or wish to continue, in a licensed occupation. As mere mode the condition imposed is not more unusual or onerous than statutory law or local ordinance, passed in the exercise of the police power of the state, has frequently prescribed for other occupations or professions. Says the supreme court, in Ex parte Yale, 24 Cal. 242: "The manner, terms, and conditions of an attorney's admission to practice, and of his continuing in practice, as well as his powers, duties, and privileges, are subject to legislative control the same as any other profession or business that is created or regulated by statute;" therefore the statute which required, as a condition to admission to practice, or to continue in practice, the taking of the oath prescribed, was constitutional. So in Ex parte Frazer, 54 Cal. 94, and Ex parte Johnson, 62 Cal. 263, we held that a statute, passed to regulate the practice of medicine, which made it a misdemeanor for a physician to practice medicine without having first procured a certificate from a board of examiners, appointed by certain medical societies, was not subject to constitutional objection.

Lastly, it is contended that the judgment of conviction is void because (1) the city court of Los Angeles was abolished by section 1 of article 6, and section 1 of article 22 of the present constitution; and, (2) if not abolished, the court had no jurisdiction to try the petitioner for the offense with which he was charged.

The constitution of 1879 abolished all courts except "justices' and police courts,"-these it continued in existence. Section 3, art. 22, Const. At the same time it vested the judicial power of the state in certain designated courts, and authorized the legislature to establish inferior courts in any incorporated city or town, or city and county, and fix by law their jurisdiction, and the powers, duties, and responsibilities of the judges thereof. Sections 1, 13, art. 6, Const. But the judicial departments of the municipalities of the state, as created by their respective charters, were not affected by these provisions. The constitution left all municipal bodies free to administer their local affairs under their forms of municipal government, with the powers conferred upon them by their charters, and such additional powers as were thought adequate to the purposes of their creation. This was the status of the municipal corporations of the state at the time of the adoption of the present constitution. As such they have since continued to exist before and after the first day of July, 1880, the day fixed by section 1, art. 22, of the constitution, for the cessation of all laws inconsistent with its provisions, working under charters unchanged, except in such changes as may have been made by the constitution; and the existence of each municipality under its charter is continued by the constitution until a majority of the electors of the municipal body determine to reincorporate under the general law, or to frame a charter for its government. Desmond v. Dunn, 55 Cal. 242; Wood v. Board of Election Com'rs, 58 Cal. 561.

We are not aware that the city of Los Angeles has reorganized or

reincorporated under any general law, or that its charter has been changed since the constitution went into effect pursuant to its provisions. The judicial power of the city is therefore vested in the court to be held by the judicial officer provided by the charter; and as such he could exercise such judicial powers as may be contained in the charter, and try and determine all local causes within the charter jurisdiction conferred upon him. People v. Henry, 62 Cal. 557; Ex parte Carillo, 4 Pac. Rep. 695. The fact that the same person officiated as mayor, and as mayor presided in the local legislative body which passed the ordinance, did not divest him of his authority under the charter to act as the judicial officer of the court. The provisions of the charter which made the mayor of the city a component part of the council, and "ex officio city judge," are not in conflict with the constitution. As was said in Uridias v. Morrill, 22 Cal. 474, "there is nothing in the constitution which prohibits the legislature from declaring the mayor of a city to be ex officio a justice of the peace; and, under such a law, the same person may constitutionally exercise the functions both of mayor and justice." See, also, People v. Provines, 34 Cal. 520. A mayor's court, or a city court as a mere municipal court, is regarded as a justice's court.

The city court had jurisdiction of the action and the person of the defendant. Having jurisdiction of the action and the party defendant, the judge of the court had power to proceed to the final disposition of the same, unless from interest, or some other reason, he was disqualified from acting. His qualification to act was challenged by an affidavit, made and filed by defendant, which contained a statement of defendant's belief that he could not have a fair and impartial trial in the city court on account of the prejudice and bias of the judge who, as judge of the court and mayor of the city, was the subject of much acrimonious discussion by the newspapers and persons within the municipality in connection with the passage of the ordinance; and, in consequence thereof, "the said mayor and judge is interested in the result of the trial, and is interested in convicting affiant."

