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a final order affecting a substantial right. , order, and therefore not appealable. To the State v. O'Day, 41 Or. 195, 69 Pac, 512, and same effect are Bossler v. Johns, 2 Pen. & (itses cited. Counsel for defendant insists, W. (Pa.) 331; Welch v. Allen, 54 Cal. 211; howerer, that, the demurrer to the complaint Ilall v. Vanier, 7 Neb. 397; Grant v. Los of Sears being sustained, the substitution of Angeles & Pac. Ry. Co., 116 Cal. 71, 47 Pac. the state by the amendment is the commence- 872. In Chicago, K. & W. Ry. Co. v. Butts, ment of a new suit, and that the order was supra, it is held that the order of substitufinal as to the Sears complaint or suit. Yo tion was error, but not appealable, and it authorities are cited by defendant in support was reviewed upon the appeal from the final of his position. Whether the amendment is judgment. If the order of the court was one authorized by the statute is not the ques- made in a matter beyond its jurisdiction or tion, but whether the court lost jurisdiction in relation to a matter of which it had not of the defendant by the substitution. The acquired jurisdiction, then it might be apeffect of the amendment is to eliminate Sears pealable; as to the adverse party to that because he was not a necessary or proper proceeding it would be final. But error in party, and it is final as to him ; but the de- an interlocutory order within the jurisdicfendant is claiming no relief against him, tion is not sufficient to render it void or and is not affected thereby. Granting leave operate as a final order. In Hume v. Bowie, to plaintiff to amend his pleading is within 118 U. S. 215, 252, 13 Sup. Ct. 582, 581, 37 the power of the court, and, even though such L. Ed. 438, the court had before it a question power was exercised erroneously, yet the or- involving the same principle. In that case a der is not void. The action of the court in motion was made to vacate a decree rensustaining the demurrer to the complaint dered at a previous term and to grant a new did not terminate the jurisdiction of the trial, which motion was allowed by the court court. B. & C. Comp. $ 101, provides: “If below. It was insisted by respondent that the demurrer be sustained, the court may in the order was not final, and therefore not its discretion allow the party to amend the appealable. Mr. Chief Justice Fuller says: pleading demurred to.” Id. § 102, provides: "This case comes before us on a motion to The court may, at any time before trial, in dismiss the writ of error for want of jurisfurtherance of justice,

allow any diction, upon the ground that the judgment pleading 本 *

* to be amended by adding brought here by the writ is not a final judg. the name of a party, or

* by strik- ment.

The question involved is one ing out the name of any party." While the of power, for if the court had power to make (ourt has jurisdiction of the case, the order the oriler, when it was made, then it was allowing the anendment is one within its not a final judgment, as it merely vacatel jurisdiction, even if erroneous.

the former judgment for the purpose of a new At the hearing counsel argued this motion trial upon the merits of the original action. upon the merits of the appeal, on the theory If the court had no jurisdiction over that that, if the order allowing the substitution juyment, the order would he an order in a was error, then it is appealable: but we may new proceeding, and in that view final anal not decide the merits upon this motion. If, reviewable." And in Bronson v. Schulten, in determining the motion to dismiss the ap- 104 '. S. 410, 26 L. Ed. 727, the same idenpreal, it is necessary to determine the merits tical question arose, in which it was helil as to the substitution, then this motion must that, if there was no jurisdiction, then the be deniedl. Whether the order was error or order was final; otherwise. not. In Philnot, it is not appealable, unless it terminates ipps v. Vegley, 117 C. S. 60.5, 671, 6. Sup. or disposes of defendant's rights in the sub- Ct. 201, 2013, 29 L. Ed. 1013, it is held: "If, ject of the suit. Many courts have discussed properly considered, the order in question the right to suc substitution, usually brought was an order in the cause, which the court to the appellate court upon the appeal from had power to make at the term when it final judgment, and it was always treated as Was malle, the consequence may be admittel a matter within the jurisdiction of the court, that no appellate tribunal has jurisdiction to and not affecting the merits. Such are the question its propriety. * * The vacatfollowing cases: Davis 1. Mayor of New ing of a judgment and granting a new trial, York, 11 X. Y. .506, 07 Am. Dec. 180: Dubbers in the exercise of an acknowledged jurisdier1. Goux, .71 Cal. 1.33; Vinegar Bend Lbr. Co. tion, leaves no judgment in force to be reV. Chicago T. & T. Co.. 30 South. 776, 131 viewed. If, on the other hand, the order A la. 411 (cited by defendant on the merits); made was made without jurisdiction on the Johnson v. Martin, .54 Ala. 271; Campbell & part of the court making it, then it is a proZell Co. v. Barr Pumping Eng. Co., 182 Mass. ceeding which must be the subject of review 304, 6.) X. E. 3990; Wells v. Stombock, 59 by an appellate court." The same is hele Iowa, 376, 13 N. W. 3:39; McCall et al. T. in Deering v. Quivey, 26 Or. 350, 38 lac. 710. Lee, 120 Ill. 201, 11 X. E. .22; Lake Erie & Although these cases all relate to motions to West. Ry. Co. v. Town of Boswell, 1:37 Ind. Vacate judgments, they determine what (on. 336, 36 X. E. 110:3; and many other cases stitutes a final or appealable order. How might be 'ited. In (Chicago, K. & W. Ry. Co. can it be said that an order is final when it v. Butts, .5.7 Kan. 00:0, 41 Pac. 948, it is held does not terminate the suit or in any manner that an order of substitution is not a final end the litigation as to the subject matter or as to defendant? An order that may be as to all matters which the Constitution audeemed a decree is defined in B. & C. Comp.

