In re Brady

This is an application for a writ of habeas corpus based upon the alleged illegal detention of petitioner by the sheriff of Los Angeles County, acting under an order of the superior court, in and for said county, committing petitioner for a contempt of said court.

It appears that in an action pending before one of the departments of the superior court sitting in the city of Long Beach, in accordance with an order made by the judge of said department, petitioner had been served with a subpoena duces tecum. Petitioner failed and refused to respond to the said subpoena and was thereafter brought before the court upon an attachment. Thereupon, the court adjudged petitioner guilty of a contempt in said matter, and sentenced him to pay a fine. In default of such payment he was remanded to the custody of the sheriff.

Petitioner attacks the jurisdiction of the superior court, basing his objection on the alleged uneonstitutionality of

It is understood that the city of Long Beach has a population of more than fifty thousand people, and that its city hall is located more than fifteen miles from the site of the county courthouse of Los Angeles County, being the county in which the city of Long Beach is situated.

With reference to the limitation on the power of the legislature to enact laws of the character of the act in question, the constitution provides

“All laws of a general nature shall have a uniform operation.” (Sec. 11, art. I.)

“The legislature shall not pass local or special laws . . . where a general law can be made applicable.” (Subd. 33, sec. 25, art. IV.)

“ . . . nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.” (See. 21, art. I.)

There is no constitutional provision which fixes either the time when or the place where the several superior courts shall sit, but section 73 of the Code of Civil Procedure provides that “they shall hold their sessions at the county seats of the several counties, or cities and counties, except as otherwise provided by section one hundred forty-two of this code, ’ ’ and which section, in addition to what has heretofore been set forth, authorizes the judge or judges of any county to change the location of the court when war, insurrection, pestilence, or other public calamity, etc., may render it necessary, or, in the discretion of the court, whenever necessary, or advisable, at any place in the county not less than 120 miles distant from the county seat. It is not contended that the session of the superior court sitting within the city of Long Beach comes within the terms of either of said ex

[1] The legislature having spoken as to the place at which sessions of the superior court may be held, the rule that the statement of one thing is the exclusion of another is applicable and permits no sessions of the superior court except as provided by the statute. (Whitener v. Balknap & Co., 89 Tex. 273 [ 34 S. W. 594 ]; Williams v. Reutzel, 60 Ark. 155 [ 29 S. W. 374 ]; Coulter v. Routt County, 9 Colo. 258 [ 11 Pac. 199 ]; Von Schmidt v. Widber, 99 Cal. 511 [ 34 Pac. 109 ]; Shepherd v. Superior Court, 54 Cal. App. 673 [ 202 Pac. 466 ]; Patton v. State, 160 Ala. 111 [ 49 South. 809 ] ; People v. McWeeney, 259 Ill. 161 [Ann. Cas. 1916B, 34, 102 N. E. 233 ]; Carter v. State, 100 Miss. 342 [Ann. Cas. 1914A, 369]; Rhodes v. Bell, 230 Mo. 138 [ 130 S. W. 465 ]; Shold v. Van Treeck, 82 Neb. 99 [ 117 N. W. 113 ].) Even in the absence of express statutory requirement that the sessions of the court be held at the county seat, it has been held that a universal practice to do so gave the practice the legality of positive law, and that an order of the court made while sitting at a place other than the county seat was void. (Board of Commissioners v. Gwin, 136 Ind. 562 [ 22 L. R. A. 402 , 36 N. E. 237 ].)

If it be determined that the law here under consideration is general in its nature and that it has a uniform operation, necessarily it is not a special law. [2] At various times the supreme court of this state has announced the rule in substance that in order that a statute be a general law it is not necessary that it apply to all the people in the state, but if it -affect all individuals falling within a proper classification of them the constitutional requirement is met. (Pasadena v. Stimson, 91 Cal. 251 [ 27 Pac. 604 ]; McDonald v. Conniff, 99 Cal. 386 [ 34 Pac. 71 ] ; Darcy v. Mayor of San Jose, 104 Cal. 642 [ 38 Pac. 500 ]; Deyoe v. Superior Court, 140 Cal. 476 [ 98 Am. St. Rep. 73 , 74 Pac. 28 ]; Title etc. Restoration Co. v. Kerrigan, 150 Cal. 289 [ 119 Am. St. Rep. 199 , 8 L. R. A. (N. S.) 682 , 88 Pac. 356 ]; Ex parte King, 157 Cal. 161 [ 106 Pac. 578 ].)

The statute here does not purport to affect all the people, nor all the counties of the state, but concerns counties of the first class only; and a proper inquiry in that regard is

[4] It is apparent at the most superficial investigation of the statute that it is not general in the sense that it directly affects all of the people of the state. If it at all comes within a requirement that laws of a general nature shall have a uniform operation, it must be because of its applicability to a class. In this respect the act provides that it shall be effective “in counties of the first class,” thereby segregating one class of counties from each and all of the other classes of counties of the state and making the proposed law operative in one class of counties only. The act provides an additional classification in that it applies, first, as to cities of not less than fifty thousand population; and, secondly, to such cities of such population only whose city halls are over fifteen miles distant from the site of the county courthouse.

