BELL v. BOARD OF SUPERVISORS OF SAN JOAQUIN COUNTY

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Court of Appeal, Third District, California.

James T. BELL, Judge of the Tracy Judicial District, Individually and as representative of certain electors of San Joaquin County, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF SAN JOAQUIN COUNTY, Defendant and Respondent.

Civ. 13998.

Decided: April 30, 1975

Scott R. Matthews, Stockton, for plaintiff and appellant. Richard W. Dickenson, County Counsel, Stockton, for defendant and respondent.

Plaintiff appeals from the judgment for defendant San Joaquin County Board of Supervisors (‘Board’) rendered following an order of the superior court granting the Board's motion for judgment on the pleadings. In this proceeding plaintiff, the duly elected incumbent judge of the justice court of the Tracy Judicial District, seeks in his own behalf and as representative of certain electors of San Joaquin County, to establish (1) the unconstitutionality of legislation creating a municipal court in the Tracy Judicial District and (2) the right to a referendum election on the county ordinance by which the challenged legislation became operative. For reasons hereinafter expounded, we hold that the enabling legislation is fatally out of harmony with paramount provisions of the California Constitution and reverse the judgment of the trial court accordingly.

By article 11, added in 1971 to chapter 10 of title 8 of the Government Code (Stats.1971, ch. 928, § 1; Gov.Code, §§ 73701–73720),1 the Legislature provided for the consolidation of two contiguous judicial districts in southern San Joaquin County, the Manteca-Ripon-Escalon Judicial District and the Tracy Judicial District, to create therefrom a single municipal court district (§ 73701) consisting of two divisions, the Eastern Division to include all of the territory of the superseded Manteca-Ripon-Escalon Judicial District and the Western Division to include all of the superseded Tracy Judicial District (§ 73702). Provision was made for one judge in each division (§ 73705). The enabling statute was effective March 4, 1972, but by its terms became operative only upon the consolidation of the subject judicial districts by the Board (§ 73719). On December 19, 1972, the Board enacted ordinance No. 1986, to become effective February 1, 1973, consolidating the subject judicial districts into a single district, thereby implementing the provisions of the enabling legislation. The ordinance designated the new district the Manteca-Ripon-Escalon-Tracy Judicial District (§§ 73701, 71045).

On January 17, 1973, plaintiff filed in the superior court for writ of mandate to compel the San Joaquin County Clerk (‘Clerk’) to accept, verify and count signatures on petitions for referendum on ordinance No. 1986. An alternative writ issued and thereafter the Clerk demurred to the petition. The record is silent as to the disposition of the demurrer which was apparently rendered moot by the Clerk's compliance with the alternative writ and by the filing on January 29, 1973, of a new petition in the same mandamus proceeding naming as defendants the Board and the Governor of the state.2 Acting in his own right and on behalf of ‘certain petitioning electors' who have ‘collected and/or signed petitions' to compel a referendum on ordinance No. 1986, plaintiff alleged (1) that the establishment of a municipal court in the Tracy Judicial District deprived him, a non-lawyer, of his office as judge without due process of law and pursuant to an unconstitutional statute; (2) that there was a sufficient number of qualified signatures, approximately 2,400 on the petition protesting adoption of ordinance No. 1986 to require a referendum election thereon; (3) that the enabling legislation is unconstitutional in that (a) the combination of the two judicial districts, necessary to attain the constitutionally required population base of 40,000, is in reality an artifice to create two municipal court districts by the use of divisions, each of which functions de facto as a separate municipal court and (b) the electors in the district are denied the right to vote for both judicial offices in the district and qualified candidates for judicial office resident in one division are ineligible for judicial office in the other. For relief plaintiff sought mandate and prohibition or injunctive relief to compel the Board (1) to cease all activities designed to render the enabling legislation operative and (2), in the event the legislation was found to be constitutional, to submit ordinance No. 1986 to referendum by the voters of San Joaquin County, ‘specifically [the electors] of the combined district.’ In addition, without explication, plaintiff sought declaratory relief.

