In Re Tosello

NOURSE, J.

The petitioner alleges that he is unlawfully confined by the sheriff of Santa Clara County under

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color of a commitment of the police court of the city of San Jose after his conviction of a violation of an ordinance of that city, approved November 6, 1917, entitled “An ordinance pertaining to and providing for limiting and regulating the sale of spirituous, malt, vinous or other alcoholic liquors . . . ”; and that the conviction and confinement are void ‘because the ordinance is unconstitutional as contravening the eighteenth amendment to the constitution of the United States, in that it regulates, limits, and permits the sale, of intoxicating liquors under certain conditions.

The first section of the ordinance provides as follows : “On and after January 1, 1918, no person, either as principal, agent, servant or employee, shall open, establish, keep, maintain or carry on within the corporate limits of the city of San Jose, any tippling house, dram shop, cellar, saloon, bar, bar-room, sample-room, buffet or other place where spirituous, vinous, malt or other alcoholic liquors are sold or given away, except as provided in section two (2) hereof. ’ ’ The second section provides that it shall not be unlawful under the ordinance to serve alcoholic liquors in the home to members of the family or to guests without compensation; to distribute wine at sacramental service; for any registered pharmacist to sell or dispense alcoholic liquors at a pharmacy for medicinal purposes only; to sell or serve vinous and malt liquors with meals in any hotel, restaurant, or club under a permit obtained from the city council ;■ or to sell alcoholic liquors in sealed or corked packages under a license for that purpose obtained from the city council. Section 4 of the ordinance authorizes' the city council to grant permits to sell liquors in accordance with the terms of the ordinance.

The complaint on which the petitioner was tried and convicted charges that he did “at the time and place aforesaid, willfully and unlawfully open, establish, keep, maintain, and carry on within the corporate limits of the city of San Jose ... a tippling house, dram shop, sample room and place where spirituous, vinous, malt and other alcoholic liquors wére sold and given away, contrary to the provisions of said ordinance of said city.”