The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1898-02-01

| The question now arises as TO whether
or not the proceedings. resulting in the
conviction and Imprisonment of the Pc
| titioner having been had before per-
son clothed with the authority and ex-
| ercising the functions OF a legally con-
stituted tribunal, to-wit: The office OF
City Justice, We're coram JUDGE, not
| withstanding the fact that all the
papers, processes and records in said
cause purported to have issued from
ard were of and in non-eXisting
court
The complaint in the case of the petit
| toner 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 filed
and to have taken place in the Police
| Court. The transcript on appeal the
entire record of the case having been
admitted in evidence at this hearine)
was certified to by a person claiming TO
be Clsrh Of the Police Court. OF course
/ there can be no clerk of a court having
no existence. and there is, therefore, ~
such an officer as Clerk Of the Police
Court in this city. but, as / have here
| tofore stated, the charter does not at
! tChlpl ~ Il L OtiCt AOuIt ny ~
press terms, nor does it attempt to ere
ate Clerk of Police Court. II simply
provides, in effect, that the City Justice,
upon whom it shall become incumbent
| (having jurisdiction to do so under the
general law to perform the duties
which the law creating the Police Court.
existing before the adoption of the
charter, expressly invested in such
! -, -,
the provision (Section so provides that
he shall be designated the Clerk of the
| Police Court such designation
amounts to nothing, and cannot author
| ize the performance by him of duties
pertaining to a non-existing tribunal.
Under the provisions of the charter he
is simply a clerk of the City Justice OF
| the Peace.
In the case Of ex parte James Reilly,
on habeas corpus 80 California, CD,
! 1.-The petitioner was arrested, tried ana
convicted upon q charge of batterly al
legged to have been committed in thu
City OF Los Angeles. The trial took
place before Justice of the Peace who
styled himself ex-officio Police Judge
of the City of Los Angeles, and he APP
pears to have been acting as such Po-
| lice Judge by designat ton of the May
or, in pursuance of the so-called Whit
ney Act. which it was intimated in the
first decision in People VS. Toal. applied
to the City of. Los Angeles. The claim
of petitioner is that his imprisonment
/ is illegal, because under the freehold
ers' charter Of Los Angeles the Police
Court thereby created an exclusive
Jurisdiction of the offense with which
| he was charged, and consequently that
| Lockwood Justice of the Peace desig-
mated under the Whitney Act, had no
jurisdiction" In that decision the Su
preme Court held the charter provisions
| concerning the Police Court void and
| that such court had no jurisdiction in
any case. The court then proceeded to
say: 1T is conceded that Lockwood
was Justice of the Peace. AS such,
/ he had jurisdiction of the offense of bat
terry, and his Judgment in the case is
none the less valid because he styled
himself ex- officio Police Judge of Los
Angeles. thereby claiming to exercise
] his authority under the Whitney Act.
| From this it would appear that the
| mere wrongful designation of a court.
| having under the general law govern
/ ing it's powers and duties, jurisdiction
to try a person charged with certain
offense, would not vitiate a judgment
of conviction. But the last declaration
| of the Supreme Court upon this point
| is contained in the case of ex parte
Giambonini, reported in the III Cali
| fornia, 573 The facts of the conten-
ton of petitioner in that case are stated
| in the opinion of Justice Henshaw as
| follows: Petitioner was convicted in
the Police Court of the City of Stock
| ton of the crime of selling intoxicating
| liquors to a minor under the age of IL
years. He was sentenced TO pay a fins
/ OF S100 and in default Of payment to
! be imprisoned for 100 days in the City
| Jail. c. p. Rendon, who acted as Judge
of the Police Court, was at all times
Justice of the Peace of the City of
Stockton. Petitioner contends that the
| judgment against him is void because
the Police Court of the City of Stock
/, ton has no legal existence. Against
| this it is insisted that Rendon. as JUS
| tice of the Peace, had jurisdiction of
| the offense and of the person of the
offender, and the proceedings will be
| regarded as having taken place in the
Justice Court before a Justice of the
Peace, and the designation of the court
as a Police Court, and of the Justice
as Police Judge, will be held non-essen-
| tial errors
| 1t was held by the court that the
| law for the creation Of a Police Court
! of the city of Stockton was unconsti-
| tutional because it did not conform to
the provisions of the Act of 1888, CLASH
| flying municipal corporations by pop
| lation, as the Constitution commands.
Treating the contention of the petition
er, that the proceedings should be re-
| garded as having taken place in the
Justice Court before a Justice of the
Peace, and, that the designation of the
court as a Police Court and of the JUS
tice as Police Judge would be held
essential errors, Judge Henshaw
| Uses the following language:
| 1T results then, that while this petit
TONER was tried and convicted under
the forms Of law, the proceedings were
coram non JUDGE and void. for they
were had in a pretended court possess-
! ing no legal existence. 1t is not the
case of a de facto officer filing a legal
existing office. The Police Court here
had no legal existence. Nor
do we think the conclusion thus neces-
STATED can be in any way modified by
1.-THE consideration that the acting Judge
Of the Police Court would have had
| Jurisdiction as Justice Of the Peace In
truth. he acted, and purported to act
as a judicial officer occupying the bench
of an unconstitutional, and therefore
n-existirg court. All the processes
issued from the Police Court; the pre-