
    [S. F. No. 3820.
    In Bank.
    January 13, 1905.]
    R. H. ELDER, Respondent, v. JOHN E. McDOUGALD, Treasurer of the City and County of San Francisco, Appellant.
    Preliminary Examination by Police Judge—Source of Power—San Francisco Charter—Penal Code.—The charter of the city and county of San Francisco only confers upon the police court, as such, the power to conduct preliminary examinations in cases of felony, and no such power could be conferred upon the police judge by the charter, under the grant of power by the constitution to create police courts. Nevertheless, the police court having been established, a judge thereof has power to hold a preliminary examination as a committing magistrate under the general provisions of section 808 of the Penal Code.
    Id.—Power to Appoint Stenographic Beporter—Constitutional Law —Provisions of Charter—Code Provisions Superseded.-—Under section 8% of article XI of the constitution, placing police courts under charter control, and authorizing the charter to fix the compensation of attaches, the power given by the charter of the city and county o£ San Francisco to the police judges to appoint not more than two stenographic reporters, and fixing their compensation and duties, including the taking of notes of all preliminary examinations, is exclusive, and supersedes the provisions of section 869 of the Penal Code, so that a police judge acting as a committing magistrate has no power under that section to appoint another stenographic reporter, and to fix his compensation as a charge upon the municipal treasury.
    Id.—“Attaches” of Police Court—Stenographers.—The stenographers appointed by the police judges under the charter are “attaehés” of the police court within the meaning of section 8% of article XI of the constitution.
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco. M. C. Sloss, Judge.
    The facts are stated in the opinion of the court.
    Percy V. Long, City Attorney, and John P. Coghlan, Assistant City Attorney, for Appellant.
    George D. Collins, for Respondent.
   LORIGAN, J.

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, which, provides for the appointment of two stenographers by the judges of the police court to take notes at all preliminary examinations and fixes their compensation (of which plaintiff was not one), furnishes the only authority in the matter of employment of stenographers in taking preliminary examinations in that court, and that his appointment under the section of the Penal Code was void. Hence, the question is narrowed down to an inquiry as to whether the provision of the Penal Code, or that of the charter, controls the judges of the police court of the city and county of San Francisco, in appointing stenographers to report preliminary examinations in felony cases held before them.

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 followed by provisions for the appointment of •officers of the court, and then we reach the section particularly under consideration here, relative to the appointment of stenographers, which is as follows: ‘ ‘ The police judges may appoint not more than two competent stenographers, who shall attend the sessions of the court, and take notes of all preliminary examinations made at the sessions, and transcribe into typewritten longhand all evidence taken by either of them where the parties charged have been held for trial, and deliver one copy of the same to the clerk and one copy to the •district attorney. Each of such stenographers shall be paid for all his services, including transcription and all stationery used by him, an annual salary of twenty-four hundred •dollars.”

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 the police court of said city and county, acting as a court, but by one of the judges thereof acting as a committing magistrate under the provision of the general law above cited, and it is insisted that the constitutional provision above quoted did not authorize the framers of the adopted charter to control his power to appoint or fix the compensation of a stenographer, when acting as such magistrate.

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 holding preliminary examinations, we do not feel called on to determine that question. It is not at all involved in the present inquiry.

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 expenses to be borne by the municipal treasury, and it- was intended that as to any attaché of the judge—as well as of the court—the municipal government should have the right to provide not only for the compensation of the judges, but for “their clerks and attachés.” It is insisted, however, that no such authority is given in the constitutional provision for the appointment of attachés to the judge of the police court; that it only provides for fixing their compensation; and that in any event a reporter appointed by a police judge to take notes of the preliminary examination held by him as a magistrate cannot be considered an attaché of such judge under the charter.

