In re Knight

The petitioner is held in custody by the sheriff of Butte County upon an order made by a justice of the peace of said county, sitting as a committing magistrate, holding him to trial in the superior court of said county for the violation of Ordinance No. 307, passed and adopted by the board of supervisors of said county of Butte on the second day of August, 1921. The avowed purpose of said Ordinance No. ^307 is the enforcement of 'the eighteenth amendment to the federal constitution, prohibiting the sale, manufacture, transportation, etc., of alcoholic liquors within the limits of said county. Section 2 of said ordinance provides :

“All acts or omissions prohibited or declared unlawful by said Eighteenth Amendment, or by the said Volstead Act, are hereby prohibited and declared unlawful; and any such act or omission is hereby declared to be a violation of this ordinance and is hereby made a misdemeanor. Any such violation of this ordinance is punishable by a fine of not more than six hundred dollars, or imprisonment in the county jail for not more than seven months, or by both such fine and imprisonment. All fines collected under this ordinance shall be paid into the county treasury.”

The specific charge against the defendant is that he sold intoxicating liquor within the limits of the county of Butte. It is admitted, however, that the offense of which the petitioner is accused was committed, if at all, within the limits of the city of Oroville, which is a municipal corporation

[1] The petitioner contends that his restraint by the sheriff of Butte County is illegal for the reason that the order of the magistrate upon the authority of which said sheriff claims the legal right to hold him was beyond the power or jurisdiction of the magistrate to make and is, therefore, absolutely void. The basis of the contention is that, a municipality and a county being separate and distinct governmental entities or agencies, and, within the scope of its powers, each being supreme within its own territorial limits, the operative force of an ordinance enacted by the governing board of the latter and which involves the exercise of any of the police powers directly granted to cities, towns, and counties by the constitution (Const., art. XI, sec. 11) cannot be so extended as to affect or apply to persons violating within the limits of a municipality the provisions of such ordinance.

In Ex parte Roach, 104 Cal. 272 [ 37 Pac. 1044 ], the petitioner was held by the sheriff of Kings County under a warrant of arrest issued by a justice of the peace of said county charging him with having sold at his saloon in the city of Hanford intoxicating liquors, in violation of an ordinance of the board of supervisors of said county. The city of Hanford was then a municipal corporation of the sixth class, having been organized under the Municipal Government Act of 1883, and had prior to the time at which the petitioner was alleged to have violated the county ordinance passed an ordinance providing for the issuance of licenses for the sale of intoxicating liquors. The petitioner had received from the city of Hanford a license to carry on the business of retailing liquors within that city, which license was in force at the time of his arrest. It was contended by the petitioner in that case, as it is contended by the petitioner here, that his arrest under the county ordh nance was illegal because the supervisors of the county of Kings were without any police power within the city of Hanford; “that the ordinance passed by that body under which he was arretsed is limited in its operation to those portions of the county not included within the boundaries of any municipality therein.” After quoting in the opinion section 11 of article XI of the constitution and referring thereto, the court says:

“The power to make these regulations is by this section conferred upon the city as well as upon the county, and must be held to be equally authoritative in each. It is a portion of the law-making power which the people through their constitution have conferred upon these respective bodies, and its exercise is entitled to the same consideration and to receive the same obedience as that portion of the same power which by the same instrument has been conferred upon the legislature. The regulations made under this authority are none the less a part of the law because the authority to make them is conferred immediately by

the constitution, than if it had been conferred mediately through an act of the legislature. The only limitation upon the exercise of the power is that the regulations to be made under it shall not be ‘in conflict with general laws.’ As this limitation applies equally to. regulations of the county and the city, it cannot be held by the terms of the limitation that the regulation of either of these bodies is a general law for the other, and it is held that an ordinance passed by a county is not a ‘general law’ within the meaning of this section of the constitution. (Ex parte Campbell, 74 Cal. 25 [ 5 Am. St. Rep. 418 , 15 Pac. 318 ].)”

