nor had ever seen them before. They were familiar with the custom of teamsters, and therefore supposed that the brakes were set and the lines securely fastened.

If the testimony in the case disclosed that the plaintiffs knew that the team in question was naturally nervous and restless, that the brakes were not set and the lines lying on the ground, the court might have found that the plaintiffs were guilty of contributory negligence in driving ahead of the unattended team, but their evidence shows that they did not know those facts, except that one of the plaintiffs in passing the team saw the lines on the ground, but it may be inferred that this was at a time too late to change the course of the buggy and avert the accident. Neither of them could anticipate the slamming of the gate, without which act the team would probably not have run away. We think the finding of the court on this branch of the case is also amply sustained by the evidence.

The order appealed from is affirmed.

Hall, J., and Cooper, P. J., concurred.

[Civ. No. 640. Second Appellate District.-September 22, 1909.] UNION ICE COMPANY, a Corporation, et al., Petitioners, v. H. H. ROSE, City Justice of the Peace and Ex-Officio Police Judge of the City of Los Angeles, Respondent. PROHIBITION-JURISDICTION OF LOS ANGELES POLICE COURT-MISDEMEANOR UNDER CARTWRIGHT LAW-CODE PENALTY EXCEEDED— REPEAL BY ACT ESTABLISHING COURT.-Prohibition will not lie to prevent the police court of the city of Los Angeles from punishing a misdemeanor committed under the Cartwright law forbidding conspiracies against trade, on the ground that the penalty affixed thereby exceeds the limit fixed by section 4426 of the Political Code, it appearing that that section was repealed by section 2 of the act of 1901 establishing that court, and giving it jurisdiction of all misdemeanors.

ID.-MISDEMEANOR DEFINED.-Misdemeanors are not defined as being punishable by fine or imprisonment in the city or county jail, but

are those offenses for which the penalty imposed, whatever it be, is other than death or imprisonment in the state prison.

ID. CONSTITUTIONALITY OF ACT CREATING LOS ANGELES POLICE COURTCLASSIFICATION.-The act creating the police court of Los Angeles is not special legislation, but is based upon the classification of cities of the one and one-half class, and is a general law applicable to all cities of that class, and as it confers exclusive jurisdiction of all misdemeanors upon the police courts in all cities of that class, it repeals section 4226 of the Political Code, so far as it ap plies to such court in cities included in that class. ID.-EXTENT OF POWER TO CLASSIFY CITIES.-The power to classify cities is not limited to purposes of regulating their incorporation and organization, but includes the purpose of supplying the general laws required by the varying needs of the municipalities so classified.

ID.-PLACE OF IMPRISONMENT.-Although the Cartwright law does not fix any place of imprisonment, it is sufficient that the classification act provides for imprisonment in the city jail, and it is the duty of the court so to provide. ID.-CONSTRUCTION OF CARTWRIGHT LAW.-Held, that the provisions of the Cartwright law do not indicate that it was not the intention that the police court of the city of Los Angeles should not have jurisdiction of a complaint for a misdemeanor under that act, though its phraseology indicates that in some jurisdictions the offense may be triable in the superior court by information or indictment.

PETITION for writ of prohibition to the Police Court of the City of Los Angeles. H. H. Rose, Judge.

The facts are stated in the opinion of the court.

Sidney J. Parsons, O'Melveny, Stevens & Millikin, Wm. J. Variel, J. N. O. Rech, and Gray, Barker & Bowen, for Petitioners.

U. S. Webb, Attorney General, George Beebe, Deputy Attorney General, J. D. Fredericks, District Attorney, and Frank W. Blair, Deputy District Attorney, for Respondent.

SHAW, J.-This is an application for a writ of prohibition to prevent the police court of the city of Los Angeles and H. H. Rose, a judge thereof, from proceeding further in the prosecution of an action of the people of the state of Cali

fornia against the petitioners upon a criminal charge of violating the provisions of an act of the legislature of the state of California, approved March 23, 1907 (Stats. 1907, p. 984), commonly known and designated as the "Cartwright Law."

Petitioners base their application upon two grounds: First, that the act in question fails to designate the offense described therein as a misdemeanor, and likewise fails to specify the place of confinement on conviction. Second, conceding the violation of the provisions of said act to constitute a misdemeanor only, the act of 1901 establishing the police court of Los Angeles, approved March 5, 1901, in so far as it attempts to confer jurisdiction upon said court, is unconstitutional.