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 category o£ attaehés who may be provided to the judge of the ■court, we do not think any general discussion of the meaning ■of the word “attaché” need be indulged in, because we are satisfied that, as employed in the constitutional provision, it is to be taken in the general and enlarged sense, as applying to any one recognized as a necessary adjunct to a court, tribunal, or office, and that by virtue of the necessity existing at practically all preliminary examinations, for the appointment of a stenographer, he should be treated as coming within that definition. Aside from this, however, the constitutional provision must be construed in the light of existing legislation, .as to the relation of reporters to judges of police courts, when the amendment was adopted. Police courts of the city and county of San Francisco had been established by the legislature, and existed long prior to the adoption of this constitutional provision. These courts were given the same jurisdiction under the acts, and the judges thereof possessed the same power under the provisions of the Penal Code relative thereto, as to the examination of felonies committed in the city and county of San Francisco, as they are given under the charter provision now, or which they possess under the general law. Tet under these acts each judge of a department ■of the court was required to appoint a stenographer (Stats. 1889, p. 62, sec. 8; Stats. 1893, p. 9, see. 8.) It is true that it was further provided that such reporter should receive for his services the pay now allowed by law, but whatever his compensation was, his appointment by the judge of the police court was provided for by law, and it is only the fact that his ■appointment was so provided with which we are concerned. The only possible occasion when the judges of such courts, created under these acts, would be authorized to require his ■services, would be in taking testimony at preliminary examinations in felony cases, and yet it was deemed then proper that a regular stenographer should be appointed by the judge ■of each department, for attendance thereon, as essential to a proper exercise of the jurisdiction of the court and of his ■own. That these stenographers so appointed were at least attaehés to the judge, we think cannot be successfully questioned. And for the purpose of taking the testimony in preliminary examinations', they were a necessary adjunct to the discharge by the judge of that duty.

And if anything were necessary to be considered aside from the particular provision of section 8^ of article XI, which we-have been discussing, to strengthen the conclusion which we-have reached, it is found in the closing portion of the general constitutional provision of which section 8% is a part, and which provides that when a city and county government has; been merged and consolidated into one municipal government, it shall be competent, in the charter thereof, to provide for the-election or appointment and the compensation of its county-officers and of their deputies. This closing provision of the-constitutional section indicates the general policy of the state-relative to the control which such a municipality shall have-over its officers, and reflects light upon the particular provision relative to police courts, their judges, and the clerks, and attachés thereof. That policy is, that it shall be exclusively within the power of such chartered municipality to-determine the compensation of all its officers, whether the-duties to be discharged by them are imposed on such offieers by the provisions of the charter, or are required to be performed by them as such municipal officers by virtue of the-provisions of the general law of the state. (Matter of Dodge, 135 Cal. 513.)

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.

Express power being given to the framers of the charter to provide therein for the appointment and compensation of ■stenographic reporters as attaches to the judge of said court in whatever capacity as such judge he might be called on to act, and this having been done by the framers thereof, the provisions of the charter in that respect superseded section •869 of the Penal Code as far as it empowered a police magistrate of a city to appoint a reporter for a preliminary examination being held by him and to fix his compensation, because nnder section 8 of the constitution it is declared that the provisions of a charter authorized by that constitution shall supersede all laws inconsistent with it. It follows that the demurrer to the answer of defendant was improperly sustained and the judgment is reversed.

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

BEATTY, C. J., concurring.

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, to the police judges, You must get along with that number. It results, of course, that if more than two examinations were going on at the same time one or more of the judges would be deprived of the assistance of a stenographer. But that would not prevent them from performing the duty imposed upon them by the statute; it would only require somewhat more of their time, and some additional labor. This, however, would afford no ground for complaint that the policy of the state law was defeated or its operation impeded, and as regards the judge, he, as a municipal officer holding and enjoying the emoluments of an office created by the charter, could not with any consistency complain of a charter provision defining his duties. I can see no objection in any point of view to the charter provision. There is no real conflict between it and the state law; its utmost effect in any contingency being to compel an examination in San Francisco to be conducted in one of two alternative methods equally legitimate and effective and differing only in point of convenience and expense—a consideration peculiarly affecting the local taxpayers, and in that sense a municipal affair.

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.  