On January 29, 1973, the superior court issued a temporary order restraining ordinance No. 1986 from taking effect. On February 16, 1973, the Clerk, complied with the alternative writ of mandate, filed with the trial court his certificate declaring that the petition protesting the adoption of ordinance No. 1986 had been filed, the signatures thereon verified by comparison with voter registration affidavits, and that the petition contained the signatures of 1,982 qualified electors of San Joaquin County of whom 1,645 resided in the Tracy Judicial District, 129 in the Manteca-Ripon-Escalon Judicial District and the remainder in other judicial districts of the county. At the same time the Clerk filed a memorandum recapitulating the total votes cast at the most recent gubernatorial election, disclosing that 9,164 votes constituted 10 percent of the total vote cast in the entire county, 719 votes constituted 10 percent of the vote cast in the Tracy Judicial District and 1,291 votes constituted 10 percent of the vote cast in the Manteca-Ripon-Escalon Judicial District.

On March 1, 1973, the Board moved for judgment on the pleadings, requesting that the trial court enter a declaratory judgment on the merits as to the matters in controversy. On March 16, 1973, the matter having been argued and submitted, the trial court filed a memorandum decision in which it held that the requirements of the Elections Code to compel a referendum were not satisfied.3 However, the trial court granted declaratory relief, holding that section 73704, th the extent it provided for election of the judges of the district within their respective divisions rather than within the district at large, was unconstitutional but severable from and therefore not fatal to the validity of the remainder of the statute. The trial court expressed reservations about the constitutionality of that part of section 73704 requiring residence within a division as a qualification for judicial office in that division, but declined to rule thereon, stating that such a determination was not necessary to the decision, and the provision, even if unconstitutional, was in the opinion of the trial court severable from the remainder of the statute. Thereafter judgment was entered for the Board accordingly and the court vacated the temporary order restraining the ordinance from taking effect.

On appeal, plaintiff continues his challenge to the constitutionality of the enabling legislation, contending that it violates section 5 of article VI of the California Constitution which requires a population of 40,000 within a judicial district for the establishment of a municipal court. While plaintiff agrees with the trial court's ruling that the election provisions of section 73704 are unconstitutional, he argues that the unconstitutional portion is not severable from the remainder of the statute. Plaintiff's remaining contentions on appeal are that he is entitled to a referendum on ordinance No. 1986 and that the legislative enactment violates both his constitutional rights and those of the electorate of the Tracy Judicial District by depriving petitioner of his office and the electorate of their duly chosen judicial office holder.

Initially, we address plaintiff's latter two contentions, considering them only briefly before passing on to discussion of the issue dispositive of this appeal, the constitutionality of the enabling statute. The state and local legislative enactments in combination operated to abolish plaintiff's office (§ 71084)4 to which he had been duly elected, replacing it with a different judicial office to which plaintiff, a non-lawyer, could not succeed. (Cal.Cost., art. VI, § 15.)5

Plaintiff's dual constitutional claim of wrongful deprivation of his elected office and pro tanto desenfranchisement of the electors who selected him will not withstand analysis. Plaintiff cites no authority and we know of none which prohibits the Legislature from abolishing a justice court notwithstanding the incidental termination of the incumbency of the judge thereof. Indeed the California Constitution confers upon the Legislature the power to divide the several counties into municipal and justice court districts and to provide for the organization of municipal and justice courts. (Cal.Const., art. VI, § 5.) (Fn. 8, post, p. 7.) ‘It is well settled that the sovereign power which creates a public office may abolish it or change the tenure thereof, even though the tenure of an incumbent is affected thereby, unless restricted by the Constitution. Such offices are not held by contract or grant. Miller v. Kister, 68 Cal. 142, 8 P. 813. If the office be a constitutional office, . . . the constitutional power which created in may likewise, in the exercise of its sovereign power, abolish it. Every person who accepts an office does so with that implied understanding.’ (Marello v. Superior Court (1927) 202 Cal. 400, 408, 261 P. 476, 479; see also Woodmansee v. Lowery (1959) 167 Cal.App.2d 645, 650, 334 P.2d 991.) When the municipal court was established in the consolidated judicial district, the justice court in the Tracy Judicial District ceased to exist and the plaintiff, ineligible to succeed to the newly created judicial position, was divested of judicial office. (Villanazul v. City of Los Angeles (1951) 37 Cal.2d 718, 723, 235 P.2d 16; Corey v. Knight (1957) 150 Cal.App.2d 671, 680–681, 310 P.2d 673; § 71084.)

