The record-union., 1898-03-26

ana although some parts OF the ola
charter have no cores onding prov1s-
ions IN the new there is no presump-
ton that anything is continued. for
the new scheme is deemed complete in
itself, and to provide all that is de-
sired. That which is omitted is omit
ted because not desired. The constltu-
ton and maintenance of Police Courts
are usual in such charters, and it can
not be said that provisions for them
are not parts of the charter. The
scope of charter is very broad, and
may be made to include anything of
interest to the local government.
This charter prescribes a rule of evil
dence for all the courts of the State,
and extends its process throughout the
State. IT seems necessary that this
should be so. In many respects its
charter and it's ordinances have force
outside of the limits of the municipal
ity Yet it has been said that in re-
spect to the charter the Legislature
| is not the law-maker; it did not frame
or pass the law 1t was not charged
with any duty, and to it was not dele
gated any power either in framing or
adopting the law" people VS.. Gunn
80 Cal, 23S. See also People VS.. Toal
| 50 Cal. 1881 To this conclusion may
be traced most of the complications
and difficulties in regard to freehold
! ers' charters, and it constitutes the
embarrassment in this case.
| These cases We're decided under the
| provisions of the Constitution as they
| then stood. The conclusions were
reached after mature elaboration, and
/ for the embarrassments which neces-
| sarily resulted ill-advised legislation
was solely responsible.
| But the later amendments to the
! Constitution seem to have been adopted
| with view to relieve from the en-
| barrasSment so that I think that in
| the present condition of our State or
ganic law the question should be deem
| ed at least an open one. 1t is now eX-
| pressly provided that the charter may
| be approved by concurrent resolution,
and that then such charter shall be-
come the organic law thereof'-that is,
! 1t is a special mode for the enactment
| Of a law by the Legislature. 1t is
| clear that it is made a law by the Leg
| islature, and becomes a law by this
! expression Of the sovereign will Of the
| State. 1t prevails and has force as a
| law of the State, and is not made a
law by the people of the municipality
! by virtue Of authority delegated to
them. 1t is proposed by the munich
pality, and is accepted and passed into
law by the Legislature or rejected
as it should see fit.
The Constitution could have ordained
any convenient mode for the enact
ment of statutes. All could have been
passed by concurrent resolution, and
might have become laws without the
signature of the Governor. This mode
| is provided for the enactment of this
| particular law Nor is this all; an
amendment to the Constitution was ap-
proved by the people in 1896 in which
! it is declared that it is competent in
freeholders' charters to provide for
Police Courts and to fix their jurisdic-
! ton; and also in consolidated cities
and counties to provide for the cleo
ton or appointment and the terms of
| office of county officers. Constitution
Article XII, Section S12) Still, the
other provisions are allowed to stand
which ordain that such courts shall
be established by the Legislature It
must be held that the mode provided
for the establishment of such courts
ton to the general rule 1t may as
| easily be held that the mode provided
for the enactment Of such a law is
also special, and an exception to the
general rule. County officers in cities
and counties perform important func-
lions in the State Government Surely,
! their authority must come from the
State Government.
hYi,
ing question. 1t is contended that the
provisions in the charter of Sacra-
mento establishing a Police Court are
validated by the amendment No. 10,
adding Section S15 to Article XII, al
though the charter was passed before
the said amendment
The amendment is a grant Of author
lty. In its very nature it is to be ex-
erclsed in the future. Until the grant
| there is no power to be exercised. Such
law is not on par with those which
| are declaratory of rights, nor with
those which declare a certain specified
act criminal. Such acts, while with us
forbidden, are quite, capable Of a retro
spective operation. To give this amend
| ment such effect something must be
| added to it's terms, which would be re-
pugnant to the natural Interpretation
of the law itself.
In regard to acts concerning proceed
ure the question as to their retrospect
| i've operation in general has reference
to pending cases. No case is cited in
which it has been held that such law
| in the absence of a declared intent, has
| rendered valid a proceeding entirely
closed before the enactment of the law
and even could such a case be found it
would fall short of the necessities of
| this case
This case cannot, therefore, be
| brought under the provisions of the
amendment, and as to cases arising
before that amendment we are not in
clined to overrule People VS.. Toal, IS
! CAL, 333 We must, therefore, hold
that the judgment and commitment I'M
der which petitioner is held is void.
| The petitioner is, therefore, discharg-
| ed from custody. TEMPLE, Judge.
I concur: .Henshaw, Judge.
CONCURRING OPINION.
l concur in the judgment, and also
in that portion of the foregoing opin-
ion which holds that since January s,
! 1894, when the freehoders' charter
went into effect in Sacramento, the
Police Court previously existing in that
city has had no existence; and also in
that portion of the opinion which holds
that Section S1a of Article XI. of the
Constitution, which was adopted as an
amendment to the Constitution in the
year 1886, is prospective in it's opera
ton, and cannot be invoked for the
purpose of violating the provision for
a Police Court in freeholders' char
! ter previously adopted
1t was held by this court in People