In re Westenberg

This is an application for a writ of habeas corpus.

In a complaint filed in the police court of the city of Oakland, petitioner, the proprietor of a newspaper published in the city of San Francisco and circulated in the city of Oakland, was charged with the crime of libel committed through a publication in said newspaper. He was tried in said court, convicted, and sentenced to a term of imprisonment in the city prison of said city and appealed to the superior court of Alameda County, which affirmed the judgment. He then sued out this writ.

The only question presented here is as to the jurisdiction of the police court of the city of Oakland to try a case of criminal libel.

Crimes in this state are divided into felonies and misdemeanors, the former punishable with death or imprisonment in the state prison. Every other crime is a misdemeanor. The common-law distinction between high and. low misdemeanors does not apply in this state. All offenses are either felonies or misdemeanors and our reference to misdemeanors as high or low misdemeanors in this opinion is simply for convenience of discussion.

By subdivision 3 of section 1425 of the Penal Code, the legislature conferrred on justices’ courts and police courts generally jurisdiction over “all misdemeanors punishable by fine not exceeding five hundred dollars, or imprisonment not exceeding six months,' or by both such fine and imprisonment.” Such offenses are commonly called low misdemeanors.

All other misdemeanors, punishment of which exceeds that which marks the limits of the jurisdiction over misdemeanors in the police courts generally under the section just referred to, are designated as high misdemeanors. Criminal libel is one of the many offenses embraced in this latter class as it is punishable by fine not exceeding five thousand dollars or

The present constitution declares that the judicial power of the state is vested in certain enumerated courts of record, including the superior courts; also in the justices’ courts “and such inferior courts as the legislature may establish in any incorporated city or town, or city and county.” (Art. VI, sec. 1.) As to superior courts it declares, as just stated, that they shall have jurisdiction “in all criminal cases amounting to felony and cases of misdemeanor not otherwise provided for.” (Art. VI, sec. 5.) .The constitution further provides “that the legislature shall fix by law the jurisdiction of any inferior courts which may be established in pursuance of section 1 of this article, and shall fix by law the powers, duties and responsibilities of the judges thereof.” It further empowers the legislature to provide for “the incorporation, organization and classification in proportion to population, of cities and towns.....” (Art. XI, sec. 6.)

In 1883 the legislature under authority of the last section classified municipal corporations within the state. (Stats. 1883, p. 24, and amendments thereto; Deering’s Gen. Laws, p. 649.) Pursuant to the provisions of the constitution authorizing it to establish inferior courts in incorporated cities and provide for their jurisdiction, the legislature in 1885 passed what is known as the Whitney Act (Stats. 1885, p. 213) providing for police courts in cities having thirty thousand and under one hundred thousand inhabitants. This act provided a complete scheme for the organization and jurisdiction of said courts in such cities, and subdivision 3 of section 2 thereof conferred on such police courts exclusive jurisdiction over “all misdemeanors punishable by fine or imprisonment or by both such fine and imprisonment.” Oakland was

In the case of People v. Henshaw, 76 Cal. 436 , [ 18 Pac. 413 ], was involved the question of the power of the legislature exercised through the Whitney Act to establish police courts in incorporated cities. It was held that it had such power; that the Whitney Act was a valid exercise of it; that the legislature could classify municipal corporations according to population and pass general laws with reference to them irrespective of whether such corporations were formed before or after the constitution of 1879 and that the Whitney Act was a law of a general nature and uniform operation. The act of 1901 (p. 576), heretofore referred to, extending the classes of incorporated cities in which police courts were established and in which class the city of Oakland is embraced

It is to be observed, however, that while the Whitney Act . conferred jurisdiction on the police court established under it over all misdemeanors, no question of the power of the legislature to confer this jurisdiction was involved in the Henshaw case. The only question there was as to the validity of the Whitney Act in establishing the police court as such. The question of how far the legislature under the constitutional provisions which we have referred to could confer upon police courts in incorporated cities jurisdiction over misdemeanors was first presented in Green v. Superior Court, 78 Cal. 556 , [ 21 Pac. 307 , 541], decided in 1889.

That case has always been considered as deciding that the legislature had power to confer exclusive jurisdiction in such police courts over all misdemeanors, high or low. In the Green case the superior court of the city and county of San Francisco was proceeding in a criminal case where the charge was conspiracy and the defendant applied to this court for a writ of prohibition on the ground that jurisdiction in such a case was vested exclusively in the police court of the city and county of San Francisco. Conspiracy was then, as now, punishable by fine not exceeding one thousand dollars or by imprisonment for a year, or by both. It was a high misdemeanor, jurisdiction over which was invested in the superior court unless the legislature had validly conferred jurisdiction over it upon the police court of the city and county of San Francisco. While the old constitution of 1849 was in force and under what is known as the Consolidation Act, as amended in 1871-72, [Stats. 1871-72, p. 84], the police court of the city and county of San Francisco was by the legislature given jurisdiction of misdemeanors which in terms included criminal conspiracy. After the adoption of the present constitution, as pointed out in the opinion in the Green case, the same jurisdiction conferred on said police court by the Consolidation Act was reaffirmed by legislation. (Stats. 1881, p. 75; Stats. 1889, p. 64.) The particular act reaffirming it being the act of 1889, entitled “An act to establish a police court in and for the City and County of San Francisco.” The court in the Green case held that exclusive jurisdiction over the crime of conspiracy was vested in