Plaintiff's contention that the conditions requisite to compelling a referendum on ordinance No. 1986 had been fulfilled is patently without merit. On this issue it is sufficient to point out that a petition protesting adoption of a county ordinance is insufficient to compel a submission of the ordinance to the electorate unless it is ‘signed by voters of the county equal in number to at least 10 percent of the entire vote cast within the county for all candidates for Governor at the last gubernatorial election.’ (Elec. Code, § 3752.) The record discloses that 10 percent of the votes cast in San Joaquin County in the gubernatorial election next preceding the filing of the petition was equal to 9,164 but that the petition contained the signatures of only 1,982 qualified electors. The trial court properly considered this information (see fn. 3, ante, p. 4) and correctly refeused to order a referendum. At trial plaintiff argued that only those signers resident in the consolidated judicial district should be considered in passing on the sufficiency of the petition. There is no authority for a procedure whereby the electorate of a geographical area less than but included within the county can compel a referendum on a county ordinance. Quite apart from that, however, the number of signers of the petition who resided in the consolidated judicial district (1,774) was less than 10 percent of the votes cast in the gubernatorial election in that district (2,010).

On appeal neither party challenges the trial court's finding that section 73704 is unconstitutional, joining issue instead on the ancillary determination that the unconstitutional section is severable from the remainder of the statute. Since the issue of constitutionality is presented as a pure question of law (see Stevenson v. Colgan (1891) 91 Cal. 649, 652, 27 P. 1089; Masque Theater Corp. v. City of Los Angeles (1959) 170 Cal.App.2d 310, 314, 338 P.2d 584), we are not bound by the trial court's determination but are constrained to review the finding of unconstitutionality notwithstanding the absence of challenge thereto. (County of Madera v. Superior Court (1974) 39 Cal.App.3d 665, 668, 114 Cal.Rptr. 283.)

Specifically the trial court found section 73704 unconstitutional insofar as it provided for election of judges of the district solely within their respective divisions.6 At the time of trial section 73704 provided: ‘For purposes of qualification and election of judges, each division shall be deemed to be a district within the meaning of subdivision (b) of Section 16 of Article VI of the State Constitution and Section 71140 of this code.’7 The California Constitution (art. VI, § 16, subd. (b)) provides that municipal court judges ‘shall be elected in their . . . districts at general elections. . . .’ At the time this proceeding was commenced, section 71140 required that ‘The judges of a municipal court . . . shall be a resident [sic] eligible to vote in the judicial district or city and county in which they are elected or appointed for a period of at least 54 days prior to the date of their election or appointment.’ In addition to direction the Legislature to provide for the division of each county into municipal and justice court districts, the California Constitution further provides that a district with more than 40,000 residents shall have a municipal court and a district with less than 40,000 residents shall have a justice court. (Cal.Const., art. VI, § 5.)8

It is apparent from a reading of sections 73704 and 73705 that for purposes of qualification and election of judges, the Legislature into districts, one of which, the Tracy Judicial District, did not have the constitutionally required population base to support a municipal court.9 Thus a candidate for judicial office in the western division (the superseded Tracy Judicial District) must be both a resident of and elected from that division instead of from the entire district. Yet the California Constitution (art. VI, § 16) clearly requires that municipal court judges ‘shall be elected in their . . . districts . . ..’ Furthermore, the western division of the district does not qualify constitutionally for treatment as an integral municipal court district since it does not have the requisite population of more than 40,000. Thus as the trial court correctly held, the election provisions of the statutory scheme are clearly unconstitutional.

