Elder v. McDougald

A mandamus proceeding was brought to compel defendant, as treasurer of the city and county of San Francisco, to pay a claim of plaintiff for services rendered as stenographic reporter in reporting the testimony and proceedings before a judge of the police court of the city and county of San Francisco, at the preliminary examination held therein, of one B. A. Fitzgerald, charged with murder. The superior court sustained the demurrer to the answer of defendant, and ordered a peremptory writ to issue, requiring payment as prayed for by plaintiff, and defendant appeals.

There is no dispute as to the fact of the appointment of plaintiff and the rendition of the services; it relates to the validity of the appointment itself.

The plaintiff was appointed by a judge of the police court, created under the charter of the city and county of San Francisco, before whom" the preliminary examination was being held, and the appointment was made under section 869 of the Penal Code, which it is claimed conferred power upon him to do so. It is insisted by the appellant, however, that the judge had no authority to make the appointment under this section, but that the charter of the city and county of San Francisco,

The constitution (section 8£ of article XI) authorizes and empowers the creation of police courts, and places such courts under charter control by providing that “it shall be competent, in all charters framed under the authority given by section 8 of article XI of this constitution, to provide, in addition to those provisions allowable by this constitution and by the laws of the state, as follows:—

“1. For the constitution, regulation, government, and jurisdiction of police courts, and for the manner in which, the times at which, and the terms for which the judges of such courts shall be elected or appointed, and for the compensation of said judges and of their clerks and attaches.”

Under this constitutional provision a charter for said city and county was regularly adopted, wherein a police court to be known as the police court for the city and county of San Francisco was created and established, consisting of four judges, one each for the several departments into which the court was divided.

As to jurisdiction, it was provided that “the police court of the city and county of San Francisco shall have:—

“First—Exclusive jurisdiction of all prosecutions for the violation of ordinances of the board of supervisors.

“Second—Concurrent jurisdiction with the superior court of all misdemeanors and of the examination of all felonies committed in the city and county.

“Third—Said court, or any judge thereof, shall have the same powers in all criminal actions, cases, examinations and proceedings as are now or may hereafter be conferred by law upon justices of the peace.”

This is a sufficient statement of the charter provisions under which to examine the points involved.

It is o[uite clear that the adopted charter, in as far as it undertakes to confer jurisdiction to hold preliminary examinations for felonies, confers it solely upon the police court of ■such city and county, to be exercised as a court. No jurisdiction is conferred under that instrument upon the judges •of such court to hold them, nor could such jurisdiction be ■conferred upon them under the constitutional provision which authorizes only the creation of police courts. Nor .was it necessary to confer any such jurisdiction by the charter. The charter having created the police court, b> that very creation any judge thereof, ipso facto, became vested with jurisdiction to conduct such examinations under the general law of the state as a magistrate. (People v. Crespi, 115 Cal. 54 ; People v. Cohen, 118 Cal. 78 .)

That law (Pen. Code, sec. 808) provides that among others invested with such jurisdiction shall be included “police magistrates in towns or cities,” and, as incident to their jurisdiction as such magistrates, further provides that they shall have the power to appoint a reporter to take notes of the preliminary examination and to fix his compensation, which shall be paid out of the treasury of the city, or city and •county, in which such examination is conducted. (Pen. Code, :sec. 869.)

The record in this case shows that the preliminary examination at which the respondent assisted was not conducted by

It must, of course, be conceded that this contention of' respondent is correct, unless the constitutional provision did confer such power, even when the judge of the police court,, by virtue of his office as such, was acting as a magistrate, and. whether it did or not is the only point in the case.

. It is to be borne in mind that the power conferred upon the-framers of municipal charters to legislate concerning police courts, as to the “constitution, regulation, government, and jurisdiction” of such courts, and with reference to the clerks, and attaehés thereof, proceeds directly from the people, expressed under a constitutional provision. Prior to this it was not competent to make any provision by framers of municipal charters for such courts. That power could only be-exercised by the legislature. (People v. Toal, 85 Cal. 335 .)

It was expressly to confer this authority to so legislate that the amendment to the constitution (section 8½ of article XI) was adopted by the people: to authorize their creation not only for municipal purposes—the prosecution for violation of municipal ordinances—but as agencies of the state to assist, to a certain extent at least, in the enforcement of its general criminal laws. As these courts were to be supported and sustained by the municipalities creating them as part of the-municipal government, and from the municipal funds, it was intended under the broad provision of the constitution conferring power to “constitute, organize, and govern” them,, that the charter might provide for the appointment and compensation of all persons who might, in a general sense, and in view of the jurisdiction with which such courts might be-clothed, be deemed necessary to a full and efficient exercise-of such jurisdiction.

And while it is contended on this appeal that it was not" competent under this constitutional grant of power for the-charter framers to invest such police courts with jurisdiction to enforce the general laws of the state to the extent of hold

If the court could not he invested with such jurisdiction,, it could certainly be invested with jurisdiction for other purposes, and there is no doubt that it was competent to provide in the charter for such stenographic reporters as might be deemed necessary for the general purposes of such courts. These reporters are recognized by our laws as proper, and sometimes indispensable, adjuncts to a court, to enable it to. properly and efficiently discharge its duties.

