Ex Parte Sweetman (1907) · DecisionDepot

Ex Parte Sweetman

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal May 24, 1907 No. Crim. No. 84.Published

Before: Hall

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Holding. The court held that a municipal charter provision attempting to set penalties for acts already punishable under state law is void, but that the underlying judgment remains valid because it is authorized by the general penal code of the state.

Issues

Whether a municipal charter provision setting penalties for business license violations conflicts with state law.
Whether a judgment exceeding the penalty limits set by a municipal ordinance is void when the judgment is authorized by the state Penal Code.

Disposition. remanded

Quotations verified verbatim against the opinion

“The judgment against the petitioner is valid under sections 19 and 435 of the Penal Code, and he must be remanded to the custody of the sheriff of Alameda county”

“So far as the said section attempts to authorize the board of trustees to fix any penalty for carrying on a business without procuring a license therefor, it was at the time of its adoption in conflict with sections 19 and 435 of the Penal Code”

Synopsis

PETITION for discharge upon writ of habeas corpus under a judgment imposed in the justice’s court of Berkeley, Alameda County.

The facts are stated in the opinion of the court.

HALL, J.

Petitioner asks to be discharged from custody under a judgment rendered by the justice court of the town of Berkeley, upon his conviction of a misdemeanor for maintaining a place where alcoholic liquors were sold, without having a license therefor as required by the ordinance of the town of Berkeley.

The judgment imposes a fine of $500 upon petitioner, with the usual alternative of imprisonment not exceeding six months in default of payment.

It is insisted by petitioner that both the charter of the town of Berkeley and the ordinance under which petitioner was prosecuted limit the fine that may be imposed to the sum of $300, and that therefore the judgment, being for a greater

[578]

sum, is void. On the other hand, respondent insists that the offense committed by petitioner is made punishable by the general law of the state, to wit, sections 19 and 435 of the Penal Code, and that said 'sections are controlling, and as the judgment is in terms authorized by said sections it is valid.

No point is made by petitioner that the complaint does not charge petitioner with carrying on a business without having a license therefor, or that the ordinance does not require a person conducting such business to have a license therefor. We have, therefore, not critically examined the ordinance or the complaint in this respect. (But see

Ex parte Mansfield,

106 Cal. 400, [39 Pac. 775].)

The charter of the town of Berkeley is a “Freeholdrs” Charter adopted in 1895, and therefore antedates the amendment to the Constitution of 1896, relieving provisions of such charters in “municipal affairs” from the control of general laws.

The charter of the town of Berkeley provides as follows: “Sec. 50. The Board of Trustees shall have power: 1. . . . 5. To license for purposes of regulation and revenue all and every kind of business not prohibited by law to be transacted or carried on in said town, and all shows, exhibitions and lawful games carried on therein; to fix the rates of license upon the same, and to provide for the collection of the same by suit or otherwise. . . .

Ex Parte Sweetman

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Synopsis

HALL, J.

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