Majority — Day J.
p. 242DALY v. ELTON. No. 108. Argued October 11, 12, 1904. Decided November 14, 1904.
Syllabus
ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.Decided on authority of Dobbins v. Los Angeles, ante, p. 223.
The facts are stated in the opinion.
Mr. Lynn Helm and Mr. Edward C. Bailey, with whom Mr. Henry T. Lee, Mr. J. R. Scott and Mr. Charles W. Chase were oh the brief, for plaintiff in error.
Mr. W. B. Mathews, with whom Mr. Herbert J. Goudge was on the brief, for defendant in error.[1]
delivered the opinion of the court.
This case is practically- determined by views expressed in Dobbins v. The City of Los Angeles, just decided. It wa^ a petition for a writ of habeas corpus to discharge Daly from custody, in a prosecution under the ordinance under consideration in the Dobbins case. The prayer of- the petition was denied and the writ discharged. In re Daly, 139 California,
p. 243
216. Under the California practice, in the absence of issue joined the allegations of the petition are taken as true and the facts alleged therein are taken as: admitted. In re Smith, 77 Pac. Rep. 180 . The petition made allegations attacking the ordinance which, if true, would render it invalid for the reasons stated in the Dobbins case, supra, and the petitioner upon the record made should have been discharged from custody.
It is therefore ordered that the judgment of the Supreme Court of California be reversed and the cause remanded for further proceedings ■ not inconsistent with the views announced in ' the Dobbins case, supra.