thus conferred upon them does not infringe upon the jurisdiction expressly conferred upon some other court by the constitution itself. Section 1, art. 6, vests jurisdiction in such inferior courts as the legislature may establish in any incorporated city or town, or city and county. This must be held to apply to the city and county of San Francisco, as it is the only consolidated city and county in the state. Section 13 of the same article provides: "The legislature shall fix by law the jurisdiction of any inferior courts which may be established in pursuance of section 1 of this article, and shall fix by law the powers, duties, and responsibilities of the judges thereof." Taking these constitutional provisions, together with the act creating the police court, and defining its jurisdiction, and the jurisdiction may be said to be vested in the court by the constitution. We find nothing in the constitution or the statute indicating an intention to make the jurisdiction concurrent in the two courts.

Code. Ex parte Simpson, 47 Cal. 127. This question before us. Taking the several conjurisdiction has been reaffirmed by legislation stitutional provisions together, they vest in subsequent to the adoption of the present the inferior courts such jurisdiction as may constitution. St. 1881, p. 75, (act to create be given them, so long as the jurisdiction an additional police judge's court for the city and county of San Francisco, approved March 7, 1881.) These acts expressly exclude jurisdiction of justices' courts from this class of cases. It seems to us, therefore, that the only question that can arise here is whether the jurisdiction conferred upon police courts in this class of cases is exclusive, or concurrent with that of the superior courts. The evident object and purpose of the constitution in providing for the jurisdiction of superior courts, in cases of misdemeanor of the lower grades, was to leave it to the legislature to provide inferior courts in cities and towns, with jurisdiction to try the same, and that such jurisdiction should vest in the superior courts only until such inferior courts should be provided for. The language of the constitution can bear no other construction. It vests this jurisdiction in the superior court, if not otherwise provided for. Just so soon as the jurisdiction is otherwise provided for, the authority of the superior court to act ceases. This has been held in In opposition to this view, counsel for the the case of the justices' courts. Ex parte respondent lay down this proposition: "In Wallingford, 60 Cal. 103; Gafford v. Bush, order that a jurisdiction may be otherwise Id. 149. In Ex parte Wallingford, the court provided for,' within the meaning of section says: "It is thus seen that by the express 5, art. 6, of the constitution, that jurisdicterms of the constitution the legislature is tion must be vested by the legislature throughempowered to establish justices' courts, and out the state in a system of courts, whose to confer upon them such powers as to it aggregate territorial jurisdiction will be coshall seem proper, provided such powers extensive with the aggregate territorial jushall not in any case trench upon the juris- risdiction of the system of superior courts; in diction of the several courts of record, with other words, it must be taken from the supethe exceptions already noticed. The limita- rior courts as à system, and vested in some tion as to trenching upon the jurisdiction of other courts as a system." And enlarging the several courts of record obviously refers upon this proposition, they say further: to the jurisdiction conferred upon those "The constitution uses the term the supecourts by the constitution itself. For ex-rior court,' (article 6, § 5.) That term is a ample, as the constitution confers upon the collective term. The constitution is dealing, superior court jurisdiction in all cases of fel- not with individual superior courts, as sepony, the legislature could not confer on the arate and distinct courts, and as county justices' court jurisdiction in such a case. establishments, but with the superior courts. But while the constitution also confers on as a state system of courts. It is organizing the superior court jurisdiction in cases of a branch of the judicial department of the misdemeanor, it is of misdemeanors that are state government. It is engaged in creating not otherwise provided for. When the legis- a state institution,—a state establishment. lature, pursuant to the power conferred by The superior court, as a system of courts, is section 11, art. 6, to otherwise provide for the subject-matter with which it is at work. certain or all misdemeanors, does otherwise It delimits the jurisdiction of that system. It provide for certain of them, and confers upon gives that system as a unit the jurisdiction the justice's court jurisdiction in certain over misdemeanors. It declares a subtraccases of misdemeanor, the jurisdiction so tion in a certain event from the jurisdiction, conferred becomes exclusive, for they then not of one distinct superior court, but from become cases of misdemeanor otherwise the jurisdiction of the entire system." In provided for,' over which, according to the support of this contention counsel cite Water express language of the constitution, the su- Co. v. Vallejo, 48 Cal. 72; In re Marks, 45 perior court has no jurisdiction." Cal. 217. But these cases do not sustain the position assumed. This course of reasoning is plausible and ingenious, but not convincing. It goes to the expediency of the constitutional provision under consideration, and the statutes enacted under it, rather than to their construction. But we fail to recognize the force of the argument as affecting