Because hereinafter we shall sustain plaintiff's constitutional attack on even broader grounds, we need not at this juncture pause to consider, as the trial court did, the question whether the election provisions of section 73704 may be severed from the statute without fatally impairing or destroying the object and purpose of the remaining provisions of the enactment.

The final issue we shall consider is raised by plaintiff's broadside attack upon the entire enabling statute, in which he contends that the legislative scheme is in effect a contrivance to create what in reality are two municipal court districts in contravention of the constitutional requisite of minimum population base.

A review of the statutory scheme discloses the attempt to establish what purports to be a single municipal court by consolidation of the hereinbefore identified judicial districts (§§ 73701, 73719); the district is to consist of an eastern and a western division; the eastern division is to include all the territory within the displaced Manteca-Ripon-Escalon Judicial District and the western division all the territory within the displaced Tracy Judicial District (§ 73702) with power conferred upon the board of supervisors to change division boundaries (§ 73703); each division is to have one judge who shall be the presiding judge of that division (§ 73705); for purposes of qualification and election of judges each division is to be deemed a district (§ 73704); each division is to have its own clerk (§ 73706) each of whom is authorized to appoint his own deputies (§§ 73707, 73708); each division is to have its own marshal who must reside and be ‘eligible to vote in the division in which he is elected or appointed’ (§ 73709); each marshal is authorized to appoint his own deputies and clerical employees (§§ 73710, 73711); for purposes of temporary assignment to another municipal court in the county of employees of the clerk's and marshal's offices of the respective divisions, each division is to be deemed another municipal court (§§ 73717, 72002);10 employees of the superseded courts are accorded certain rights to succeed to comparable positions but only in the division which replaces the superseded judicial district in which they are employed (§ 73718).

We have heretofore noted that the Constitution invests the Legislature with authority to provide for the division of the counties into judicial districts, for the organization of the courts within those districts, and to prescribe for the number, qualifications and compensation of judges, officers and employees of municipal courts (Cal.Const., art. VI, § 5; fn. 8, ante, p. 7). It is thus clear that the Constitution leaves to the Legislature the details of court structure (Martin v. County of Contra Costa (1970) 8 Cal.App.3d 856, 862, 87 Cal.Rptr. 886). In accordance therewith the Legislature has enacted provisions of general applicability relative to the organization and structure of municipal and justice courts. (Chs. 6, 7, 8 of tit. 8 of Gov. Code; §§ 71001–72307.) General legislation provides that there shall be as many departments of a municipal court as there are judges (§ 72270), but does not provide for the use of divisions in the organization of municipal courts. However, there is nothing inherently improper in organizing a municipal court into divisions so long as it is not employed as a device to install a municipal court where one is constitutionally prohibited. Where employed for a proper purpose, such as to equalize the distribution or expedite the disposition of judicial business, a provision creating divisions within a district will prevail over conflicting provisions of law relating generally to municipal courts. (See City of Escondido v. Municipal Court (1967) 253 Cal.App.2d 801, 804–805, 61 Cal.Rptr. 362.)

The undoubted authority to create divisions within a district, deriving as it does from the constitutional power to organize the municipal courts, must be exercised in a manner consistent with the overall constitutional scheme which predicates the class of court upon the population of the district. While not in itself determinative of the issue at hand, we note the conspicuous absence from the instant legislative scheme of any provision for a presiding judge of the court, or a clerk or marshal of the court. We also note and have heretofore treated with the constitutional infirmity of the election provisions of section 73704 permitting, as they purported to do, the election of a judge of the municipal court from a ‘district’ not qualifying as such under the Constitution. Section 73704 also requires the judge of a division (see § 73705) to be resident within and eligible to vote in that division at least 54 days prior to his election or appointment. (General law imposes the identical qualifications relative to the district in which a judge is appointed or elected (§ 71140).) Subordinate employees of the respective divisions are not freely transferable to comparable positions within the district but outside their divisions (§ 73717), each division clerk and division marshal being given discretion over such transfers (§ 72002). Employees of the superseded judicial districts are accorded job protection not within the district at large, but within the division displacing the superseded district in which they were employed (§ 73718).