thorizes to be provided for therein, and are ex

empt from any control by any subsequent act 8 547, supra, as one "which in effect deter

of the Legislature. mines the action or suit so as to prevent a

3. SAME-CITIES OF FOURTH CLASS. judgment or decree therein"; but no such

Under Const. art. 11, § 842, being an effect results from this order. Mr. Chief amendment adopted November 3, 1896, providJustice Moore, in Marquam v. Ross, 47 Or. ing that it shall be competent in all charters

formed under the authority of Const, art. 11, 375, 78 Pac. 698, 83 Pac. 852, 86 Pac. 1, re

§ 8, to provide for constitutional regulation, views the Oregon cases as to what are final

government, and jurisdiction of police courts, orders, and construes B. & C. Comp. 8 517, and for the compensation, etc., of judges there supra, and concludes: “It will be seen that

of, the provisions of Code Civ. Proc. $ 103, the original adjudication of the right involved

requiring a city of the fourth class to furnish

the city justice of the peace a suitable office within the issues is the judgment or decree in which to hold his court, does not apply to a from which an appeal lies.” In State v. city of the fourth class whose charter provides Security Savings Co., 28 Or. 410, 417, 43

for a police court, Pac. 162, it is held that, where the right to

Sloss, J., dissenting. the relief sought is determined, it is final

In Bank. Mandamus by George B. Graand appealable. “An order or decree is final

ham against the mayor and board of trustees for the purposes of an appeal when it de

of the city of Fresno. Application denied. termines the rights of the parties, and no further questions can arise before the court

Geo. B. Graham, in pro. per. D. S. Ewing rendering it except such as are necessary to

(Frank Karke, of counsel), for defendants. be determined in carrying it into effect.” In Basche v. Pringle, 21 Or. 24, 26 Pac. 863, ANGELLOTTI, J. The city of Fresno is Mr. Justice Bean says an appealable judg., a city organized under a freeholders' charter ment "is one which concludes the parties as framed and adopted under the provisions of regards the subject-matter in controversy section 8, art. 11, of the Constitution of in the tribunal pronouncing it.

this state, and approved by the Legislature From these authorities it is clear that, on January 28, 1901 (St. 1901, p. 832, c. 9). if the ruling bad the effect to finally termi- According to the federal census of 1900 it nate defendant's rights or interest in the sub- has a population of more than 10,000 and ject of the suit, it was final as to him, eren less than 15,000, and therefore, if we assume though it did not determine the merits of the that the provisions of the general classificase, or if it was made without jurisdiction; cation act, as amended March 5, 1901 (St. that is, in a case or as to matter not within

1901, p. 94), apply, it is a city of the fourth the power of the court it would be final, even class within the meaning of section 103, though only an interlocutory order.