The only conceivable difference between the cases cited, and the one at bar is that the justices' courts are expressly created by the constitution, while the police court is one created by the legislature, under the authority of the constitution. We regard this difference as of no importance as affecting the

the expediency of the law. In counties like sion and uncertainty in the administration San Francisco, or other counties in which of justice. To attempt, in this state, to perlarge cities are situated, where the superior petuate such a distinction, would necessacourt in all its departments is necessarily rily increase the avenues through which crimcrowded with business, the necessity may inals too often escape justice. It is contendexist for the transfer of misdemeanors and ed that the offense charged here was a high petty offenses to inferior courts, with a view misdemeanor, and always prosecuted by inof relieving the higher courts of the burden dictment prior to the adoption of the constiof trying the same, while in other counties tution of 1879, and that justices' courts never no such necessity exists. And it may be for had jurisdiction of such offenses. But this this very reason than the constitution pro- is a mere assertion without authority to supvides for the establishment of inferior courts port it, and this court has expressly held that in cities, towns, and cities and counties, and under the present constitution the legislature not generally throughout the state. It is is empowered to establish justices' courts, further insisted by the respondents that, if and confer upon them such powers as to it jurisdiction is conferred upon the police shall seem proper, and that under this procourts, it is concurrent with the superior vision the legislature may confer jurisdiction courts, and not exclusive; and in support of in the justices' courts over misdemeanors, this position counsel cite Courtwright v. Min- and that such jurisdiction is exclusive. Ex ing Co., 30 Cal. 574; Ex parte McCarthy, 53 parte Wallingford, 60 Cal. 104; Gafford v. Cal. 412; Rosenberg v. Frank, 58 Cal. 395. Bush, Id. 149. The power given the legisWe have carefully examined the cases cited, lature by the constitution is not limited to and find that they lay down the well-estab- any class of misdemeanors, high or low, but lished rule that where jurisdiction is given, extends to such offenses generally. Const. either by the constitution or by statute, to art. 6, § 13. Therefore, to hold that it is untwo different courts, not indicating whether constitutional to try a misdemeanor of the such jurisdiction shall be exclusive or con- kind here charged in a justices' or police current, the same may be regarded as con- court is to hold that the provision of the concurrent in both courts. But these cases do stitution referred to is itself unconstitutional. not reach the question presented here, for the That it was the intent that such jurisdiction simple reason that in our judgment the con- might be conferred upon inferior courts is stitutional provision we are considering does manifest from the fact that the jurisdiction indicate in plain terms that the jurisdiction had already been conferred upon the police of inferior courts, thereafter to be created, court by an act which was in force at the shall be exclusive, and not concurrent. The time the present constitution was adopted. evident purpose of the constitutional provis- St. 1871-72, p. 84. The jurisdiction, so far ion, as evidenced by its language, is that the as it relates to this particular court, has not jurisdiction of the superior court shall be been changed since the constitution was conditioned upon the establishment of other adopted. It was a misdemeanor "already courts upon which the same jurisdiction shall provided for," and strictly within the letter be conferred, and when that condition hap- of the constitution. The point made that pens and the jurisdiction is by the legislature this class of cases cannot be prosecuted in conferred upon such inferior courts, from inferior courts because they must be presentthat time the constitution itself transfers ed by indictment or information does not afsuch jurisdiction from the superior court and fect the question of jurisdiction. As was vests it in the inferior courts. From that said in Ex parte Wallingford, supra: "But time the jurisdiction is "otherwise provided counsel entirely overlook the all-important for," and the jurisdiction of the superior fact that the jurisdiction of the offense is not court at once ceases. determined by the form of procedure by Again, it is contended that the jurisdiction which it is prosecuted, but by the nature of in this case could not constitutionally be con- the offense itself. And since, as already ferred upon the police court, for the reason shown, the superior court has no jurisdiction that the offense is one that must be prose- of such misdemeanors as have been commitcuted by indictment or information, and that ted by the legislature to the justice's court, no such practice is provided for in case of and since the legislature has committed to such inferior courts. What has been said the last-named court all cases of petit larceny, upon the other points made is decisive of this a conclusion quite the reverse of that drawn question, and for the very same reasons. by respondent's counsel would seem to folThe distinction between high and low mis- low from section 976 of the Penal Code." demeanors is one that has never been recog- Section 13, art. 6, Const. provides: "The nized in this state. The constitution and legislature shall fix by law the jurisdiction statutes relate exclusively to felonies and of any inferior courts which may be estabmisdemeanors. The dividing line between lished in pursuance of section 1 of this arthe two is clearly marked and defined. The ticle, and shall fix by law the power, duties, common-law distinction between high and low misdemeanors, depending upon the question whether the offense charged was infamous or not, was more imaginary than real, and calculated to lead to great confu