Courts exercise judicial restraint when passing upon acts of the Legislature; “the presumption is in favor of constitutionality, and the invalidity of the legislation must be clear before it can be declared unconstitutional.” (Los Angeles Met. Transit Authority v. Public Util. Com. (1963) 59 Cal.2d 863, 867, 31 Cal.Rptr. 463, 465, 382 P.2d 583, 585.) (Original italics.) Where a legislative enactment is reasonably susceptible of two constructions, one of which will render it constitutional and the other unconstitutional, the court will adopt the construction which favors constitutionality though the other interpretation is equally reasonable. (City of Los Angeles v. Belridge Oil Co. (1957) 48 Cal.2d 320, 324, 309 P.2d 417.) However, if to salvage its constitutionality, various qualifications and exceptions must be read into a statute equivalent to a wholesale rewriting, the statute cannot be saved by construction but must be declared invalid. (Blair v. Pitchess (1971) 5 Cal.3d 258, 282, 96 Cal.Rptr. 42, 486 P.2d 1242.) Where the language of the statute is unambiguous and the meaning clear and obvious, an unconstitutional consequence cannot be avoided by forcing upon it a meaning that is repugnant to its terms. (French v. Teschemaker (1864) 24 Cal. 518, 554.) The task of statutory construction is to be performed in a common sense manner. (San Joaquin etc. Irr. Co. v. Stevinson (1912) 164 Cal. 221, 229, 128 P. 924.)

Testing the statute according to the precepts of statutory construction just recited, and for that purpose disregarding the label assigned by the Legislature to the two components of the newly created district, we are of the view that the Legislature, by a statute admitting of no other reasonable construction,11 has in effect created not one but two separate municipal court districts, each with its own discrete court, judge, attaches and subordinate personnel and each functioning in every respect within its division boundaries as an integral, unitary municipal court, equally as independent of its divisional neighbor as of any other separate court of the same class. By engrafting the Tracy Judicial District on to the Manteca-Ripon-Escalon Judicial District, the Legislature undertook to satisfy the constitutionally mandated minimum population required for a municipal court district, but the statute by which this was accomplished was designed so that the components of the combined district would have no further effect upon each other. This model of court reorganization, if unchallenged, conceivably could lead to wholesale circumvention of the minimum population requirement of the Constitution. While it is undoubtedly true that evolving standards of justice have cast a cloud over the continuing viability of the justice court as now constituted (see, e. g., Gordon v. Justice Court (1974) 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72), the applicable constitutional imperatives retain their vitality. Considerations of sound judicial administration may well call for the abolition of a justice court in a district with less then 40,000 residents and the extension of municipal court jurisdiction to that area. This may be achieved constitutionally, in counties of sufficient population, by consolidating districts or redrawing district lines (Cal.Const., art. VI, § 5; fn. 8, ante, p. 7; art. 2, ch. 6, tit. 8 of Gov.Code; §§ 71040–71046) and substantively fusing the separate components into an integrated entity. It cannot constitutionally be accomplished as attempted here by the sheer alchemy of classification. Here, the Tracy Judicial District was abolished in name only. As a division it retained all the indicia of a single, unitary judicial district. The only substantive change effected so far as that district was concerned was the replacement of the justice court with a municipal court. The reorganization is not saved from constitutional infirmity by the mere redesignation of the district as a division because the division is in reality a de facto district in an area with less than the constitutionally required population base for a municipal court district. We therefore hold that all parts of the statute which in effect establish separate courts within the district organized along division lines are unconstitutional.

