The People v. Smith.

"ley." It is not necessary that it should be stated that Nappa Valley is in the state of California. Courts take judicial notice of the territorial extent of the jurisdiction and sovereignty, exercised de facto by their own government; and of the local divisions of their country, as into states, provinces, counties, cities, towns, or the like, so far as political government is con-cerned or affected. (Greenleaf on Ev. 8.) And we recognize judicially that Nappa Valley is embraced within the territorial limits of this state, the same as we should, that San Francisco is included within its boundaries, if an offence were charged to have been committed there.

Fourthly. It is claimed that a judge of First Instance cannot act as an examining and committing officer. We think otherwise. Judges of First Instance are invested with a criminal as well as a civil jurisdiction, (Art. 2, § 2, of part 2, of law of May 23, 1837, and art. 9, of same law,) and are empowered not only to try criminal causes, but also to act in the preliminary proceedings of arrest and commitment for trial. This power they have uniformly exercised since the acquisition of California by the United States government; and we deem it a part of their duties as conservators of the peace in the districts over which their jurisdiction extends. It was conceded upon the argument that they were conservators of the peace, but it was contended that the power of such officers does not extend to the arrest and commitment of persons charged with the commission of crimes. Before the institution of the office of justice of the peace in England, the public order was maintained by officers who bore the name of conservators of the peace, (4 Stephen's Comm. 37, 38;) and they were empowered to preserve the peace, to suppress riots and affrays, to take securities for the peace, and to apprehend and commit felons and other inferior criminals. (Id. 43.) The same power is conferred upon a variety of officers in England and the United States by simply declaring them by statute to be conservators of the peace; and the constitution of this state confers the same authority in the same terms, upon the justices of this court and the district judges. Being conservators of the peace, the judges of First

The People v. Smith.

Instance may legally act in the apprehension and commitment of offenders against the law; and the proceedings before us are not invalid upon the ground of want of jurisdiction in the officer who made the commitment.

There are in addition to the views already taken of the case, reasons which render a discharge of the prisoners improper. The depositions taken before the judge of First Instance have been returned, and we think that enough appears in them to require that the defendants should be put upon their trial. It is a general rule, that upon application to bail or discharge upon habeas corpus, the court will look into the depositions, and, without regarding the regularity or irregularity of the commitment, will remand, discharge or bail the prisoner, according to the circumstances of the case. The court, in such case, pronounces no judgment, whether the facts amount to felony or not, but merely whether enough is charged to justify a detainer of the prisoner, and putting him upon his trial. Even if the commitment be regular, the court will look into the depositions, to see if there be a sufficient ground laid to detain the party in custody, and if there be not, will discharge or bail him. So, on the other hand, if the warrant of commitment be informal, they will not discharge or bail the prisoner, without first looking into the depositions, if any be presented, to see whether there is sufficient evidence to detain him, and if the matter appear to be such as would require his detention, or his finding sureties, he will be bailed or committed accordingly, and not discharged. (1 Chitty Crim. Law, 92, 93, 94.)

For these reasons, the court cannot grant the prayer of the petitioners for their discharge. If the district courts were fully organized, and their terms prescribed and known, we should, perhaps, not deem it within the proper exercise of a sound discretion to bail them; but considering the want of definite and well understood laws regulating proceedings in the existing courts of First Instance, and the uncertainty as to the time when the district courts will be ready to proceed with business, superadded to the fact that there is no jail or prison in which prisoners can be kept with security, we feel disposed to order their

Luther v. The Master and Owners of Ship Apollo.

release upon bail. The defendants must, therefore, enter into a joint recognizance with at least two good and sufficient sureties in the sum of ten thousand dollars, that they will appear and answer to any indictment which may be presented by the grand jury of the district of Sonoma for the offences charged against them in the several orders of commitment, from which they have petitioned to be discharged; or either of them may enter into a recognizance in the sum of three thousand dollars, with at least one good and sufficient surety, to the same effect. In either case the sureties must be approved by the judge of First Instance of the district of Sonoma, or by one of the justices of this court, upon satisfactory proof that they are each worth double the amount specified in the recognizance over and above all debts, claims, and demands. Upon entering into such recognizance, either of the prisoners will be released from further detention. In case of failure to enter into such recognizance, they must be remanded to the custody of the sheriff of Sonoma, to be by him kept until discharged by due course of law.