and responsibilities of the judges thereof." Under this section the legislature has power to confer upon such courts jurisdiction in all cases not vested in some other court by the constitution. Gafford v. Bush, supra. That

3. When, in a complaint in replevin, the goods were alleged to have been taken in a certain store in the city of Salem, without stating the county or state, the court will take judicial notice that the city of Salem is the county-seat of Marion county, and the capital of Oregon, and is located within said county and state.

(Syllabus by the Court.)

Appeal from circuit court, Marion county. Action of replevin by Marx & Jorgensen against E. M. Croisan. Judgment for plaintiffs, and defendant appeals.

W. M. Kaiser, for appellant. N. B. Knight, for respondents.

LORD, J. This was an action in replevin. A demurrer was filed to the complaint, and specified as the grounds thereof "that the same does not state facts sufficient to constitute a cause of action." The court below overruled the demurrer, and, the defendant refusing further to plead, judgment was rendered for the plaintiff. The objection is that the complaint does not allege that the property was seized and located in Marion county, in which the action was brought.

all misdemeanors are included in this power | objection specified in the demurrer apply to deis clearly apparent from the fact that juris- fects of a dilatory nature, but is limited to the subject-matter proper of the action. diction of such offenses is, by the constitution itself, withheld from the higher courts upon provision being made by the legislature vesting it in such inferior courts. These cases could only be "otherwise provided for" by vesting the jurisdiction in such inferior courts as the legislature might establish, for the reason that power to create other courts, and to confer jurisdiction upon them, is confined to such inferior courts. The legislature has acted upon this provision by conferring jurisdiction upon police courts in cities having a population of not less than 30,000, nor more than 100,000, inhabitants, in all misdemeanors. St. 1885, p. 213. If counsel are right that only low misdemeanors can be prosecuted in such courts, so much of this act as includes high misdemeanors is unconstitutional, and the court in which the action is commenced must, in every case, in order to fix its jurisdiction, determine whether the offense charged belongs to one or the other of the two classes of misdemeanors. We find nothing in the constitution which leads us into this labyrinth of uncertainty. Its provisions are plain and direct. If one misdemeanor is within its terms, all must be. That it does confer the power to vest exclu-ty where the property was taken and located, sive jurisdiction of some misdemeanors in and that, unless the complaint shows that inferior courts has been decided by this court, the property was seized and situated in the as we have seen, in two well-considered county where the action was brought, it cases. That it relates, in terms, to all mis- would be "fatally defective." But this obdemeanors is equally clear to our minds.jection, and the argument based on it, does The questions of law involved are raised by demurrer, but counsel have discussed the whole case in their briefs in such manner as to indicate to us that there was no dispute as to the facts, and we have considered the case fully with that understanding. If, however, it is desired, the respondent is allowed 10 days within which to file an answer. If no answer is filed within the time limited, a peremptory writ of prohibition will issue as prayed for.