But whatever the power conferred under the constitutional provision may be relative to the right of the charter framers, to provide for reporters as necessary to the full and efficient equipment of the police court, as a court, it is contended that there is no authority conferred by the constitution upon the charter framers to provide for such reporters to the judge of said court acting as a committing magistrate in conducting such examination under jurisdiction conferred by the general law and not under the charter. We are, however, of an opposite opinion, and think that a fair construction of the constitutional provision not only authorized the framers of the adopted charter to legislate as to the necessary attaches of the police court itself, but also as to those whose attendance upon the judge of the court might be necessary to the exercise of any jurisdiction with which he was invested—whether that jurisdiction was derived from the charter itself, or was conferred upon him under the general laws, by virtue of his existence as a police judge under the charter. The constitutional amendment was framed and adopted with a knowledge of the then existing legislation relative to police courts and their duties, and of the jurisdiction conferred upon the latter under the general law, from their existence as such police judges. And while authorizing the chartered municipalities to provide for the compensation of the attaches of the court itself, it had in view also the fact that (specially in a merged and consolidated municipal government, like that of the city and county of San Francisco) a large jurisdiction might be exercised by the judges of such courts under the general law, in conducting preliminary examinations, and that in exercising that jurisdiction there would necessarily be incurred ex

As to the power of appointment, we think that from the context of the provision of the constitution it is apparent that such power was conferred. The right to “constitute, regulate, and govern police courts” would be sufficient warrant for the appointment of all persons necessary to its complete and efficient organization, and that the relation of the term “their clerks and attachés” to the general context of the provision authorized not only the fixing of the compensation of such attachés, but of their appointment to the judges of the court when necessary and proper.

It is to be borne in mind, however, in passing, that as far as stenographers are concerned there is no attempt made by the charter provision to appoint any particular person as stenographer, or to appoint at all in the sense of the term as generally understood. It is left to the police judges to make the individual appointments—the charter provisions simply requiring that these appointments must be limited to two stenographers, and it is prescribed that these two shall attend on the court and take notes of all preliminary examinations held therein, and that their compensation shall be an annual sum for all services rendered. This provision of the charter can only be said to be an appointment of stenographers to the extent that, as the judges of the police court have power, under the general law, to appoint stenographers at will for each preliminary examination for a felony held by them and fix their compensation for such examination, it is an attempt to place a limitation upon such power to that extent.

As to whether a stenographer can be included in the cate

We are of opinion, therefore, that, under section 8-£ of article XI of the constitution, it was competent for the framers of the charter of the city and county of San Francisco to-provide for the appointment and compensation of the attachésof the judges of the police court authorized to be created' thereunder, and that stenographic reporters come within the-category of attachés; and that it is of no moment that in conducting preliminary examinations the judge of said court acquires jurisdiction to do so as a magistrate under the general law. The purpose of the grant of power by the constitutional provision to the charter framers was to authorize-them to provide for the appointment and compensation of all attachés to the judges of such court, no matter whether such attachés were necessary to a proper discharge of the duties of said judges under the provisions of the charter or under the requirements of the general law; the charter provision operated upon them as to their attachés by virtue of their existence as judges of the police court, created under the charter.

Angellotti, J., McFarland, J., Shaw, J., Van Dyke, J., and Henshaw, J., concurred.

I concur. A shorthand reporter is not essential to the examination of a felony charge. The magistrate may, and often does, take down the depositions in longhand and have them subscribed by the witnesses at the time of the examination. The statute merely gives him the privilege, in his discretion, to appoint a reporter to take ■down the testimony in shorthand, and when that course is followed gives to the longhand transcript the same legal efficacy that it gives to a deposition regularly subscribed by the witness. (Pen. Code, sec. 869.) Conceding, then,—as I think must be conceded,—that the duty and the jurisdiction of the police judges of San Francisco to examine felony charges is solely dependent upon the provisions of the Penal Code, it does not by any means follow that the mere discretion of municipal officers to appoint assistants in the performance of a duty devolved upon them by the laws of the state may not be subjected to reasonable limitations by the municipal charter.

San Francisco being a consolidated city and county, the whole compensation of her police magistrates and their assistants is payable out of the municipal funds. The framers of her freeholders’ charter have decided that two salaried shorthand reporters will suffice for the duty of taking down the evidence at preliminary examinations and have said, in effect,

As to the competency of a municipal charter to regulate the compensation of municipal officers for the performance of all duties, including those devolving upon them under the general laws of the state, the case of Matter of Dodge, 135 Cal. 512 , is conclusive. In that case it was not only held that the compensation of the assessor, payable out of the municipal treasury, could be fixed by the city charter, it was even held that a compensation allowed him by the general law out of the state funds, for services rendered exclusively for the benefit of the state revenue, could be taken away and covered into the local treasury for the benefit of the municipal salary fund. So long as that decision stands the right of the freeholders to fix the compensation of all municipal officers cannot be questioned. The stenographer appointed to report the proceedings at. a felony examination is an officer—he must qualify by taking the oath of office—and in a consolidated city and county he is á municipal officer, and his compensation for all duties is subject, like that of the police judge, to regulation by the charter.

Rehearing denied.