But it is contended that there is no authority vested in the legislature to classify counties by population, excepting for the sole purpose of establishing the compensation and fees of county officers. (Sec. 5. art. XI, Const.) For such purpose the legislature has by other statutes brought about such a classification. It has said (sec. 4006, Pol. Code) that counties containing a population of five hundred thousand persons and over shall belong to and be known as counties of the first class; that counties containing a certain lesser population shall be counties of the second class, and so on down through the list of counties of the state, giving to each group a designated classification. The court may take judicial notice of the fact that Los Angeles County is the only

“There can be no question that the act is local and special, since, by its terms, it is to ‘apply to, take effect in, and be in force only in counties of the first and second classes, ’ that is to say, in San Francisco and Los Angeles. (Stats. 1895, sec. 26, p. 218.)

“The Constitution allows the classification of counties according to population for the purpose of regulating the compensation of county officers in proportion to their duties (Const., art. XI, see. 5), and for that purpose a classification has been established under which San Francisco falls into the first class and Los Angeles falls into the second class. But the fact that these and the other counties of the state have been classified for a purpose which the Constitu

In the case of Welsh v. Bramlet, 98 Cal. 219 [ 33 Pac. 66 ] the court was considering the constitutionality of certain sections of the County Government Act of 1891, which provided that the assistants of district attorneys of counties in the eighth class should be paid by the county, and the court said, in part: “The legislature has not the general authority to enact laws for the counties by classes, nor is it authorized to make a classification of counties for any purpose of legislation, except for the purpose of enabling it to regulate the compensation of the county officers for whose election or appointment it shall provide. (San Luis Obispo Co. v. Graves, 84 Cal. 71 [ 23 Pac. 1032 ].) Whenever it attempts to enact a law for one or more of the counties of the state upon subjects that it is directed to provide for by general laws, or which are to form part of a uniform system fon the whole state, whether such counties are designated directly by name, or by reference to a class into which they have been placed for other subjects of legislation, it infringes these provisions of the Constitution. We must take judicial knowledge that there is only one county in the state whose population places it in the eighth class, and if an act is passed by the legislature that is applicable to only one county in the state, it does not cease to be a local act by reason of the fact that it purports to be applicable to a

The legal propriety of legislation of the character here in question is commented upon in the case of Turner v. County of Siskiyou, 109 Cal. 332 [ 42 Pac. 434 ], where the court was considering the constitutionality of an act which provided that in counties of the twenty-eighth class alone every person subpoenaed as a witness in a criminal case should be entitled to the same per diem and mileage as jurors in a like case. The court said, in part: “This provision is clearly unconstitutional and void. It does not apply to counties of any other class. . . . The difficulty is not removed by the fact that the counties are classified, and that the provision applies to all counties of a certain class; because, under section 5 of article XI, counties may be classified only for the purposes of regulating the compensation of certain public officers therein enumerated. . . . The provision in question in the case at bar is local and special, because it is not in force in all parts of the state, and does not affect equally either all the'people, or all individuals of a class.” And, to the same effect, see Bloss v. Lewis, 109 Cal. 493 [ 41 Pac. 1081 ], San Luis Obispo v. Graves, 84 Cal. 71 [ 23 Pac. 1032 ], Payne v. Murphy, 18 Cal. App. 446 [ 123 Pac. 350 ].

The act does not conform to the constitutional requirements of a general law, either as affecting the entire state or as applied to a class, for the reason that the class designated by the statute, although not expressly forbidden by the provision of the constitution, is impliedly excluded for any purpose other than that of regulating the compensation and fees of county officers. Paraphrasing a part of the language 'used by Chief Justice Beatty in Marsh v. Supervisors, supra, there can be no question that the act which we are here considering is local and special, since, by its terms, it applies to, takes effect in, and is expected to be in force only in a county of the first class; that is to say (as is pointed out in Pratt v. Browne, supra), in the county of Los Angeles.