It is insisted by the attorneys for petitioner here that when the Green case is carefully examined it will be perceived that it was decided on the theory alone that conspiracy was a misdemeanor “otherwise provided for” before the adoption of the present constitution of 1879 because jurisdiction over it had been conferred on the police court of the city and county of San Francisco by the statutory law of 1871-72, and being so provided for, by this legislation under the former constitution, it continued to be provided for after the adoption of the present constitution; that any language or discussion in that case which might appear to sustain the power of the legislature under the provisions of the present constitution to confer jurisdiction over all misdemeanors upon police courts in incorporated cities is dictum, and the existence of that power still open to question. Aside from this, it is insisted that if the Green case may be considered as deciding that the legislature has power to confer jurisdiction on such courts over all misdemeanors generally, it may not be taken to include the misdemeanor of criminal libel because of certain constitutional provisions which were not presented to or considered by the court in that case and which petitioner claims deny power to the legislature to confer jurisdiction on such courts over cases of criminal libel.

Without considering this last point at present, there is nothing in the other points made as to what was decided in the Green ease. It is true that in that decision the court referred to the jurisdiction conferred on the police court of the city and county of San Francisco by the Consolidation Act and said that the misdemeanor there involved was one over which jurisdiction had “already been provided for’.’ at the adoption of the present constitution and strictly within the letter of that constitution—a jurisdiction which as far as it related to this particular police court of San Francisco had not been changed since the present constitution was adopted. But it is not true that this was the theory on which the case was decided or made the basis of the decision. This mention of the Consolidation Act was only made in chronologically stating the legislation whereby jurisdiction had been conferred on the police court both before and after the adoption

It follows, therefore, that unless there is some merit in the other contentions of petitioner, now to be noticed, the legislature, under its authority to confer jurisdiction upon inferior courts over all misdemeanors, conferred such jurisdiction on the police court of the city of Oakland of the offense of criminal libel.

It is insisted by petitioner that criminal libel stands upon a different footing from the general class of high misdemeanors, and that by reason of certain constitutional provisions not presented or considered in the Green case, or any other case involving the jurisdiction of police courts over high misdemeanors, the legislature is precluded from conferring jurisdiction over it upon such a court.

The sections of the constitution thus relied on are section 8 of article 1 which provides that “offenses heretofore required to be prosecuted by indictment shall be prosecuted by information ... or by indictment . . and section 9 of the same article which, in guaranteeing liberty of speech and of the press, among other things provides that “Indictments

The claim under these sections is that the offense of criminal libel can be prosecuted only by indictment or information, and, as a consequence, can be tried only in the superior court. Taking the last constitutional provision invoked. Petitioner insists that this is a constitutional requirement that criminal libel shall be prosecuted by indictment or information. But it is nothing of the kind. This section has nothing to do with the finding of indictments or the filing of in-formations. It simply deals with the place where the trial shall be had when prosecution for libel is by indictment or information in that class of libels consisting of publications in newspapers. This was the sole purpose of this portion of the section.

Now as to section 8 of article I, relied on. Petitioner claims that at the time of the adoption of the present constitution criminal libel was one of the offenses required to be prosecuted by indictment, and that under the present constitutional provision cited, such offenses still are required to be prosecuted in that manner. The constitution of 1849 (sec. 8, art. I) provided that “no person shall be held to answer for a capital or otherwise infamous crime except ... in cases of petit larceny . . . unless on presentment or indictment of a grand jury.” When the present constitution speaks of “offenses heretofore required to be prosecuted by indictment” the rule of the old constitution is re-enacted and the same offenses as were required under it to be prosecuted by indictment are still required to be so prosecuted except to the extent that the procedure under the old constitution has been remodeled in the present one by permitting, in addition to indictment, the new procedure by information after examination and commitment by a magistrate. It may be said in passing that this same point now made under the section invoked was also made in the Green case with reference to the offense of conspiracy involved there and held to be untenable. Nor do we deem it any more applicable to the offense of criminal libel. It is true that at the time of the

Our conclusion therefore is that as criminal libel is not an infamous crime the constitutional provision relied on does not require a prosecution for that offense to be by either indictment or information.

It is further insisted by respondent that the former police court of Oakland originally created under the Whitney Act was abolished by the adoption of the charter of Oakland in 1911. The claim is that a freeholders’ charter created after the adoption in 1896 of sections 6 and 8% of article XI of the constitution—the one relative to “municipal.affairs” and the other authorizing such charters to provide “for the . . . jurisdiction of police courts”—eliminated “all special acts” or so-called “general acts” (as petitioner designates them), passed previous to said charter adoption and applying to police courts of cities. But the Whitney Act and the further act of 1901, vesting jurisdiction in police courts of cities of the second class, within which the city of Oakland is embraced, are not special acts nor so-called general acts but are, as declared in People v. Henshaw, 76 Cal. 436 , [ 18 Pac. 413 ], general laws. They do not interfere in “municipal affairs” which, as far as jurisdiction in police courts is concerned would apply only to the violation of municipal ordinances. Nor do they interfere with or control the proper exercise of such power as may have been conferred under section 8% of the constitution. These acts deal with state affairs; the prosecution of offenses under the state law, jurisdiction over which is thereby vested in such courts under general laws. The trial and punishment of such offenses is not a municipal affair. What section 8% means is that as to criminal offenses such as violations of municipal ordinances the framers of a charter have the exclusive right to provide for, but such a

The writ is dismissed and petitioner remanded.

Melvin, J., Angellotti, J., Sloss, J., Shaw, J., and Henshaw, J., concurred.