We turn now to consideration of the severability of the unconstitutional portions of the statute from the remainder. Partial invalidity of a statute will not render the entirety invalid if the constitutional remainder can stand alone. “[T]he unconstitutional provision will not vitiate the whole act, unless they enter so entirely into the scope and design of the law, that it would be impossible to maintain it without such obnoxious provisions. . . .” (Hamer v. Town of Ross (1963) 59 Cal.2d 776, 789, 31 Cal.Rptr. 335, 343, 382 P.2d 375, 383; In re King (1970) 3 Cal.3d 226, 237, 90 Cal.Rptr. 15, 474 P.2d 983.) In Curtis v. Board of Supervisors (1972) 7 Cal.3d 942, 104 Cal.Rptr. 297, 501 P.2d 537, it was said at page 964, 104 Cal.Rptr. at p. 312, 501 P.2d at p. 552: “The test of severability is whether the invalid parts of the statute can be severed from the otherwise valid parts without destroying the statutory scheme, or the utility of the remaining provisions.” (Fn. omitted.) The statutory scheme must be appraised in light of the intention of the legislative body to ascertain which the court may look to the words of the statute. (County of Madera v. Superior Court, supra, 39 Cal.App.3d at pp. 668–672, 114 Cal.Rptr. 283.)

The intent of the Legislature was obviously to establish a municipal court district with two judges, employing a prescribed number of officers and attaches (clerks, § 73706; deputy clerks, §§ 73707, 73708; marshals, § 73709; deputy marshals, §§ 73710–73711) at designated salaries (clerks, §§ 73706, 73713; marshals, §§ 73709, 73712; employees generally, §§ 73712, 73713) with rights of employment within the new district extended to employees of the abolished districts (§ 73718; § 73720 provides that the judge of the Tracy Justice Court, if ineligible to succeed to a municipal court judgeship in the Western Division, shall at his option succeed to the position of clerk of the Western Division.)

The provisions of the statute which relate to divisional organization may be deleted without impairing a manifest object of the statute, i. e., the consolidation of two districts into one with two judges authorized for the new district. Neither will the need to strike the requirement of division residence as a qualification for judicial office frustrate that object since the residence requirement is not integrally related to that purpose and furthermore, the provisions of the general law requiring residence within the district as a qualification for a municipal judgeship (§ 71140) will fill the hiatus created by the invalidity of the special residence provision.12 More troublesome, however, are the provisions of the statute implementary of the Legislature's constitutional obligation to ‘prescribe for each municipal court . . . the number, qualifications, and compensation of judges, officers, and employees.’ (Emphasis added.) (Cal.Const., art. VI, § 5; fn. 8, ante, p. 7.) The organization of the new district into divisions, each structured internally as an independent judicial district, is reflected in the designation of attaches and employees. Each division is staffed so as to be totally self-contained and independent of its neighbor. The abolition of divisions then will in turn effect the abolition of the positions of division clerk and division marshal, will have an impact on the priority with which employment opportunities within the district are extended to the employees of the antecedent judicial districts and will have a potential impact upon the plaintiff's right to employment within the district, a right which the Legislature sought to preserve (§ 73720). Thus the unconstitutional portions of the statute relating to division organization so pervade the provisions concerning the number, qualifications, and compensation of officers and employees that the removal of the unconstitutional parts cannot be accomplished without altering substantially the scope and design of the statute. To do so would frustrate and defeat the intent of the Legislature expressed in the statute, to prescribe the number, qualifications, and compensation of attaches and employees of the new judicial district. Because the deletion of the unconstitutional parts of the statute would to that extent thwart the realization of the legislative scheme, the entire statute must fall.

The judgment is reversed and the matter remanded to the trial court with directions to vacate its order granting the Board's motion for judgment on the pleadings. The trial court is directed to enter judgment denying plaintiff injunctive and extraordinary relief and is further directed to enter a declaratory judgment in accordance with the views expressed in this opinion.

