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People v. Connolly

22 Cal. App. 808 Court Third Appellate District. Decision date 1913-07-02 Docket Crim. No. 203 English

Delivered by BURNETT, J.

Contents

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p. 808
[Crim. No. 203.
Third Appellate District.
July 2, 1913.]
THE PEOPLE, Respondent, v. J. D. CONNOLLY, Appellant.

Headnote

Intoxicating Liquors—Sale in Violation of Ordinance—Suit to Abate Nuisance.—Judgment affirmed on authority of Ex parte Ellsworth, 165 Cal. 677 .
APPEAL from a judgment of the Superior Court of Sonoma County. Thos. C. Denny, Judge.
The facts are stated in the opinion of the court.
T. J. Geary, for Appellant.
J. E. Pemberton, Clarence F. Lea, and G. W. Hoyle, for Respondent.

The suit was at the instance of the district attorney to abate a nuisance maintained by the defendant in selling and threatening to sell intoxicating liquors, in violation of a certain ordinance adopted, under the initiative, by the electors of Sonoma County at the general election held November 5, 1912. The principal question here is as to the validity of said ordinance. We are, however, relieved of the duty of considering the various objections to said ordinance urged by counsel for appellant in the briefs and at the oral argument, as the matter is foreclosed by the decision of the supreme court in the Application of E. N. Ellsworth for a writ of habeas corpus, 165 Cal. 677 , [ 133 Pac. 272 ].

In view of that decision, the only remaining question that might give rise to an honest difference of opinion is whether the violation of the ordinance, which prescribes no penalty, should subject one to the charge of maintaining a nuisance within the definition of that term as found in the statute.

At the oral argument, though, it was stated and not denied that the defendant had voluntarily enlarged his business as

p. 809
hotel-keeper so as to remove him from the inhibition of said ordinance, and, as we are informed said ordinance has been made complete by suitable action of the board of supervisors, the suggested consideration is virtually a moot question and may be passed as of only academic importance.

The judgment is affirmed.

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

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