal as B Police Court existing in the city of Sacramento, and. hence. the proceedings against petitioner were void and he must, therefore, be discharged.