SEC. 2. This act shall take effect only upon proceedings had or taken after its passage.

[An Act in relation to the probate court in the City and County of San Francisco, approved May 13, 1861, 509, was repealed by an act having the same title, approved February 10, 1864, 70, which will be found below.]

An Act conferring jurisdiction upon the State courts in certain cases arising under the act of congress. Approved March 6, 1863, 47.

1230. SECTION 1. Whenever any impost tax, license tax, stamp tax, income tax, or other tax or revenue whatever, may become and be due and payable to the United States of America, or to any of its officers or collectors, under and by virtue of the provisions of the act of congress, approved July first, one thousand eight hundred and sixty-two, entitled an act to provide internal revenue to support the government, and to pay interest on the public debt, or of any amendment thereto, or of any other act imposing the same kind or similar taxes, or imposing any forfeiture or penalty, suit may be brought therefor in the name of the United States of America, as plaintiff, in any court of otherwise competent jurisdiction of this State; and all the provisions of the third proviso of section seventy-seven of an act, approved May seventeenth, one thousand eight hundred and sixty-one, entitled an act to provide revenue for the support of the government of this State, shall be and they are hereby made applicable to every suit brought by or on behalf of the United States of America for the recovery of any tax or revenue, forfeiture, or penalty, due as aforesaid.

1231. SEO. 2. Every court in this State shall have and it is hereby given the same jurisdiction and control over any suit brought by or on behalf of the United States for any matter or thing mentioned in section one, that such court would have in any other civil case brought against the same defendant for the same amount.

SEC. 3. This act shall take effect from its passage.

An Act concerning the courts of justice of this State, and judicial officers.

Approved April 20, 1863, 333.

Courts of justice.

CHAPTER I.

COURTS OF JUSTICE IN GENERAL.

1232. SECTION 1. The following shall be the courts of justice of this State :First. The supreme court.

Second. The district courts.

Third. The county courts.

Fourth. The probate courts.

Fifth. The justices' courts.

Sixth. The recorders' and other inferior municipal courts.

Supreme court.

Election.

Allotment.

CHAPTER II.

[THE SUPREME COURT.]

1233. SEC. 2. The supreme court shall consist of a chief justice, and four associate justices. Each justice shall be commissioned by the governor, and before entering upon his duties shall take the constitutional oath of office; and no person shall be eligible to the office of justice of the supreme court who shall not have been a citizen of the United States, and a resident of this State, for two years next preceding his election.

1234. SEC. 3. The justices of the supreme court shall be chosen at special judicial elections to be provided by law, and shall hold their offices for the term of ten years from the first day of January next after their election, except those elected at the first special judicial election during the year one thousand eight hundred and sixtythree, who, at their first meeting, shall so classify themselves by lot, that one justice shall go out of office every two years. A record of the allotment shall be entered in the minutes of the court, and a copy thereof, under the hands of the justices, shall be transmitted to the secretary of State, and be filed in his office. The justice having the shortest term to serve shall be the first chief justice. The justice having the next shortest term to serve, by said allotment, shall be the second chief justice, and

so on until the expiration of the term of the justices first elected. Afterwards, the justice who has been longest in commission shall be the chief justice.

1235. SEC. 4. When, from any cause, a vacancy shall occur in the office of a jus- Vacancy. tice of the supreme court, the governor shall fill the same by granting a commission, which shall continue until the election and qualification of a justice. A justice to fill the vacancy shall be chosen at the first special judicial election subsequent to the occurrence of the vacancy, and shall enter upon the discharge of his duties on the first day of January next after his election. The justice thus elected shall hold his office for the balance of the unexpired term of his predecessor.

1236. SEC. 5. The supreme court shall have appellate jurisdiction in all cases in Jurisdiction. equity; also in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; also, in all cases arising in the probate courts; and also, in all criminal cases amounting to felony, on questions of law alone.

1237. SEC. 6. The supreme court shall have jurisdiction to review, upon appeal: First. A final judgment in any of the cases mentioned in the preceding section; and to review, upon the appeal from such judgment, any intermediate order or decision, involving the merits, and necessarily affecting the judgment.

Second. An order granting or refusing a new trial; an order granting or dissolving an injunction; and an order refusing to grant or dissolve an injunction; and any special order made after final judgment.