Code Civ. Proc. Its charter provides for a In this case the defendant's rights are not court to be known as the “police court of concluded by the ruling. Neither is the the city of Fresno"; the same to consist of order one made without jurisdiction, and the one judge to be elected at the general municappeal is premature, and must be dismissed. | ipal election, who shall receive a salary from

and be furnished with a courtroom by the

city, which court shall have exclusive juris(151 Cal. 465)

diction in all prosecutions for violations of GRAHAM 7. MAYOR AND BOARD OF

city ordinances and actions for the recovery TRUSTEES OF CITY OF FRESNO.

of fines, etc., and the enforcement of obliga(S. F. 4,762.)

tions or liabilities created by the city ordi(Supreme Court of California. July 1, 1907.) nances, and, within the city limits, concur1. JUSTICES OF THE PEACE - AUTHORITY rent jurisdiction with township justices' CONSTITUTIONAL AND AND STATUTOBY PROVI.

courts in all matters wherein said justices' BIONS. The amendment to Const. art. 11, 1 6,

courts may have jurisdiction. Sections 61, adopted November 3, 1896, inserting "except in 61, 62, 68, 200, 221, Charter. Under these municipal affairs," in the provisions that cities provisions, a police court has been establishand towns and all charters thereof adopted by authority of the Constitution shall be subject to

ed and is now being maintained in the city; and controlled by the general laws and Consti

one H. F. Briggs being the judge thereof. tution, and Const. art. 11, $ 84, being an The city of Fresno constitutes a portion of amendment adopted November 3, 1896, provid

the third judicial township of the county of ing that it shall be competent for all charters Fresno. At the general state election beld formed under the authority given by Const. art. 11, § 8, to provide for the constitution,

November 6, 1906, the plaintiff, George B. jurisdiction, etc., of police courts, the manner, Graham, was elected "city justice of the time, and terms for which the judges thereof

city of Fresno," and qualified in the manner shall be elected or appointed, and for the compensation of the judges, etc., do not affect the required of justices of the peace. He claims power of the Legislature to provide for justices'

that it is the duty of the defendants to furcourts in cities and towns as part of the state nish him, as such city justice, with a suitsystem of justices' courts.

able office wherein to hold his court. De2. MUNICIPAL CORPORATIONS – LEGISLATIVE

fendants have refused to comply with his CONTROL-CONSTITUTIONAL PROVISION. Under Const. art, 11, $ 6, as amended, the

demand in this regard, and plaintiff has inprovisions of freeholders' charters are supreme stituted this proceeding to obtain a peremptory writ of mandate compelling such com- pel the city authorities to furnish such a pliance.

city justice, elected at a general state elecPlaintiff's claim is based on section 103, | tion, with a suitable office. In Jenks V. Code Civ. Proc.; the general section provid- | Council, supra, a similar writ was granted ing for justices' courts, their number in requiring the payment of the salary of such townships and cities, their election, etc. a justice from the city treasury. In Coggins That section, after providing for the justices v. City of Sacramento, supra, an action by of townships, to be elected at a general state a city justice against the city for salary and election, provides that: "In every city or office rent, was sustained, and by People v. town of the third and the fourth class there Sands, supra, and People v. Cobb, supra, it must be one justice of the peace,

was thoroughly established that such justo be elected in like manner by the electors tices are to be elected in the same manner of such cities or towns respectively.” It fur- as other justices of the peace, at a general ther provides that such justice of the peace state election, and that vacancies in the of cities or towns shall have the same ju- oflice are to be filled in the manner prescribed risdiction, civil and criminal, as justices of by the state law. It was further established the peace of townships, and also jurisdiction that a police court created by the provisions of all proceedings for the violation of any of a freeholders' charter was not a court ordinance of a city, and all actions for the created by the Legislature, and therefore recovery of any licenses required by any that it was not competent to provide thereordinance of the city, and shall exercise all for in such a charter. People v. Toal, 85 powers, duties, and jurisdiction, civil and Cal. 333, 24 Pac. 603; Ex parte Ah You, 82 criminal, of "police judges. judges of the po- Cal. 339, 22 Pac. 929; People v. Sands, supra. lice court, recorder's court, or mayor's court Defendants' claim is that by reason of cerwithin such city.” It further provides that tain constitutional amendments made in the every city justice of the peace in any city or year 1996, not only is the charter provision town of the fourth class shall receive as his for a police court of the city valid and sole compensation a salary of $1,500 per an- eff ectual, which is admitted, but that the num from the salary fund of such city or provision of section 103 of the Code of Civil town, and shall be provided by the city au