LUTHER, respondent, vs. THE MASTER AND OWNERS OF SHIP APOLLO, appellants.

This court has no jurisdiction of an appeal from the court of First Instance, where the judgment appealed from is for less than the sum of two hundred dollars; and where an appeal was brought from a judgment of $166 80, it was ordered that the appeal should be dismissed with costs.

THE facts are sufficiently stated in the opinion of the court. The cause was argued ex parte, by

Horace Hawes, for the appellants.

By the Court, HASTINGS, Ch. J. This was an action instituted before the court of First Instance for the district of San Francisco, for the recovery of seaman's wages, amounting to the sum of $166

Luther v. The Master and Owners of Ship Apollo.

80, and judgment was rendered for the appellee in the sum of $100.

The 4th sec. of the 6th art. of the constitution of this state, provides that, "The supreme court shall have appellate juris"diction in all cases where the matter in dispute exceeds two "hundred dollars, when the legality of any tax, toll, or impost, "or municipal fine is in question."

The matter in dispute was the recovery of $166 80, and the question is at once suggested whether this court has jurisdiction. If it had been intended by the framers of the constitution to give this court jurisdiction in cases in which the amount in controversy was less than $200, pending before the adoption of the constitution, and the enactment of laws repealing the then existing laws, exceptions would have been incorporated into that instrument to that effect. It does not appear that the 1st, 2d, and 3d sections of the schedule will confer jurisdiction in such cases. The 1st sec. provides that, "all laws in force at the "time of the adoption of this constitution, and not inconsistent "therewith, until altered or repealed by the legislature, shall con"tinue as if the same had not been adopted." It seems to be inconsistent with the provision of the constitution above quoted, to entertain jurisdiction in a case where the amount in dispute is less than $200. The 3d sec. provides, among other things, that the laws relative to the duties of the several offices then existing, shall not be changed until the entering into office of the new officers to be appointed under this constitution. The justices of this court are officers appointed under the constitution, and ought not to exercise any other judicial functions than those conferred upon them by the constitution itself, and the laws of the land consistent therewith. It is therefore but reasonable to infer, that the legislature in the 3d sec. of the act of 28th of February, intended only to transmit to this court all such appeals from the courts of First Instance, in which the amount in controversy shall exceed in value the sum of $200. It seems very doubtful whether the court of Second Instance, to which this case was appealed, could entertain jurisdiction if such a court were now in existence. By the 12th art. of sec. 2d, part 2d, Halleck's

Luther v. The Master and Owners of Ship Apollo.

Translation and Digest of Mexican Laws, it is declared, "that in the trial of causes which exceed $100, but do not exceed $200, the judges shall take cognizance by means of a written process according to law, but without appeal, except the laws have been violated which regulate the mode of proceeding." From which we infer that the courts of First Instance, so long as they comply with the ordinary rules of practice, and do not violate the laws regulating practice in their courts, have exclusive jurisdiction in all controversies where the matter in dispute shall not exceed $200, and shall exceed $100; and no court can review by appeal their judgments in such cases.

Entertaining these views, we do not think it our duty to encourage appeals into the supreme court of this state, when the amount in controversy is of the character presented by this re cord.

The appeal, therefore, is ordered to be dismissed at the cost of the appellant.

LYONS, J. concurred.

BENNETT, J. (dissenting.) I do not doubt that the court of Second Instance, under the Mexican system of laws, would have had jurisdiction of this appeal. It may be conceded that no appeal would lie, except where the laws had been violated, which regulate the mode of proceeding. But this appeal is brought for the very reason that the laws have been violated which regulate the mode of proceeding. Without entering into a minute examination of the different clauses of the constitution, I will merely say, that taking all the provisions which bear upon the point under consideration together, they confer upon this court appellate jurisdiction over judgments rendered in the court of First Instance, in all cases where the court of Second Instance, under the Mexican system, would have had such jurisdiction. I think that the appeal should be entertained, and dissent from the conclusion to which the majority of the court have arrived.