Jurisdiction to review.

1238. SEC. 7. The supreme court shall have power to issue writs of mandamus, Powers. certiorari, and prohibition to enforce obedience to its judgments and orders, and also 8 Cal. 247. all writs necessary or proper to the complete exercise of its appellate jurisdiction.

1239. SEO. 8. This court, and each of the justices thereof, shall have power to Habeas corpus. issue writs of habeas corpus to any part of the State, upon petition on behalf of any person held in actual custody, and to make such writs returnable before this court, or the justice issuing said writ, or before any district court, or any county court, in the State, or before any judge of said courts.

1240. SEC. 9. The supreme court may reverse, affirm, or modify, the judgment or Powers on order appealed from, as to any or all of the parties, and may, if necessary or proper, 10 Cal. 855. appeal. direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.

1241. SEC. 10. There shall be four terms of this court in each year for the hearing Terms. of causes, to commence on the first Monday of January, April, July, and October, and to continue until the fourth Saturday thereafter, inclusive, unless all the cases ready for hearing are sooner disposed of. If all the cases ready for hearing be not disposed of, the terms may be continued so much longer as in the opinion of the court the public interest shall require. The court shall be deemed always open for the filing of opinions and the rendition of judgments and orders.

ques

for

necessary transaction of

22 Cal. 23.

1242. SEC. 11. The presence of three justices shall be necessary for the transaction Number of business, excepting such business as may be done at chambers; and the concurrence of three justices shall be necessary to pronounce a judgment. Whenever business. tions of importance are involved in the cases decided, and are passed upon by the court, the reasons or grounds of the decision shall be given in a written opinion accompanying the same.

1243. SEC. 12. The terms of this court shall be held at the capital of the State. Court to be held at the capital. If proper rooms in which to hold the court and for the chambers of the justices be not provided by the State, together with attendants, furniture, fuel, lights, and stationery, suitable and sufficient for the transaction of business, the court may direct the sheriff of the county in which it is held to provide such rooms, attendants, furniture, Roons, &c., to fuel, lights, and stationery, and the expenses thereof, certified by a majority of the be provided by justices to be correct, shall be paid out of the State treasury.

sheriff of county.

1244. SEC. 13. The supreme court may make rules not inconsistent with the con- Rules. stitution and laws of the State, for its own government and the government of its own officers, but such rules shall not be in force until sixty days after their publica

tion.

213

CHAPTER III.

Number of districts.

District judges.

Election. 11 Cal. 77.

12 Cal. 878 17 Cal 11.

Term.
Vacancy.

To be commissioned.

Judges to reside in their districts. Eligibility.

Jurisdiction.

Indictments. 17 Cal. 871.

Powers.

Terms.

Business at chambers.

Transfer of

certain cases.

THE DISTRICT COURTS.

1245. SEC. 14. The State shall be divided by law into fifteen judicial districts.(") [Amendment, approved April 4, 1864; 1863-4, 398; took effect from passage.

1246. SEC. 15. There shall be a district judge for each of the judicial districts. The courts held by them shall be the district courts of the State.

1247. SEC. 16. The district judges shall be elected by the qualified electors of their respective districts, at the special judicial elections to be held for the election of justices of the supreme court, and shall hold their offices for the term of six years from the first day of January next after their election.

1248. SEC. 17. In case of a vacancy in the office of a district judge, the governor shall fill the same by granting a commission, which shall continue until the election and qualification of a judge in his place. At the first special judicial election subsequent to the occurrence of the vacancy, a judge shall be elected, who shall qualify and enter upon the duties of his office on the first day of January next after his election, and shall hold his office for a full term.

1249. SEC. 18. Each district judge shall be commissioned by the governor, and before entering upon his duties shall take the constitutional oath of office.

1250. SEC. 19. Each judge shall reside in his district, except that the judges of the districts embracing portions of the City and County of San Francisco may reside in any part of said city and county; and no person shall be eligible to the office of district judge who shall not have been a citizen of the United States and a resident of this State for two years and of the district one year, next preceding his election. But a residence in any part of the City and County of San Francisco shall be deemed a residence within the judicial district embracing portions of that county within the meaning of this section.

1251. SEC. 20. The district court shall have original jurisdiction in all cases in equity; also, in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; and also, in all criminal cases not otherwise provided for.