Procedure for a city justice of the peace thorities with a suitable office in which to cannot be held applicable, and especially hold his court, and requires him to pay into that the provisions of said section for the the city or town treasury all fees chargeable | payment of a salary to such justices from by law for services rendered by him.

the city treasury and the furnishing of an Prior to the adoption of certain consti- office at the cost of the city are without tutional amendments in 1896, it was es- force as to said city. The constitutional tablished that, by reason of section 1, art.

amendments relied on are: First, the mu6, providing that the judicial power of the nicipal affairs amendment of section 6, art. state shall be vested in certain courts there- 11; and, second, Section 814 of article 11. in named, "justices of the peace, and such

The latter section adopted November 3, 1896, inferior courts as the Legislature may es

so far as applicable, is as follows: “It shall tablish in any incorporated city or town, or

be competent in all charters framed under city and county," section 11 of the same

the authority given by section eight of article providing that the Legislature shall

article eleven of this Constitution, to provide, determine the number of justices of the

in addition to those provisions allowable peace to be elected in townships, incorporat

by this Constitution, and by the laws of the ed cities or towns, or cities and counties, and

state, as follows: (1) For the constitution, shall fix by law the powers, duties, and re- regulation, government, and jurisdiction of sponsibilities of such officers, and section 13 police courts, and for the manner in which, of article 6 providing that the Legislature

the times at which, and the terms for which shall fix by law the jurisdiction of any in- the judges of such courts shall be elected or ferior courts which may be established in appointed, and for the compensation of said pursuance of section 1 of the article, and

judges and of their clerks and attaches." fix by law the powers, duties, and responsi