It is also urged that as section 12 of article 5 of the charter provides that "all fines collected in said city court shall be paid by the said judge into the city treasury, and be placed to the credit of the salary fund," and as subdivision 1 of section 2 of article 11 of the charter provides that the mayor of the city shall receive a monthly salary of $150, the mayor, as ex officio city judge, was interested in convicting the petitioner of violating the ordinance. It is difficult to see how these provisions of the charter made the judge of the court personally or pecuniarily interested in a criminal action for violating an ordinance, so as to incapacitate him from trying it, and from enforcing conviction by the collection of a municipal fine or imprisonment. Nor does the fact stated, in the affidavit, "that the action of the mayor in approving the ordinance has been largely assailed in the city by individuals and by the press," disqualify the mayor, as ex officio city judge,

from exercising his judicial functions in proceedings before him, within his jurisdiction; nor was it sufficient as a basis for an application to change the place of trial in the proceedings; and there was no excess of jurisdiction in denying the application made upon the affidavit for that purpose. People v. Williams, 24 Cal. 31; McCauley v. Weller, 12 Cal. 500.

Writ dismissed and petition remanded.

We concur: MYRICK, J.; SHARPSTEIN, J.; THORNTON, J.; MORRISON, C. J.

Ross, J., (dissenting.) I think the portion of the ordinance involved in this case is void for the reason that the power conferred on the mayor and council by the charter of the city is in effect delegated by that body to the board of police commissioners. By the charter of the city of Los Angeles the power "to license the carrying on and conducting of any and all professions, trades, callings, occupations, or other business, by any person, natural or artificial, within the corporate limits of said city," is vested in the mayor and council. "The principle is a plain one," says Dillon in his work on Municipal Cor porations, "that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others. Thus, where by charter or statute local improvements, to be assessed upon the adjacent property owners, are to be constructed in such manner as the common council shall prescribe' by ordinance, it is not competent for the council to pass an ordinance delegating or leav ing to any officer or committee of the corporation the power to determine the mode, manner, or plan of the improvement. Such an ordinance is void, since powers of this kind must be exercised in strict conformity with the charter or incorporating act. So, where a power-for example, the power to issue licenses-is granted by law, or by an ordinance duly passed, to the mayor and aldermen, they are constituted to act as one deliberative body, to the end that they may assist each other by their united wisdom and experience, and the result of their conference be the ground of their determination; and when this is the case, the board of aldermen cannot, even by a vote, delegate the power to the mayor alone." Section 96, 1 Dill. Mun. Corp. And in section 357 of the same volume the learned author says: "Where, by the charter of a city, the power to license a particular occupation within its limits is given to the common council, such power involves the necessity of determining, with reasonable certainty, both the extent and duration of the license and the sum to be paid therefor; and must be exercised by the common council, and cannot be delegated by it, in whole or in part, to any person or authority.” See, also, Cooley, Const. Lim. 204.

Now, the ordinance here in question provides, among other things,

"that no license to keep a saloon, bar, or other place for the sale of spirituous, vinous, malt, or mixed liquors shall be issued to any person until a permit in writing from the board of police commissioners authorizing such issue shall have been filed with the clerk of the council, and the board of police commissioners shall have power to issue such permit and revoke the same at any time; and, after the filing of such revocation with the clerk of the council, the said clerk shall issue no further license to the party whose permit is revoked until a new permit be granted said party." This language does not admit of construction. It is direct and simple, and clearly and unequivocally makes the granting of the licenses in question to depend upon the action of the board of police commissioners. Nor is there

any limit to the power thus attempted to be conferred upon that board. No conditions whatever are imposed, but the broad and unconditional power attempted to be given to grant or withhold permits at will. As by the terms of the ordinance no license can be issued for conducting the business in question until a permit in writing from the board of police commissioners authorizing such issue shall have been filed with the clerk of the council, it follows, necessarily, that the granting or withholding of such licenses is in effect vested by the ordinance in that board. No argument can make this plainer. It is, it seems to me, a self-evident proposition.