1252. SEC. 21. In all the counties of this State, the district courts shall have jurisdiction to try and determine all indictments transmitted to them from the county courts in the cases provided by law.

1253. SEO. 22. The district courts, and the judges thereof, shall have power to issue writs of habeas corpus, on petition by or on behalf of any person held in actual custody in their respective districts, and also, all writs necessary or proper to the complete exercise of the powers conferred upon them by the constitution and by this and other statutes.

1254. SEC. 23. The terms of the district courts shall be fixed by law. They shall be held at the county-seats of the several counties.

1255. SEC. 24. Each term shall be held until its business is fully disposed of, or until the day fixed for the commencement of some other term in the district, and may be adjourned, from time to time, in the discretion of the court.

1256. SEC. 25. The district judges shall, at all reasonable times, when not engaged in holding courts, transact such business at their chambers as may be done out of court. At chambers they may grant all orders and writs which are usually granted in the first instance upon an ex parte application, and may, in their discretion, also hear applications to discharge such orders and writs. At chambers they may also grant writs of mandamus, certiorari, and quo warranto, and may hear and dispose of such writs, and also all motions for new trials; judginents, and orders of the district courts, may be entered in term and vacation.

1257. SEC. 26. Whenever an action or proceeding is commenced in a district court, in which a county court has concurrent jurisdiction, the district court may, if the parties consent, by order transfer the same to the county court of the same county. Upon such transferrence, the county court shall have and exercise over such action or proceeding the same jurisdiction as if originally commenced therein.

(*) The original section provided for "fourteen" instead of "fifteen" judicial districts.

hold courts in

1258. SEC. 27. A district judge may hold a court in any judicial district in this Judges may State, upon the request of the judge of the district in which such court is to be held; another district. and when, by reason of sickness or absence from the State, or from any other cause, a court cannot be held in a district by the judge thereof, a certificate of that fact shall be transmitted by the clerk to the governor, who may thereupon direct some other district judge to hold such court. It shall be the duty of the judge thus directed, to hold such court; provided, such court does not conflict with any appointed term of Proviso. his own district.

1259. SEC. 28. Each district court shall have power to make rules, not inconsistent Rules. with the constitution and laws of the State, for its own government and the government of its officers; but such rules shall not be in force until thirty days after their publication, and no rule shall be made imposing any tax or charge upon any legal proceeding, or giving an allowance to any officer for services.

missioned.

1260. SEC. 29. There shall be, in each of the organized counties of the State, a County judge. county court. The county judge of each county shall be the judge of the county court. The county judges shall be elected by the qualified electors of their respective Election. counties, at the special judicial elections to be held for the election of justices of the supreme court, and shall hold their offices for the term of four years from the first day of January next after their election. Each county judge shall be commissioned by the To be comgovernor, and before entering upon his duties, shall take the constitutional oath of office. 1261. SEC. 30. In case of a vacancy in the office of county judge, the governor shall Vacancy. fill the same by granting a commission, which shall continue until the election and qualification of a judge in his place. At the first special judicial election subsequent to the occurrence of the vacancy, a judge shall be elected, who shall qualify and enter upon the duties of his office on the first day of January next after his election, and shall hold his office for a full term.

1262. SEC. 31. The county court shall have original civil jurisdiction: First. Of actions of forcible entry and detainer.

Fourth. Of all such special cases and proceedings as are not otherwise provided for. 1263. SEC. 32. The county courts shall also have jurisdiction:

Jurisdiction. 4 Cal, 235.

5 Cal. 43.

First. To inquire, by the intervention of a grand jury, of all public offenses committed or triable in their respective counties. And,

Second. To try and determine all indictments found therein, for all public offenses,

except treason, misprision of treason, murder, and manslaughter.

transmitted to

1264. SEC. 33. When an indictment is found in the county court for treason, mis- Certain indictprision of treason, murder, or manslaughter, it shall be transmitted by the clerk to the ments to be district court sitting in the county, for trial, except when the indictment is found district court. against a person holding the office of district judge, when it shall be transmitted to the district court of such other adjoining district as the county court may direct. 1265. SEC. 34. Indictments found in the county court shall also be transmitted to the district court sitting in the county, for trial, whenever the judge of the county court is disqualified from hearing or trying the same.