A strictly general law, according to the constitutional provision, must have a uniform operation. It is permitted to depart from that requirement as to every individual or class in the state only when the subject matter of the act is based

It has been intimated that the reason for the enactment of the statute within the intent of the legislature may have been, first, that of facilitating the dispatch of business of the courts to the end that justice might be speedily administered; and, secondly, that of conveniencing witnesses, litigants and lawyers in the locality to be served. No other reasons for the passage of such a law as the one before the court are readily observable. True, there may be other reasons, but none other have been suggested by learned counsel, nor has this court been able to discover them; hence it may be fair to assume that they do not exist. It is feared, however, that the first reason is not altogether sound. The fact that litigants may have only a short distance to travel for the purpose of attending court does not enable the court to handle the business before it more expeditiously. The court can transact exactly the same amount of business regardless of the inconvenience, if any, suffered by the litigants, witnesses and lawyers in reaching the courthouse. But it is undoubtedly true that a proximity to the courthouse by those who may have litigation would be a great accommodation and a great saving of time, so far as they may be personally concerned. The evident purpose of the act was to provide for a city having a population of fifty thousand or more people whose city hall was so far distant from the site of the county courthouse that, considering transportation facilities and congestion of traffic, the necessity of the inhabitants of such city

The final question is whether or not a general law could have been made applicable. It is plain that the attempted classification is not one authorized by the constitution. The fact that a large number of citizens of the state might be greatly accommodated by reason of having a superior court in their vicinity presents no satisfactory reason for classification denominated either natural or intrinsic. Certainly every other community in the state, whether composed of fifty thousand people or five hundred people, would be proportionately convenienced by the same arrangement. The attempted classification is not real; it is purely arbitrary; and not based upon any substantial ground. In addition thereto, it would seem that the constitutional provision (sec. 21, art. I), which forbids that any citizen or class of citizens shall be granted privileges which, upon the same terms, shall not be granted to all citizens, is violated. In the case of Mordecai v. Board of Supervisors, 183 Cal. 434 [ 192 Pac. 40 ], the court was considering the constitutionality of an act which provided for the formation of irrigation districts in all counties of the state except in counties which had adopted a freeholders’ charter prior to June 4, 1915. It appeared that there were but two counties in the state which had

Paraphrasing the language just quoted, the following question is also pertinent: If the establishment of a superior court in a city of fifty thousand, located fifteen miles or more from the county seat of the county of Los Angeles, be considered as a privilege, what reason is there why cities of the same size and similarly located in other counties of the state should not enjoy that privilege when such cities in Los Angeles County may do sol And, as is said in the Mordecai case, we can see no sufficient anwer to these questions, or to the objection involved in them that the exception from the applicability of the act of other counties in the state destroys

The case of People v. Mullender, 132 Cal. 217 [ 64 Pac. 299 ], is illustrative of the point. Under the act of March 18, 1889 (Stats. 1889, p. 305), a board of state harbor commissioners was established for the bay of San Diego and the question of the legality of that act was before the court for its determination. The court said: “That the act here in question is both local and special is conceded. But that is not conclusive. The language of said paragraph (referring to the constitutional provision) plainly implies that there are or may be cases where a local or special act may be wise, salutary, and appropriate, and in no wise promotive of those evils which result from a general and indiscriminate resort to local and special legislation. The Constitution submits the question, whether a general law can be made applicable in any given case, to the judgment of the legislature, to be determined in the light of the evils intended to be avoided,

It will, however, be noted that the courts have not abdicated the power of final determination. The right to investigate and to review the facts is still retained, and where it is shown that no sufficient reason appears for the implied declaration by the legislature that in the passage of a special law a general law could not have been made applicable, the courts unhesitatingly exercise their rightful prerogative of pronouncing the statute unconstitutional. The language of the statute affecting the point is “that in counties of the first class at least one session of the superior court shall be held in each city of said county containing a population of fifty thousand,” etc. It is obvious that the statute might have provided that “in each of the counties of this state” a session of the superior court shall be held, etc. The possibility of drawing a law which would be general in its nature, instead of a special and local law, as the statute now presents itself, is demonstrated by another clause of the same statute, which provides that “whenever such judge or judges (of the superior court) deem it necessary or advisable” they may ' ‘ direct that the court be held or continued at any other place in the city and county, county, city, or town not less than one hundred twenty miles distant from the county seat.” That particular part of the statute is general in its nature. It operates as to each county and as to the superior

In the case of Coulter v. Routt County, 9 Colo. 258 [ 11 Pac. 199 ], a state of facts arising from circumstances similar to those here, with a constitutional provision identical with ours, was under consideration. The Colorado court held the act unconstitutional and, in passing upon the question whether or not a general law could have been made applicable, among other things, said: “That the permanent location for the holding of the district courts in the counties of the state can be fixed by general laws has been demonstrated by the acts of the legislature itself, during a long term of years, which acts overcome all presumptions that a departure is necessary in the case of a single county.” The same thing is evident here. There was a clear and palpable disregard of the constitutional requirement. The conclusion is therefore reached by this court that that part of the act here under consideration is special and local; that it is not uniform in its operation; that is confers special privileges upon a class of citizens, which, upon the same terms, are not granted to all citizens, and that a general law could have been made applicable.

It follows that the petitioner is entitled to be discharged. It is so ordered.

Conrey, P. J., and Curtis, J., concurred.