Ex Parte Mogensen

KERRIGAN, J.

The petitioner was convicted upon a charge of violating an ordinance of the town of Los Gatos, prohibiting the alcoholic liquor traffic. He seeks, by writ of

habeas corpus,

discharge from the custody of the sheriff of the county of Santa Clara.

This proceeding, among other things, involves an inquiry into the validity of that ordinance. It was passed June 28, 1906, and is called “Ordinance Number 130." The part germane to this examination is as follows:

“Section 1. It shall be and is hereby made unlawful for any person or persons either as owner, principal, agent, servant, employee or otherwise, to establish, open, keep, maintain, or carry on, or assist in establishing, opening, keeping, maintaining or carrying on, within the corporate limits of the Town of Los Gatos, any tippling house, dramshop, cellar, saloon, bar, sample room, hotel or other place where spirituous, vinous, malt or mixed liquors are sold, given away, handed out, purveyed or furnished."

Section 2 provides that such liquors may be sold for medicinal, chemical and mechanical purposes as provided therein.

Section 3 declares violations of the ordinance to be misdemeanors, and fixes a punishment therefor.

The power to pass such an ordinance is granted in section 11 of article XI of the state constitution.

(Ex parte Campbell,

74 Cal. 20, [5 Am. St. Rep. 418, 15 Pac. 318];

Ex parte Noble,

96 Cal. 362, [31 Pac. 224];

Ex parte Christensen,

85 Cal. 208, [24 Pac. 747].) It can only be invalidated by some general law of the state with which it is in conflict.

Petitioner contends that since the cases just cited were decided, the general law has been changed by section 3366 of the Political Code, which, he argues, empowers legislative bodies of incorporated cities and towns to regulate by licensing, but not to prohibit, a business not forbidden by law. So far as towns of the sixth class are concerned, of which Los Gatos is one, this section of the Political Code was repealed by implication by the amendment of the municipal