In the case of City of East St. Louis v. Wehruing, 50 Ill. 28, the charter conferred upon the city council power "to restrain, prohibit, and suppress tippling-houses, dram-shops, gaming, bawdy, and other disorderly houses." The ordinance declared that "licenses may be granted under this article to proper persons for a period of not less than one month, nor more than six months, to be determined by the city treasurer in each case; but the city treasurer may, in his discretion, reject any application for license under this article for a longer period than one month, and, with the concurrence of the mayor, he may reject any application for license under this article." court said:

The

"The provision of the charter manifestly intended that the power should be exercised by the city council, under reasonable and proper ordinances, and not that they should authorize an individual to grant or refuse a license, or to fix the amount which should be paid for a license. If the treasurer may, under this ordinance, refuse licenses with the concurrence of the mayor, then they, and not the city council, would regulate or suppress dram-shops; and if the treasurer may, in his discretion, fix the sum to be paid, then he, and not the city council, would discharge that duty. In the proper exercise of this power the city council should adopt general ordinances, prescribing a general rule by which licenses might be obtained. They might, no doubt, prescribe the character of persons who might or might not obtain licenses; or they might, in their regular or called meetings, in such manner as they might ordain, grant such licenses. The ordinances should prescribe the amount required to be paid for such license, either by an ordinance relating to the entire city, or grade the rates by divisions or portions of the city, or otherwise. The ordinance should be of that general character that all per

sons coming within its requirements should be entitled, by complying with its provisions, to receive a license, and the amount to be paid should be determined by ordinance or order of the council, and not left within the discretion of a single officer of the city."

These observations by the supreme court of Illinois are applicable to the case before us. Of course, if the business in question, or any other licensed business, be conducted in a manner that is offensive or dangerous to the public interests, the governing body of the city may direct the manner to be changed, and prescribe regulations for its prosecution. But the right to regulate its prosecution is an altogether different thing from the right to delegate the power to license.

As, in my opinion, the portion of the ordinance involved in this case is void for the reason above given, it is unnecessary for me to consider any other point.

It results from these views that the petitioner is illegally restrained, and should be discharged.

(69 Cal. 105)

LEVY V. WILSON, Judge, etc. (No. 11,366.)

Filed March 17, 1886.

1. WRIT OF PROHIBITION-JURISDICTION.

Prohibition lies in California only to arrest proceedings of a judicial tribunal when they are without or in excess of its jurisdiction, and there is no plain, speedy, and adequate remedy in the ordinary course of law.

2. CRIMINAL LAW-INDICTMENT-SUPERIOR COURT-JURISDICTION.

When a criminal prosecution is founded upon an accusatory paper, purporting to be an indictment, but which is void by reason of not being found by a valid grand jury, the superior court can acquire no jurisdiction thereunder.

3. GRAND JURY-ORDER FOR DRAWING, AMENDMENT of.

A drawing of a grand jury for the city and county of San Francisco, ordered as required by sections 219 and 241 of the Code of Civil Procedure, at a designated hour, on a certain day, was not invalidated by the fact that on such day the judge before whom the drawing took place amended the order by changing the hour designated therein; and such amendment did not divest the court of jurisdiction over the proceeding, nor did the absence of the presiding judge of the department of the court invalidate the drawing. 4. SAME-DEFICIENCY IN PANEL, HOW FILLED.

Where, from the persons summoned, a sufficient number to constitute a grand jury cannot be obtained, the superior court has jurisdiction, under the California statute, to fill out the deficiency of the original panel, either by an order for a sufficient number of jurors to be forthwith drawn and summoned to attend the court, or by an order entered in its minutes directing the sheriff forthwith to summon so many good and lawful men of the county, or city and county, to serve as grand jurors as may be required.

In bank. Application for writ of prohibition.
Davis Louderback, for petitioner.

J. N. E. Wilson and T. Z. Blakeman, for respondent.

MCKEE, J. On the twentieth of September, 1885, there was returned and filed in department 11 of the superior court of the city and county of San Francisco an indictment for felony against the petitioner in this case, found by the grand jury. After the indictment