We «unot find in subdivision 1 of section bilities of the judges thereof, the whole mat- 81% of article 11 any intention to interfere ter of the establishment and regulation of with the power of the Legislature in the matjustices and other inferior courts in cities ter of provision for justices of the peace for and towns, and the compensation of the cities and towns. That subdivision is limjudges thereof, was in the hands of the ited in terms to “police courts,” and there Legislature, and that such laws as section is no mention whatever therein of justices of 103, Code Civ. Proc., constituted a valid the peace or justices' courts. The term "poexercise of the legislative power. People v. lice court” ordinarily refers to an inferior Cobb, 133 Cal. 74, 65 Pac. 325; People v. municipal court with a limited jurisdiction in Sands, 102 Cal. 12, 36 Pac. 401; Coggins v. criminal cases only, a court with the power City of Sacramento, 59 Cal. 599; Jenks V. to try certain misdemeanor cases arising Council, etc., 58 Cal. 376; Bishop v. Council, from the violation of state law or municipal etc., 58 Cal. 372. In Bishop v. Council, su- ordinance, and with the power to conduct pra, a writ of mandate was granted to com- preliminary examinations in cases of felony and certain misdemeanors, and to hold de- 10 effectual provision for any court could fendants to answer for trial for the same, be made in such a charter. The city justice and does not include the justices' courts es- of the peace established by the Legislature tablished by our law. The term should prob- has always been given, in addition to the ably be here construed to also include such ordinary jurisdiction of a justice's court, the inferior courts as may properly be held to power and jurisdiction of an ordinary police be purely municipal, though given by the court of a city, the expense of maintenance state certain jurisdiction in state as distin- of which has always been considered a propguished from municipal matters, courts com- er charge on the city, and his office thus paring within the class specified in the Constitu- took of the character of both a county and tion as "such inferior courts as the Legis- township office and a city office. People v. lature may establish in any incorporated city | Sands, supra; People v. Cobb, supra. The or town or city and county," such as a city Legislature having had, prior to the amendrecorder's court or a mayor's court. See Ex ments, the sole power to provide such a police parte Soto, 88 Cal. 624, 626, 26 Pac. 530. But court in a city or town, also had the power the city justice of the peace provided for by to provide for the maintenance of the same section 103, Code Civ. Proc., does not come by the city or town, and the city justice's within this (ategory. People v. Sands, supra; court being the court invested by the Legis. People v. Cobb, supra Justices of the peace lature with that jurisdiction, and thus, in are part of the constitutional judicial sys- effect, made also a city police court, the Legtem of the state, having concurrent juris- islature was authorized to require the exdiction with superior courts in certain mat- pense thereof to be borne by the municipaliters expressly given by the Constitution (sec- ty. tion 11, art. 6, Const.), and also having such The effect of subdivision 1 of section 842 jurisdiction in civil and criminal cases as is of article 11 was to make the matter of such given by the general laws of the state to all police courts purely a municipal affair as to justices of the peace. In this regard there is any freeholders' charter city which subseno distinction whatever between township quently made appropriate provision in its and city justices. See cases last cited. A charter for such court. It confided the subcity justice is simply a part of this general ject-matter of such courts, and the election state system, elected for a certain subdivision and compensation of the judges thereof, to thereof. It is immaterial in this connection any such city desiring to assume, and asthat the Legislature has attempted to confer suming, control thereof, just as, by the same upon city justices an additional jurisdiction section, the matter of fixing the compensain matters peculiar to the city, such as cases tion of county officers in consolidated cities arising from violations of municipal ordi- and counties was confided to the city and nances, etc. The Constitution in terms pro- county to be provided for in its freeholders' vides that the Legislature shall determine charter. Such jurisdiction could not coexist the number of such justices of the peace to in both the Legislature and the city, and the be elected in townships, incorporated cities provision for the assumption of such jurisdicand towns, or cities and counties, and shall tion by the city necessarily contemplated the fix by law the powers, duties, and responsi- removal of the same from the Legislature. bilities of such office. Section 11, art. 6. In whenever the jurisdiction was assumed by view of the explicit provisions of the Consti- the city. Any act of the Legislature relative tution as to justices of the peace for cities to such subject-matter would necessarily be and towns, as well as townships and cities inconsistent with a charter provision in reand counties, and the decisions of this court gard to the same subject-matter. As to such in regard thereto, it is inconceivable that matters as the Constitution authorizes to be this amendment, limited in terms to police provided for in freeholders' charters, the procourts, was intended to trench in the slight- visions of the charter are supreme. superest degree upon the power of the Legislature seding all laws inconsistent therewith (secto provide for justices' courts in cities and tion 6, art. 11, Const.), and being exempt from towns as part of the general state system of any control by any subsequent act of the Legjustices' courts, and we cannot give it any islature. such effect.

For a city maintaining a police court under It does not follow, however, that the pro- valid provisions in that behalf in its freeholdvisions of section 103, Code Civ. Proc., as to ers' charter, the Legislature, therefore, no the payment of the salary of such a city | longer has the power to provide such a court. justice from the municipal treasury, and the While it still has the power to provide a jusfurnishing to him of an office by the munic- tice's court for any such city as part of the ipality, will be held valid as to a city having general state system of justices' courts, it no a police court established under a valid char- longer has the power to make such court also ter provision. The decisions heretofore cited a city police court, maintainable at the exsustaining the statutory provisions in that pense of the city. This would be, in effect. behalf were all cases decided prior to the the same thing as providing a separate poadoption of the constitutional amendments, lice court for the city, to be maintained at the and at a time when, as we have already seen, expense of the city. Any provision or that character would be an Invasion of the juris- on the city the expenses of any justice's diction of the municipality, and inconsistent court created by general laws. Whether, in with the charter provision regarding the sub- any case, the expenses of such justice's court ject-matter of city police courts, as to which created under article 6 of the Constitution, the plain object of the constitutional provi- could be imposed upon' a city operating under sion was to vest entire control in any free a special charter, is a question not decided, holders' charter city electing to assume such and one which does not necessarily arise in control, and to free any city so doing from this case. legislative control in that regard. As to such cities, the city justice of the peace provided I concur: BEATTY, C. J. by section 103, Code Civ. Proc., must be held to be the same in all respects as a township

SLOSS, J. I dissent, and think the writ justice, simply a county or township officer

should issue. In my opinion, neither of the performing no municipal functions whatever.

amendments of 1896 to article 11 of the ConThe Legislature is not empowered to direct

stitution affects the rule declared in Bishop the appropriation of municipal funds for the

v. Council, 58 Cal. 572, and Jenks v. Council, payment of the salary or office expenses of

58 Cal. 576. one who is simply a county or township officer. Municipal funds can be appropriated,

(151 Cal. 474) under our system, only for municipal pur

CITY OF REDLANDS et al. v. BROOK, City poses. Conlin v. Board of Supervisors, etc., 114 Cal. 404, 46 Pac, 279, 33 L. R. A. 752.