Again, in the same case, the court makes these further pertinent observations:

“It is not to be supposed that it was the intention of the people through their constitution to authorize a county to exercise the same power within the territory of the city as the city itself could exercise, or to confer upon the county the right to interfere with or impair the effect of similar legislation by the city itself. Mr. Dillon says (1 Dillon on Municipal Corporations, sec. 184) : ‘There cannot be at the same time within the same territory two distinct municipal corporations exercising the same powers, jurisdictions, and privileges.’ Full effect can be given to the section by holding that each has been given the exclusive right of legislation within its own particular boundaries. By the organization of a city within the boundaries of a county the territory thus organised is withdrawn from the legislative control of the county upon the designated subjects, and is placed under the legislative control of its own council; and the principle of local government which pervades the entire instrument is convincive of the intention to withdraw the city from the control of the county (italics ours), and to deprive the county of any power to annul or supersede the regulations of the city upon the subjects which have been confided to its control.”

Ex parte Mansfield, 106 Cal. 400 [ 39 Pac. 775 ], and Ex parte Pfirrmann, 134 Cal. 143 [ 66 Pac. 205 ], refer to Ex parte Roach, supra, and expressly approve and affirm the doctrine of that case. In the Pfirrmann case the petitioner was charged with violating an ordinance of the county of Los Angeles requiring a liquor license of fifteen dollars per month to be taken out by persons engaging in the

11 Whether or not the license fee or tax demanded by the county of Los Angeles under its ordinance be considered a fee or tax for revenue or for regulation of the business, is an immaterial matter; for, by virtue of the provisions of an act of the legislature (Stats. 1901, p. 635), a county has no power to demand a license fee or tax, either for purposes of . revenue or regulation, from persons carrying on business within the limits of municipalities. Among other matters, that act provides: ‘Boards of supervisors of the counties of the state, and the legislative bodies of the incorporated cities and towns therein, shall, in the exercise of their police powers, and for the purpose of regulation, as herein provided, and not otherwise, have power to license all and every kind of business not prohibited by law, and transacted and carried on within the limits ol their respective jurisdictions. ’

“Prior to the passage of the aforesaid act, it may be stated that, the law was settled to the effect that within municipalities a board of supervisors had no power to enact police and sanitary measures, and therefore had no power therein to impose a license fee or tax for the purposé of regulating- the liquor business, or any other business. In the absence of some direct and explicit constitutional provision, this court would not declare the existence of such a power; for difficulties and confusion arising from a clash of jurisdictions would be the only result to follow, if both the county and the municipality possessed the power of enacting police and sanitary measures within the confines of a municipality.”

It will be observed that in the cases to which we have just referred and from which we have taken the above excerpts, there existed in the municipalities involved therein at the time of the proceedings against the petitioners ordinances regulating the retail liquor traffic within the limits of those municipalities. In the present ease, there were also municipal ordinances existing in the city of Or oville, purporting to regulate the business of selling intoxicating

Counsel for respondent cites many authorities—28 Cyc. 696, and cases from other jurisdictions—which he insists support the theory, vigorously pressed in resistance to the position of the petitioner, that an ordinance by the supervisors of a county dealing with subjects as to which a municipality is empowered to enact prohibitory or regulatory ordinances cover and affect the entire county, including the territory embraced within any municipality existing therein, and so may be enforced as against penal acts in violation thereof committed within the limits of such municipality. These cases need not be named herein [3] It is sufficient to say that they all agree that a municipal corporation has the power to make penal an act which has already been made so by a state law, so long as there is nothing in the ordinance making the act penal in conflict with a general

Our conclusion is that the petitioner, having committed the act for which he is now being restrained of his liberty within the limits of the city of Oroville, is not • subject to prosecution under Ordinance No. 307 of the county of Butte and that his restraint is, therefore, illegal.

Accordingly, the writ is granted and the petitioner is discharged" from the custody of the sheriff of Butte County.

Burnett, J., and Finch, P. J., concurred.