We concur: BEATTY, C. J.; SHARPSTEIN, J.; MCFARLAND, J.; THORNTON, J.

(17 Or. 393)

It was argued that the action of replevin was local, and must be brought in the coun

not go to the sufficiency of the facts as a cause of action, but the right of the court to exercise its jurisdiction upon the facts, unless the complaint alleges that the property was taken and located in the county wherein the action was brought. It simply says, in effect, that, the action of replevin being local, the cause of action must be brought in the county where the property was taken and located, and that, unless the complaint shows such fact by allegation, the court will have no jurisdiction of the subject thereof. The result, then, is that the ground of objection specified in the demurrer, and upon which the court rendered judgment, is not the true or real one now assigned and relied upon to reverse that judgment. At common law, the cause of error here assigned was taken by special demurrer. Replevin was said to be local because it is necessary to give a local 1. When a defendant wishes to challenge the au-description of the taking complained of, and, thority of a court to try an action in replevin in perhaps, for the further reason that it is a the county in which such action is brought, unless proceeding partly in rem. "In declaring in it was alleged in the complaint that the property was taken in such county, he should distinctly replevin it is necessary to describe, and despecify that objection in his demurrer, and there- scribe truly, the locus in quo,—i. e., the close, by call the attention of the court to the point he house, or common in which the cattle or asked to have decided. goods in question were taken by the defendant, and as the necessity of alleging the true place of caption involves the necessity of laying the true town, parish, or vill, and of course the true county, the venue and county as well as the close, etc., are consequently material, and the action of necessity Gould, Pl. c. 3, § 111. Hence, in

MARX et al. v. CROISAN. (Supreme Court of Oregon. March 25, 1889.) REPLEVIN - JURISDICTION-PLEADING-JUDICIAL

NOTICE.

ON REHEARING,

2. When a defendant demurs to a complaint on the ground that the facts stated do not constitute a cause of action, and the court overrules such demurrer, and the defendant refuses to further plead, and the court renders judgment against him, he waives the right to urge thereafter such dilatory matter as an omission to allege the county or venue in the complaint in replevin. Nor does the local."

rests his objection to the pleading. The object of the demurrer is to raise an issue upon the law, as the answer does upon the facts, and upon the trial the court is confined to that issue. It can never be upheld as an orderly proceeding in a court, while trying an issue of law, to find upon that issue in favor of one party, and to hold that there were other reasons, not involved in the issue, why judgment should be rendered against him."

In Hobart v. Frost, 5 Duer, 673, the demurrer specified as its only ground that the complaint did not state facts sufficient to constitute a cause of action, and the argument in its support was that it appeared on the face of the complaint that the judge making the order for the appointment of the receiver had no jurisdiction, etc., and the court held "that, if the objection to the jurisdiction were valid in itself, it would not be taken under a demurrer specifying, as its only ground, that the complaint did not state facts sufficient to constitute a cause of action.' The ground that ought to have been specified to enable the court to listen to the objection was that the plaintiff had not legal capacity to sue.' The facts set forth in the complaint were plainly sufficient to constitute a cause of action. The objection was not that the action was not maintainable at all, but that the plaintiff had not a personal right to maintain it."

