majority"> THE COURT.

In the above-entitled matter it appears that petitioner was convicted in the justice’s court of Sacramento-township, Sacramento county, for violating the act of the legislature approved March 6, 1909 (Stats. 1909, p. 140), prohibiting the mooring and anchoring of house boats in rivers and streams of this state within certain limits.

It is averred in the petition for the writ that “the said matter came on for hearing before the superior court of the county of Sacramento, state of California, and after consideration by the same the said judgment of the said justice court was by the said superior court . . . upheld and affirmed.”

*735 It appears that no application or petition has been filed by the petitioner for a writ of habeas corpus in the said superior court. It appears also from the order of said court that when said appeal came on to be heard in said court the appeal was dismissed on the ground “that there is no statement on motion for a new trial settled and filed by or with the justice of the peace or filed with this court as required by law, and . . . this court has absolutely no jurisdiction of this appeal. ’> There was, therefore, no hearing upon the merits, and the real question at issue was not before the court, namely, the validity of the act called in question.

Rule XXVI [144 Cal. 1, 78 Pac. xi] provides that the application for the writ shall first be made to the lower court, unless circumstances are set forth in the application, such as the appellate court may deem sufficient to warrant the issuing of the writ originally from the appellate court.

The only fact here shown in the petition, on which the writ is asked for originally by this court, is that the matter was fully heard and determined by the lower court and the validity of the act of the legislature passed upon. The order of the lower court shows this not to be the fact.

The writ is denied.

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