Opinion of the Court.

[No. 10,067.]

EX PARTE HENRY SIMPSON.

POLICE COURT OF SAN FRANCISCO.-The Police Judge's Court of the City and County of San Francisco, possesses the same powers and jurisdiction in criminal action and proceedings which are not specially defined in the Act creating such Court, as is or may be conferred by law upon Justices of the Peace or Justices' Courts.

IDEM.-The Act of February 13th, 1872, in relation to said Court, is not repealed by the Political Code.

POLITICAL CODE.-Sections eighteen and nineteen of the Political Code having been passed April 1st, 1872, may have a material bearing on Sections 4,478 and 4,479 of that Code.

JUDGMENT AND COMMITMENT FOR MISDEMEANOR.-Ex parte Murray, 43 Cal. 455, approved, as to a judgment and warrant of commitment of the Police Judge's Court of the City and County of San Francisco. TITLE 3, PART IV OF POLITICAL CODE. --Title 3, Part IV of the Political Code does not apply to any municipal corporations existing at the time it went into effect.

APPLICATION to be discharged on habeas corpus.

The prisoner was convicted of a misdemeanor under Section 330 of the Penal Code. He was sentenced to pay a fine of $1,000, and in default of payment, was ordered to be imprisoned in the county jail for 365 days. Having first made an application to the Judge of the Nineteenth Judicial District, and his petition having been heard and dismissed, the prisoner applied to the Supreme Court to be discharged from custody.

James Hardy and Creed Haymond, for Petitioner.

John L. Love, Attorney-General, and D. J. Murphy, District Attorney, contra.

By the COURT:

The question here presented, is whether the Police Judge's Court of the city and county of San Francisco, has jurisdiction to render a judgment on a conviction for a misdemeanor, that the defendant pay a fine of one thousand dollars, and in default of payment thereof, that he be im

Opinion of the Court.

The

prisoned in the county jail for the period of three hundred and sixty-five days. The offense with which the prisoner was charged is gaming, as defined by the Penal Code, Section 330. The punishment prescribed is a fine of not less than two hundred, nor more than one thousand dollars, and imprisonment in the county jail until the fine and costs of prosecution be paid, but not to exceed one year. offense is a misdemeanor, as defined by the Penal Code. The act of February 13th, 1872, amendatory of and supplemental to the act of 1864, to prescribe the jurisdiction of the Police Judge's Court of the city and county of San Francisco, after specially enumerating certain offenses, of which jurisdiction is conferred upon that Court, provides that "throughout said city and county" the Court or Judge shall have "the same powers and jurisdiction in other criminal actions and proceedings as are now or may hereafter be conferred by law upon Justices of the Peace or Justices' Courts." (Stats. 1871-2, p. 84.) The 117th section of the Code of Civil Procedure confers upon Justices' Courts jurisdiction of "all misdemeanors punishable by fine not exceeding $1,000, or imprisonment not exceeding one year, or by both such fine and imprisonment." The Police Judge's Court of the city and county of San Francisco, therefore, had jurisdiction of the offense of which the prisoner was found guilty, if the act of 1871–2, above mentioned, is in force.

The solution of the question depends upon whether that act was repealed by the Political Code. Counsel for the prisoner rely mainly upon Sec. 18, and Chap. 4, Title 3, Part 4 (Secs. 4,426-4,432), of the Political Code. The construction of Secs. 18 and 19 is not necessary to the decision of the question; but it may be remarked that those sections, as they now stand in the Political Code, were passed April 1st, 1872, and that they may have a very material bearing on Sections 4,478 and 4,479 of that code.

Title 3, Part 4, above mentioned, is intended as a system or plan under which cities may be organized and governed. That is the sole purpose of that Title, and it is not declared to be applicable to any existing city or city and county.

It

Argument for Petitioner.

is obvious, on even a cursory examination, that Sec. 4,426 is no more applicable to existing municipalities than a large part of the other sections in that Title; and that an attempt to give that Title effect in existing municipalities, without material changes in the laws, would produce inextricable confusion. We are of the opinion that the sections of that Title above referred to do not repeal nor in any manner affect the act of 1872, defining the jurisdiction of the Police Judge's Court of the city and county of San Francisco.

The judgment and warrant of commitment are valid and sufficient (ex parte Murray, 43 Cal. 455.)