Treasurer. (S. F. 4,775.) The only ground upon which the decisions

(Supreme Court of California. July 1, 1907.) heretofore cited upbolding the provision for

1. MUNICIPAL CORPORATIONS-POWER TO I8the payment of salaries and office expenses

SUE BONDS-LIGHTING STREETS.

Municipal Incorporation Act 1883 (St. 1883, of city justices by municipalities can be sus- p. 269, c. 49), 8 862, empowers municipal cortained is that such justices, under the law porations to lay out, alter, improve, etc., streets then in force, in addition to being justices of

and other public highways and to drain and the peace with the same jurisdiction as town

light them, etc. Section 866. (page 271) pro

vides that municipal corporations of the sixth ship justices, were also city police judges, class may incur a bonded indebtedness whenperforming municipal functions. See People ever the board of trustees shall deem it necesV. Sands, supra; People v. Cobb, supra. As

sary to supply a deficiency in the funds ap

plicable to the payment of any expense which we have seen, such is no longer the situation

they are empowered to incur. Held to give a in a city having a police court established city power to issue bonds to meet the expense under valid provision therefor in its free- of purchasing electric lighting for streets from holders' charter.

a private company and of maintaining the

streets and public places. We are therefore of the opinion that the

2. SAME-EFFECT OF CURATIVE STATUTES. provision of section 103, Code Civ. Proc., re- Act March 4, 1907 (St. 1907, p. 104, c. quiring a city of the fourth class to furnish 80), to legalize bonds to be issued and sold by the city justice of the peace with a suitable

municipalities where authority for such issuance office in which to hold his court, cannot now

had already been given by a vote of more than

two-thirds of the electors, operates to legalize be held applicable to the city of Fresno. such an issue of bonds by a city, although the The application for a peremptory writ of

act under which they were issued had been mandate is denied.

repealed by implication,

[Ed. Note.-For cases in point, see Cent. Dig. We concur: McFARLAND, J.; HENSHAW,

vol. 36, Municipal Corporations, $ 1951.] J.; LORIGAN, J.

3. CONSTITUTIONAL LAW – CURATIVE STATUTES-POWER OF LEGISLATURE.

In the absence of constitutional restricSHAW, J. I concur in the opinion of Jus- tions, the power of the Legislature to validate tice ANGELLOTTI. I wish to say, however,

past transactions which it could have author

ized in advance is restrained only by the necesthat I do not understand that opinion to hold

sity of protecting vested rights. that when a freeholders' charter has created

[Ed. Note.-For cases in point, see Cent. Dig. a police court, and vested in it jurisdiction vol. 10, Constitutional Law, $ 536.) over offenses against city ordinances and 4. STATUTES SPECIAL LAWS CURATIVE suits to collect city license taxes, or any oth- STATUTES. er jurisdiction that could be vested in such

An act to legalize bonds to be issued and

sold by municipalities, which embraces all mupolice court, such provisions of the charter

nicipal corporations and every case in which would have the effect of preventing the Leg- not less than two-thirds of the electors voting islature from vesting the same jurisdiction at a special election called for the purpose have in a justice's court created by general laws

approved the proposed issue of bonds, is not a

special law within Coust. art. 4, § 235subds. 14, under the provisions of article 6 of the Con

18, forbidding special laws giving effect to invalid stitution, or that such charter provisions instruments, or legalizing except as against the would at all affect the jurisdiction of any

state the unauthorized or invalid act of an such justice's court, whether theretofore or

officer.

[Ed. Note.-For cases in point, see Cent. Dig. thereafter established. The proposition, as

voi. 44, Statutes, $ 81.] I understand it, is that, when the special

5. SAME. charter has provided a police court, it is not The fact that the law is limited in its apcompetent for the Legislature to charge up- plication to bonds sold after its passage, and

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