FOOTNOTES

1.  Hereinafter all section references are to the Government Code unless otherwise indicated.

2.  So far as the record reveals, the Governor has never appeared in this proceeding.

3.  At request of the Board, the trial court in ruling upon the motion took judicial notice of the number of valid signatures on the petitions for referendum filed with the county clerk and of the number of votes cast within San Joaquin County for all candidates for governor at the most recent gubernatorial election (see Evid.Code, §§ 452, subd. (g), 453; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 716, 63 Cal.Rptr. 724, 433 P.2d 732; Walker v. City & Co. of S. F. (1950) 97 Cal.App.2d 901, 907–908, 219 P.2d 487.)

4.  Government Code section 71084 provides in part: ‘Whenever a municipal court is established in a district in which a justice court was previously established or in a district formed from territory formerly included in justice court districts, the justice court shall cease to exist within the district for which the municipal court is established, and the term of office of the judges of justice courts situated wholly within such district shall terminate upon the selection and qualification of the first judges of the municipal court. . . .’

5.  Section 15 of article VI of the California Constitution provides in part: ‘A person is ineligible to be a judge of a court of record unless for 5 years immediately preceding selection to a municipal court . . . [he] has been a member of the State Bar or served as a judge of a court of record in this State. . . .’A justice court is not a court of record. (Cal.Const., art. VI, § 1.)

6.  Section 73705 provides: ‘There shall be one judge in each division who shall be the presiding judge of the division.’

7.  After the trial court's ruling section 73704 was amended by Stats.1973, ch. 829, section 9, effective January 1, 1974, and now reads: ‘For purposes of qualification of judges, each division shall be deemed to be a district within the meaning of Section 71140.’

8.  Section 5 of article VI of the California Constitution provides: ‘Each county shall be divided into municipal court and justice court districts as provided by statute, but a city may not be divided into more than one district. Each municipal and justice court shall have one or more judges.‘There shall be a municipal court in each district of more than 40,000 residents and a justice court in each district of 40,000 residents or less. The number of residents shall be ascertained as provided by statute.‘The Legislature shall provide for the organization and prescribe the jurisdiction of municipal and justice courts. It shall prescribe for each municipal court and provide for each justice court the number, qualifications, and compensation of judges, officers, and employees.’

9.  Before the consolidation of the Manteca-Ripon-Escalon Judicial District with the Tracy Judicial District, a municipal court had been created in the former district (art. 32.1 of ch. 10, tit. 8, of the Gov.Code; §§ 74815–74824; Stats.1969, ch. 1302, p. 2617, § 93.1) to become operative when it had been determined according to law that the population of the district exceeded 40,000 (§ 74824, repealed Stats.1971, ch. 773, p. 1523, § 6). Pursuant thereto the Manteca-Ripon-Escalon Municipal Court came into existence February 8, 1971. (Judicial Council of California, Annual Report (1973) Table 42, fn. 1; see also § 73718.)Plaintiff's pleading alleges inferentially that fewer than 40,000 people reside in the Tracy Judicial District. This allegation is not disputed by the Board and is accepted as true and relied upon by the trial court in its memorandum decision.

10.  Section 72002 provides that the clerk or marshal of a municipal court ‘may . . . require a deputy or employee to work temporarily in the office of clerk or marshal of another municipal court situated in the same county if a request for assistance has been made by such other court.’ (Emphasis added.)

11.  If the purpose of divisional organization was to facilitate distribution of judicial business, the same purpose could be accomplished through the legislative power to prescribe the number of judges (Cal.Const., art. VI, § 5; § 72000) among whom, under general law, the presiding judge (see § 72271) could apportion the business of the court (§ 72274). If the purpose was to extend the accessibility of the court to the optimum number of residents of the district, that objective could be accomplished by the Legislature under its constitutional power to organize the municipal courts or by deferring to the board of supervisors the power to designate sites for court sessions as is done under general law (§ 71342).

12.  As heretofore noted, the provisions of section 73704 relating to election of judges were repealed by the Legislature after the trial court rendered judgment herein. (See fn. 7, ante, p. 6.)

PUGLIA, Residing Justice.

REGAN, J., concurs.

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