The case is not in a condition for us to determine whether the prisoner, upon the payment of the fine, is entitled to be discharged from imprisonment. Ordered that the prisoner be remanded.

[No. 10,068.]

EX PARTE HARROLD.

RESIDENCE OF OFFICER AT COUNTY SEAT.-The failure of a County Treasurer to reside at the county seat of his county, as required by Section 4,119 of the Political Code, is not an "omission to perform any duty enjoined by law upon a public officer," within the meaning of Section 176 of the Penal Code, and is not made a misdemeanor.

PENAL CODE AS TO RESIDENCE OF OFFICERS.--Section 176 of the Penal Code, which makes a willful omission by an officer to perform a duty enjoined by law a misdemeanor, does not apply to conditions or qualifications upon which the incumbent's right to hold an office depends, but to duties pertaining to the office, while in the discharge of official duties.

APPLICATION to the Supreme Court for discharge on habeas corpus.

The facts are stated in the opinion.

Terry & McKinne, for petitioner, argued that the residence. required by the code is a condition or qualification merely -not an official duty, the neglect of which can be punished as a crime-and that therefore the County Court had no jurisdiction to punish the defendant, and cited Ex-parte Corryell, 22 Cal. 181.

CAL. REPS. XLVII—9.

Opinion of the Court.

Attorney-General Love and Creed Haymond replied that the conditions or qualifications required of an officer must be met before he is elected, and that Section 4,119 prescribes a duty, because it is something to be done by the officer after he enters upon his office.

By the COURT:

The prisoner, who is the County Treasurer of San Joaquin County, was indicted for "willfully omitting as a public officer to perform a duty enjoined by law upon him." The offense, as charged in the indictment, is his failure, during a specified period, to reside at the county seat of his county. He is now held in custody by virtue of a bench-warrant issued by the County Court, after having been tried and found guilty as charged in the indictment. The only question we shall consider, is whether the indictment charges the commission of a public offense.

It is provided by the one hundred and seventy-sixth section of the Penal Code, that "every willful omission to perform any duty enjoined by law upon a public officer or person holding any public trust or employment, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor." The Political Code (Sec. 4,119), provides that certain county officers, among whom is the County Treasurer, must reside at the county seats of their respective counties.

It is claimed on the part of the prosecution, that it is ăn official duty of the defendant, as the Treasurer of the County of San Joaquin, to reside at the city of Stockton, the county seat of that county. The duty enjoined by law, within the meaning of Sec. 176, Penal Code, is an official duty. It is an act to be performed by the incumbent of the office, in his official capacity. It is not a qualification or condition, which a person must possess in order that he may be eligible to, or continue to hold, an office. Should it be provided by competent authority that no officer should absent himself from the State for more than thirty days, or that he should not discharge the duties of his office after he

Points decided.

had attained the age of sixty years, those provisions would amount to conditions, upon which the incumbent's right to hold the office depended, but they would in no sense constitute official duties-duties pertaining to his office. Provisions to the effect that a person shall not be eligible to a particular office who is not of a designated age, or a resident or elector of the proper county, district, etc., are qualifications which he must possess in order that he may be eligible to, and hold, the office, but they clearly are not duties pertaining to the office. We are not called upon in this case, to express any opinion as to the power of the Legislature to impose upon a constitutional officer, a new or additional condition, affecting the tenure of his office or his right in any respect to hold the same; but it is sufficient in this case to say, that the neglect with which the defendant is charged by the indictment, is not the neglect of a "duty enjoined by law," within the meaning of Section 176, Penal Code. It is not claimed that the defendant is liable to punishment under any other section of the Penal Code. The indictment, in our opinion, does not charge any offense. The prisoner is, therefore, entitled to be discharged from custody, and it is so ordered.

[No. 10,070.]

EX PARTE C. H. LATIMER.

POWER OF JUSTICE TO PUNISH FOR CONTEMPT.-A Justice of the Peace may adjudge a party guilty of contempt who, on proceedings supplementary to execution, refuses to obey an order directing him to deliver to an officer property which he has, liable to execution, and may direct him to be imprisoned until he complies with the order.

IDEM.-In such cases the jurisdiction of Justice is not limited to a fine of one hundred dollars and one days imprisonment, for Section 1,219 of the Code of Civil Procedure applies to Justice's Courts,

APPLICATION to be discharged from custody on habeas corpus. The facts are stated in the opinion.

Mc Farland and Hopkins & Southit, for Petitioner.