the action of replevin at common law, the to the demurrer requires that it should plainplace, parish, etc., are material and travers-ly state the ground on which the demurrant able, and if the place of taking, parish, or vill was not alleged, the defendant may demur; but the omission is cured by pleading over, or after verdict. Potter v. North, 1 Saund. 347, and note 1 of authorities. This is well illustrated in Potten v. Bradley, 2 Moore & P. 78, 17 E. C. L. 625. There the action was in replevin, and the defendant demurred specially, assigning for causes that it was not alleged, nor did it appear by the declaration, in what particular place or places in the said parish the said cattle, or any part thereof, was taken. Upon the argument the court said that "although, where a plaintiff in replevin omits to name the particular place in the declaration, the defect may be cured by the defendant's pleading over, or by verdict, still that there had been no case in which it had been decided that the objection might not be raised by demurrer." It is to be observed, however, that the objection was taken by special demurrer, and pointed out the matter omitted, but required to be alleged in local actions, and consent was obtained to amend. Special demurrers, as known in the common-law practice, are now abolished, but the principle remains that "the demurrer shall distinctly specify the grounds of objection to the complaint. Unless it does so it may be disregarded." Code, § 67. When, therefore, the defendant wished to challenge the jurisdiction of the court to try the cause of action in that county, unless the complaint alleged that the property was taken in Marion county, he should have distinctly specified that objection in his demurrer, and thereby called the attention of the court to the precise point he asked to have decided. This he had a right to do by demurrer, and must do, or the ob-action, and the objection raised is not specijection would be waived. But, as the case stands, the demurrer is put on the ground that the facts alleged do not state a cause of action; yet the objection relied upon to reverse the judgment rendered is that, the action being local, unless the complaint shows that the goods were taken in Marion county, wherein the action was brought, the court will have no jurisdiction of the cause of action. In some jurisdictions it has been held that judgment can only be given upon the cause assigned in the demurrer, and, if it fails to assign or allege the proper cause, it wholly fails.

In Wilson v. Mayor, 6 Abb. Pr. 6, INGRAHAM, J., said: "I can see no good reason why a demurrant should be allowed to state one cause of demurrer, and succeed on another which he has not stated. The object of the legislature in requiring the demurrer to state the grounds of objection to the complaint was to give the opposite party notice of the alleged defect. The complaint and answer are required to contain a plain statement of the cause of action or defense. No form is necessary, and no technicalities are encouraged, and the same system applied

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It is true that the decisions in these cases are not of courts of last resort, and are not usually regarded by conclusive authority. Nor is it necessary for us to approve them, or go to that extent; yet there can be no doubt but that in a case like the present. where the facts are sufficient as a cause of

fied, that it must be considered as waived and disregarded. The judgment is affirmed.

ON PETITION FOR REHEARING.
(April 9, 1889.)

LORD, J. The argument in the motion for rehearing evidently misconceives the ground upon which the opinion is based, and necessarily renders inapplicable the authorities cited to sustain it. Two things may be noted at the outset,-that there is nothing in the opinion to indicate or warrant the inference that where a complaint fails to state a cause of action, or the court does not have jurisdiction of the subject-matter thereof, that advantage cannot be taken of it at any time, and in any court. Then objections, when well taken, are always "fatally defective," and are never waived; but a different rule prevails when the objections raised are only dilatory and in abatement, and do not involve the sufficiency of the facts to constitute a cause of action, or the jurisdiction of the court of the subject of the action. In the case in hand, the complaint was in replevin, which the defendant demurred to, on the

