Arfsten v. Superior Court

The application is to prohibit the superior court from proceeding to try petitioner on an information in which it is charged that on a certain date he did “willfully and unlawfully sell intoxicating liquors, to wit, whiskey, to one Dow Chilson.” The prosecution is sought to be upheld by reason of two certain ordinances passed by the board of supervisors of the county of Mendocino. The first is known as ordinance No. 161 and, as far as necessary to quote, is as follows: “It shall be and hereby is made unlawful for any person to sell any alcoholic, spirituous, vinous, malt or other intoxicating liquor within the county of Mendocino, state of California, Provided, that this ordinance shall not apply to sales made at his regular place of business under authority of a license by any person holding

It is admitted that the authority of the board of supervisors to enact such legislation finds its basis in section 11, article 11 of the constitution, providing that “Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.” It is not disputed that said ordinance 161 involved the exercise of authority conferred by said section 11 of the constitution, but it is claimed that the purported amendment is invalid by reason of the fact that it is in conflict with a general law. It is asserted that the cáse is covered by section 435 of the Penal Code, providing that “Every person who commences or carries on any business, trade, profession or calling, for the transaction or carrying on of which a license is required by any law of the state, without taking out or procuring the license prescribed by such law, is guilty of a misdemeanor.” It is to be observed that no specific penalty is prescribed therein, but it is supplied by section 19 of the Penal Code as follows: “Except in eases where a different punishment is prescribed by the code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or by both.” It cannot be disputed that the expres

Of the ordinance it is to be noticed that the “business” of selling liquor without a license is not, specifically and in so many words, penalized, but this is the effect of the terms employed. In the first place, the ordinance recognizes as lawful the sale of liquor at his regular place of business by one holding a liquor license. In other words, one holding a regular license may conduct the business of liquor selling without incurring the penalty of the ordinance. But if he conducts the business without a license, although at a “regular place of business,” he is liable to a fine of six hundred dollars and imprisonment for the term of seven months. This necessarily follows, because a man cannot “carry on” or conduct the liquor business without selling liquor and, under the terms of the ordinance, he is subjected to the penalty if he makes one sale of liquor. A person may sell liquor without engaging in the liquor business but the converse does not follow. The incident does not include the principal but the principal includes the incident. In Merced County v. Helm, 102 Cal. 166 , [ 36 Pac. 400 ], it is said: “The distinction between a single act and the business in which the act is done is very marked, and is well recognized in adjudged cases.” It is also declared that a tax upon the sales is a tax upon the different acts in the transaction of the business.

In Ex parte Seube, 115 Cal. 629 , [ 47 Pac. 596 ], it is said that an ordinance which embraces all who sell “certainly embraces all who make a business of selling.” We have this situation, then: If a person, without a license, “carries on” the business by doing the only thing which enables him to carry it on and for which the business is conducted, the ordinance subjects him to a penalty in excess of that which,

But if the sale of liquor should be considered separate and distinct from the liquor business and not a necessary part of said business, still it would seem unreasonable to impose a greater penaty for the former than for the latter. Under the general law, if a person without a license carries on, in Mendocino County, the liquor business for a single day he would be liable to a punishment not to exceed imprisonment in the county jail for six months and a fine of five hundred dollars, but if within that day he should make one hundred sales of liquor he might, under the ordinance, be subjected to one hundred prosecutions with the possibility of the increased penalty for each offense. In this view, accepting the general law as the test, the ordinance would seem to be unreasonable and void.

In Ex parte Solomon, 91 Cal. 440 , [ 27 Pac. 757 ], it was held, as stated in the syllabus, that “Section 70 of ordinance 1587 of the city and county of San Francisco, fixing the minimum penalty for the offense of having lottery tickets in possession at a fine of $250.00, or imprisonment for three months, and allowing a maximum penalty of $1,000.00, or imprisonment for six months, is not in harmony with sections 320 to 326 of the Penal Code, regulating and punishing kindred and more serious offenses respecting lottery drawing, the selling of lottery tickets, etc., which can only be punished by. a fine not exceeding $500.00 or by imprisonment not exceeding six months, without any minimum penalty, and such ordinance is unreasonable and void, as being in conflict with the general laws of the state.”

