The herald., 1898-02-05
All Louie Must Be Tried by
Judge Owens
is STILL AN OPEN QUESTION
CONSTITUTIoNALITY OF POLICE
COURTS NOT CONSIDERED
Because Their Existence Under These
Prohibition Proceedings Is Not
Raised in This Case

| Raised in This case
The superior court in banc yesterda,
handed down the following opinion ii
the case of All Louie VS.. Police Judge NJ
T. Owens, heard in Department two il
the early part of January:
This is a petition for writ of prohibi'
ton to prevent the defendant, as judge
of the police court of the city of Los An
geles, from proceeding to try the petit
toner upon criminal charge of mis-
demeanor alleged to havx been filed ir
said court against petitioner 1t is al
| legged that the defendants claims to be
the judge of such police court, and that
as such judge he is about to proceed with
the trial of the said criminal charge, but
that, in fact, the defendant is not the
! judge of said court. and that there is
not, in law, any such court in existence.
Writs of prohibition are provided for
| by Sections 1102 to 1105, inclusive, of the
Code of Civil Procedure. The character
of the writ and the purposes for which
| II may De issued are set lOEll III CSStlOiiS
1102 and 1103, which are as follows:
| Sec, 1902 The writ of prohibition is the
counterpart of the writ of mandate. 1t
arrests the proceedings of any tribunal,
corporation. board or person. when such
proceedings are without or in excess of
the jurisdiction of such tribunal, cor
poration, board or person.
Sec. 110S. 1t may be issued by any court,
| except police or justices courts, to an in
ferior tribunal or to a corporation, board
or person, in all cases where there is not
a plain, speedy and adequate remedy in
the ordinary course of the law. 1t is is
sued upon affidavit on the application of
the person beneficially interested.
The character and purpose of a writ of
mandate, of which prohibition is the
counterpart, are stated in Section 1885,
Code of Civil Procedure, as follows:
Sec. 1856. 1t may be issued by any court
except Justices or police court, to any in
ferior tribunal, corporation. board or Per-
son, to compel the performance of an act
which the law specially enjoins. as a duty
resulting from an office. trust or station;
or to compel the admission of a party to
the use or enjoyment of a right or office
to which he is entitled and from which he
is unlawfully precluded by such inferior
tribunal, corporation, board or person.
644, was a proceeding by way of GER
tiorari to review and annul the proceed
ings of the municipal court of appeals
of San Francisco in trying certain case
appealed to it. The principal reason
urged on the argument as a ground for
the relief prayed for was that the statute
creating the municipal court Of appeals
was unconstitutional. and that therefore
there was no such court in existence.
The supreme court held that certiorari
was not the proper remedy, and said
that the question whether the statute |
creating a court Is, or is not, constitu |
tional, is one in which ''the people are |
interested, and it ought not to be deter |
mined without giving them their day in
court" that the existence of the court |
was a matter of public concern, and |
that it could not be determined except |
in an action in the name of the people for
that purpose, or in which the state of
California was a party. The court says
further: 1.-THE petition for a writ of
certiorari to be director to the court,
commanding it to certify and return the
record and proceedings in an action
which has therein been determined, af-
firms, by necessary implication. the ex-
istence of the court as judicial tribu-
nal"
The case of Davis VS.. Superior Court,
63 Cal. 581 was an application for a writ
of mandate to compel the superior court
to proceed with the trial of case. The
case had previously been tried in the
same municipal court Of appeals. The
ground Of the application was that the
statute creating the municipal court of
appeals was unconstitutional, that
therefore the court had no existence,
the pretended trial was as if it had not
been that the case was one within the
jurisdiction Of the superior court and
that 1t was accordingly the duty Of the
superior court to proceed to try it. The
supreme court says:
In Fraser VS.. Freelon, 5S Cal. 644 it was
held that the invalidity of the statute in
question could not be determined upon tha
return to writ of certiorari. II was there
said that the people, We're interested in
the question whether the statute prescrib-
ing the jurisdiction of the court was con-
stltutional; that the question could only
be decided in an appropriate form of action
brought in the name Of the people or to
which the people were made a party II
is manifest that every consideration
which induced the former supreme court
TO refuse to inquire into the question of
the constitutionality of the statute in
proceeding by writ of review applies with
redoubled force to the present, which is
proceeding by mandamus. by one of the
parties to an action originally brought be-
fore the Justices court, to compel the su-
perlOr court, as successor of the county
court. to try the action
The principles which are applicable and
controlling upon matters of mandamus
are equally applicable and controlling upon
proceedings in prohibition. Bruner VS.
Superior court, % Cal. 2j9.
The writ Of prohibition is declared by
the code to be the counterpart of the
NotbsrsI SSotbersi Fto*bersi