Section 1 of the Cartwright act defines a trust and declares every such trust to be unlawful, against public policy, and void. There is no express designation of the offense, and whether such violation of the acts prohibited constitutes a misdemeanor or a felony must be determined by reference to the punishment prescribed for a violation of its provisions. By section 4 of the act it is declared: "Any violation of either or all of the provisions of this act shall be and is hereby declared a conspiracy against trade, and any person who may become engaged in any such conspiracy or take part therein, or aid or advise in its commission, or who shall as principal, manager, director, agent, servant or employee, or in any other capacity, knowingly carry out any of the stipulations, purposes, prices, rates, or furnish any information to assist in carrying out such purposes, or orders thereunder or in pursuance thereof, shall be punished by a fine of not less than fifty ($50) dollars nor more than five thousand ($5,000) dollars, or be imprisoned not less than six months nor more than one year, or by both such fine and imprisonment. Each day's violation of this provision shall constitute a separate offense.'

Under the provisions of this section the acts with which petitioners are charged with doing constitute a public offense or crime. (Pen. Code, sec. 15.) By section 16 of the Penal Code, crimes are divided into two, and only two, classes: 1. Felonies; 2. Misdemeanors. Section 17 of the Penal Code defines these two classes of crimes as follows: "A felony is a crime which is punishable with death, or by imprisonment in the state prison. Every other crime is a misdemeanor.' The law does not define misdemeanors as those offenses pun

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ishable by fine or imprisonment in the county or city jail, but as those for which the penalty imposed, whatsoever it may be, is other than death or imprisonment in the state prison. The conclusion would therefore seem irresistible that, since the offense is clearly a crime for which a penalty is imposed. the punishment for which, however, is not that prescribed for a felony, it must necessarily and logically follow that it is a misdemeanor. As said in Pillsbury v. Brown, 47 Cal. 480 : "A misdemeanor is an act or omission for which a punishment, other than death or imprisonment in the state prison, is denounced by law."

Conceding the offense designated to be a misdemeanor, petitioners, nevertheless, insist that the police court of cities of the one and one-half class, to which the city of Los Angeles belongs, is without jurisdiction to try the case. This contention is based upon the claim that, while the right of the legislature to create the court is unquestioned, the act of 1901, under which such court was established, in so far as it purports to confer upon the court exclusive jurisdiction of all misdemeanors committed in the city, is not only in conflict with section 4426, Political Code, but is an attempted exercise of power not warranted by the constitution.

Said section 4426, Political Code, provides that: "The police court has exclusive jurisdiction of the following public offenses committed within the city boundaries: . . . 3. Breaches of the peace, riots, affrays, committing willful injury to property, and all misdemeanors punishable by fine not exceeding five hundred dollars or by imprisonment not exceeding six months, or by both such fine and imprisonment." Under the provisions of this section it would seem clear that the police court has not jurisdiction of misdemeanors committed under the Cartwright law, for the reason that such offenses are punishable by fines and imprisonment in excess of that over which such courts are thereby given jurisdiction. Section 2 of the act of 1901, creating police courts for cities of the one and one-half class, provides: "Said police court shall have exclusive jurisdiction of all misdemeanors punishable by fine or by imprisonment, or by both such fine and imprisonment, committed in the city where such police court is held; and in all such cases to try and determine the same, convict or acquit, pass and enter judgment

and carry such judgment into execution as the case may require, according to law." Say petitioners in their brief, "Obviously, if this statute is constitutional, the police court has jurisdiction in the present case." Section 1, article VI, of the constitution, provides that the judicial power of the state shall be vested in certain designated courts, "and such inferior courts as the legislature may establish in any incorporated city or town, or city and county." Section 13 of the same article empowers the legislature to fix by law the jurisdiction of any inferior courts which may be established in pursuance of section 1 thereof.

It is contended by petitioners that by section 4426, Political Code, the legislature did, pursuant to section 13 of article VI, fix by law the jurisdiction of police courts throughout the state, and that the jurisdiction attempted to be conferred by section 2 of the said act of 1901 is contrary to the provisions of section 25, article IV, of the constitution, which provides: "The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: First. Regulating the jurisdiction and duties of justices of the peace, police judges, and of constables."

In our judgment, there is no merit in this contention. Section 2 of the act of 1901, whereby jurisdiction to try all misdemeanors committed in cities of the one and one-half class is conferred upon police courts of such cities, is a general law applicable to police courts of all cities included in such classification. The power to classify conferred by section 6, article XI, so far as cities are concerned, is not limited strictly to purposes of incorporation and organization. As said by the supreme court in Rauer v. Williams, 113 Cal. 401, [50 Pac. 691]: "It is entirely too narrow a view to say that the power to classify cities conferred upon the legislature in article XI, section 6, means the power to classify them only for the purpose of regulating their incorporation and organization." And quoting further from the same case: "The power to classify, which is thus conferred, would be meaningless unless the classifications made were to be employed by the legislature for the purpose of supplying the general laws required by the varying needs of the municipalities so classified." In People v. Henshaw, 76 Cal. 436, [18 Pac. 413], the same court says: "That cities containing a large