In the case of In re Sic, 73 Cal. 142 , [ 14 Pac. 305 ], the prosecution was under section 3 of an ordinance of the city of Stockton providing that “It shall be unlawful for two or more persons to assemble, be, or remain in any room or place for the smoking of opium or inhaling the fumes thereof.” Although the ordinance was directed against the smoking of opium “in any room or place” the supreme court held that it covered the sime offense as included within the provisions of section 307 of the Penal Code, as follows: “Every person who opens or maintains, to be resorted to by other persons, any place where opium or any of its preparations, is sold or

Granting, however, that it is competent for the board of supervisors to so discriminate, the ordinance is so framed that it is impossible to say that the part imposing a penalty for the sale in conducting the business is invalid and for the other sales is valid. The section in that respect is unlike that presented in Ex parte Mansfield, 106 Cal. 400 , [ 39 Pac. 775 ], and Ex parte Stephen, 114 Cal. 278 , [ 46 Pac. 86 ],

Of course, what we have said simply applies to the amendment to ordinance 161 increasing the penalty. The amendment being invalid, it would leave unaffected said ordinance 161 as originally passed by the board of supervisors.

In Ex parte Snowden, 12 Cal. App. 521 , [ 107 Pac. 724 ], a municipal ordinance punishing a greater rate of speed than that forbidden by the state law was held not to be in conflict with the latter on the ground and for the reason that “the mere fact that the state, in the exercise of its police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. ’ ’

In re Guerroro, 69 Cal. 88 , [ 10 Pac. 261 ], involved the authority of the city of Los Angeles to pass an ordinance requiring a license fee of fifty dollars a month for carrying on the business of a saloon. It was held that the ordinance was “in harmony with the constitution of the state, the general laws of the state and the city charter.”

The ordinance upheld in Ex parte Johnson, 73 Cal. 228 , [ 15 Pac. 43 ], made it a misdemeanor to frequent a house of prostitution, while the general law (Pen. Code, sec. 315) is directed against the maintenance of such place or residence therein.

In Ex parte Chong, 90 Cal. 617 , [ 27 Pac. 436 ], the petitioner was convicted of violating an ordinance against carrying concealed weapons. There was no specific provision of the statutes or constitution upon the subject. The court held that the penalty imposed by the ordinance was not unreasonable.

Ex parte Hong Shen, 98 Cal. 681 , [ 33 Pac. 799 ], concerns certain regulations for the sale of opium and it was held that there was no conflict with the general law.

In Ex parte McClain, 134 Cal. 110 , [ 86 Am. St. Rep. 243 , 54 L. R. A. 779 , 66 Pac. 69 ], an ordinance making it unlawful for any person to have in his possession a lottery ticket and to punish its violation was upheld. It was not contended that the ordinance was in conflict with any general law but that it was unreasonable and oppressive.

In re Berry, 147 Cal. 523 , [ 109 Am. St. Rep. 160 , 82 Pac. 44 ], relates to a county ordinance prohibiting the use of automobiles in the public roads at night. There was no state law in conflict with it and it was held to be not, unreasonable or void.

Harter v. Barkley, 158 Cal. 742 , [ 112 Pac. 556 ], involved the validity of a certain ordinance providing certain regulations “for the tapping and connection with the sewers.” The ordinance was held to be reasonable and within the police power of the board of supervisors.

If said ordinance 189, increasing the penalty for the violation of ordinance No. 161, is invalid, it follows, we think, that the court is without jurisdiction and prohibition is proper. (Green v. Superior Court, 78 Cal. 556 , [ 21 Pac. 307 , 541]; People v. Palermo Land & Water Co., 4 Cal. App. 717 , [ 89 Pac. 723 , 725].)

In Gardner et al. v. Superior Court of Los Angeles Co., 19 Cal. App. 548 , [ 126 Pac. 501 ], the district court of appeal for the second district held that, in a case like this, the writ of prohibition would not lie without an affirmative showing that the petitioner is without any “plain, speedy and adequate remedy in the ordinary course of law.” The two decisions cited in support of the doctrine were rendered in civil cases and the later certainly qualifies if it does not overrule the earlier decision. In Lindley v. Superior Court, 141 Cal. 220 , [ 74 Pac. 765 , it is said: “If, as contended, the superior court is without jurisdiction, there is, of course, a remedy by appeal for any adverse judgment affecting petitioner, and it is not sufficient ground for interfering by prohibition that the trial will be expensive and troublesome.”

In Ophir Silver Min. Co. v. Superior Court, 147 Cal. 467 , [3 Ann. Cas. 340, 82 Pac. 70 ], however, it was held that “Where the court has no jurisdiction of the subject matter of the action and the remedy by appeal is inadequate for the reason that the trial would involve heavy' expense for transporting witnesses which could not be recovered as legal costs, prohibition will lie notwithstanding the remedy by appeal.”

The rule in criminal eases, sanctioned by right, reason and simple justice, as we conceive it, is stated by the supreme court in Terrill v. Superior Court, (Cal.) 60 Pac. 38 , and by this court in Ex parte Hayter, 16 Cal. App. 225 , [ 116 Pac.

The demurrer is overruled and the alternative writ is made peremptory.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 30, 1912.