ground that the facts stated did not consti- but the purpose was to limit and restrict the tute a cause of action; but the defect pointed opinions to the facts upon which they proout and argued under this objection, in this ceeded. What the court objected to in Hotchcourt, was that, the action being local, the kiss v. Elting, supra, was the inferences complaint was incomplete or defective in sought to be drawn from the cases referred omitting to allege the venue or county in to, and not what was decided by them. The which the goods were taken. The venue in contention was that the objection specified replevin, at common law, being local, it was in the demurrer, that the facts did not state necessary to allege in the declaration the a cause of action, waived a want of jurisdiccounty where the goods and chattels were tion in the court to grant the relief sought; taken. The venue is the locality or county that, the objection to the jurisdiction not in which the cause of action is to be tried, having been taken specifically for that cause and is synonymons with the "place of trial." under subdivision 1, § 144, of the Code,—that Hinchman v. Butler, 7 How. Pr. 462. The the court has no jurisdiction of the subject object of the venue is to designate the coun- of the action--but the objection being under ty or place of trial in which the action is to subdivision 6 for a different cause, namely, be tried. It has no reference to the suffi- that the complaint does not state facts sufficiency of the facts as a cause of action. cient to constitute a cause of action, it canThese are the wrongful taking of another's not be entertained on demurrer, and the property. Nor does the omission go to the cases cited were referred to in support of that jurisdiction of the subject of the action, but view. When this argument was pressed upcontests and denies the right of the court to on the court as the proper inference to be exercise its jurisdiction without the venue or drawn from those cases, HOGEBOOM, J., recounty is alleged in the complaint. It seeks sponded that "if they are intended to apply to abate the action,—to suspend further pro-to a case like the present, I cannot yield my ceedings, unless the county is stated.

assent to them;" that is to say, if the doctrine of those cases were to be carried to the extent that a demurrer specifying that the facts stated did not constitute a cause of action waived or precluded the right to raise the objection that the court did not have jurisdiction of the person or subject-matter, then, as those cases were not conclusive on that court, he should not assent to them. The reason was obvious. These are incurable objections when well taken, and which, whether the objection be specified or not, is never waived, and cannot be disregarded.

That an action in replevin is a subject within the jurisdiction of the circuit court every lawyer will admit, but, when the action is local, as in replevin, before the court is authorized to take jurisdiction of such actions, unless waived, the venue must be stated in the complaint. But the fact that it may be waived, or is cured by pleading over, is conclusive of the point that it does not go to the substance of the facts, or the subject of the jurisdiction. It is an objection that may be taken advantage of by demurrer or answer in some jurisdictions, but, It may be admitted that the opinion of the however pleaded in abatement, the pleading court, as expressed in these cases, was liable must specify the objection, and the attention to the objection urged, and was broad enough of the court called to the point asked to have to include incurable matter, as a want of judecided. In a word, the elementary fact that risdiction of the subject-matter, but, when such a plea is dilatory, and in abatement of read in the light of the facts to which it apthe action, is decisive that it does not touch plied, it did not relate to incurable defects, the sufficiency of the facts as a cause of ac- or matters without the jurisdiction of the tion, or that the subject-matter is not within court. In Hobart v. Frost the quotation the jurisdiction of the court. When, there- made was for the purpose of illustrating that fore, the defendant, by his demurrer, speci- a demurrer specifying as its only ground fied as the ground thereof that the facts stat- that the complaint did not state facts, etc., ed did not constitute a cause of action, and did not apply to the objection that the plainthe court overruled it, and rendered judg- tiff has not legal capacity to sue. In Insurment against him because he refused to fur-ance Co. v. Baldwin, 37 N. Y. 648, it was ther plead, his objection being confined to held that, on demurrer that the complaint the cause specified, he necessarily waived all does not state facts sufficient to constitute a dilatory pleas, and consequently cannot take cause of action, the defendant cannot object advantage now of the omission to allege the that the plaintiffs have not capacity to sue, venue. The reason is that the cause of the but, to avail himself of this objection, it demurrer is limited to the subject-matter should be specifically set forth as a cause of proper of the action, namely, the wrongful demurrer. The court say: "The complaint taking of the goods of the defendant, and has states a good cause of action, no application to any dilatory matter what-does omit to allege that the plaintiffs are ever, such as the omission to allege the venue, a corporation having capacity to sue. This or incapacity to sue. Green & D. Pl. § 909, and cases cited. Nor is there anything in the principle as applied to the facts as presented by this record inconsistent with Hotchkiss v. Elting, 36 Barb. 50. Nor does this case overrule, as I read it, the cases cited,

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but

objection must therefore be regarded as waived. It is just and reasonable that the rule should be so. If this objection to the complaint is well taken, and the defendant had specified this ground of demurrer, the plaintiff would most probably have amended