1266. SEC. 35. The county courts shall also have jurisdiction to hear and determine Jurisdiction on all cases, civil and criminal, appealed thereto, in the manner provided by law, from appeal. courts held by justices of the peace, recorders, and other inferior municipal courts in their respective counties.

1267. SEC. 36. The county courts and the judges thereof shall have power to issue Powers. writs of habeas corpus, on petition by or on behalf of any person in actual custody in their respective counties, and also all writs necessary or proper to the complete exercise of the powers conferred upon them by the constitution and by this and other

statutes.

1268. SEC. 37. The county courts shall hold their terms at the county-seats of their Terms, and respective counties, at such time as may be provided by law. The proceedings of the where to be county courts shall be construed in the same manner and with like intendments as the

held.

Force of orders, &c.

Business at chambers.

Court commissioners.

Powers of court commissioner.

Fees

Probate judge.
Exception.

proceedings of courts of general jurisdiction; and the records, orders, judgments, and decrees of said courts, shall have accorded to them like force and effect, and legal presumptions, as the records, orders, judgments, and decrees of the district courts.

1269. SEC. 38. The county judges shall, at all reasonable times, when not engaged in holding courts, transact such business at their chambers as may be done out of court. At chambers they may grant such orders and writs as are usually granted in the first instance upon an ex parte application, and may, in their discretion, also hear applications to discharge such orders and writs. At chambers they may also hear and dispose of all motions for new trials; judgments and orders of the county courts may be entered in term and vacation.

CHAPTER V.

COURT COMMISSIONERS.

1270. SEC. 39. The district courts may appoint for each county of their respective districts, a commissioner, who shall be designated as "court commissioner" of the county. If portions of a single county are assigned to different districts, then a commissioner may be appointed to reside in each portion of the county thus assigned.

[SEC. 40, which follows, appears to apply to the first, fifth, sixth, seventh, eleventh, and thirteenth judicial districts. It was amended by an act, approved March 24, 1864; 1863-4, 229, which will be found post, 1322, and which, it will be observed, does not apply to the judicial districts named. The original section is therefore retained in its place, and this reference made to the amendatory act.]

1271. SEO. 40. The court commissioners shall have power

First. To hear and determine ex parte motions for orders and writs in actions and proceedings pending in the district and county courts of their respective counties. Second. To hear and determine such contested motions in such actions and proceedings as may be referred to them by said courts for determination.

Third. To hear and determine all issues of law or fact in such actions and proceedings as may be referred by order of said courts, when no other person is agreed upon by the parties as referee.

Fourth. To take proof upon and determine as to any matter of fact upon which information is required by the said courts.

Fifth. To take affidavits and depositions, and to take and approve of bonds and undertakings, whenever the same may be required in such actions and proceedings, and to examine into the qualifications of the sureties thereon when an exception has been taken to their sufficiency.

[For powers and fees of court commissioners in the second, third, fourth, eighth, ninth, tenth, twelfth, fourteenth and fifteenth judicial districts, see amendatory act, approved March 24, 1864; 1863-4, 229, following this act, post, 1321, 1322, 1324, and 1325.]

1272. SEC. 41. The court commissioners shall only be entitled to recover for their services such fees as may be provided by law.

CHAPTER VI.

THE PROBATE COURTS.

1273. SEC. 42. There shall be in each county a probate court, with the jurisdiction conferred by this chapter.

1274. SEC. 43. The county judge of each county, except in the City and County of San Francisco, shall be the judge of the probate court. In the City and County of San Francisco the office of probate judge shall be separate from that of county judge. Probate judge. In said city and county a probate judge shall be elected by the qualified electors thereof, at the time and in the manner provided for the election of the county judge. The probate judge shall enter upon the duties of his office on the first day of January next after his election, and shall hold his office for the term of four years. He shall be commissioned by the governor, and before entering upon his duties, shall take the constitutional oath of office. In case of a vacancy in the office of probate judge of said city and county, the governor shall fill the same by granting a commission, which shall continue until the election and qualification of a judge in his place. At the first special judicial election subsequent to the occurrence of the vacancy, a probate judge shall be elected, who shall qualify and enter upon the duties of his office

Vacancy.