Ex Parte Yung

California Court of Appeal Jan 20, 1908 No. Crim. No. 74.Published

Before: Taggart

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Holding. The court held that a county ordinance is valid if the board of supervisors possessed the legal authority to enact it, regardless of whether the ordinance incorrectly recites the source of that power or contains surplusage regarding its enactment.

Issues

Whether a county ordinance is invalid if it incorrectly recites that it was enacted pursuant to an unconstitutional statute rather than the board's independent authority.
Whether a misrecital of the source of legislative power affects the validity of an ordinance if the power to enact it otherwise exists.

Disposition. Writ dismissed and prisoner remanded.

Quotations verified verbatim against the opinion

“a misrecital in an ordinance of the source of power to enact it does not affect its validity if in point of fact the power to enact it existed.”

“The ordinance, then, is a valid one passed by the board of supervisors of Orange county, and as against the objection here made to it entitled to be enforced.”

Synopsis

APPLICATION for discharge on writ of habeas corpus addressed to the constable of Orange Township, County of Orange. H. A. Miller, Constable.

The facts are stated in the opinion of the court.

[441]

TAGGART, J.

Habeas corpus.

Petitioner is under arrest and in the custody of a constable of Orange township, county of Orange, charged with violating the provisions of Ordinance No. 49 of said county, entitled: “An Ordinance Prohibiting the Business of Selling . . . Intoxicating Liquors, within the County of Orange, ’ ’ etc.

The illegality of his imprisonment is claimed to be because ordinance No. 49 was passed and enacted in accordance with the provisions of section 13 of the County Government Act of 1897 which was declared to be unconstitutional by the supreme court of the state in

Ex parte Anderson,

134 Cal. 69, [86 Am. St. Rep. 236, 66 Pac. 194].

The return to the writ, which is not controverted, shows that ordinance No. 49 was not only passed by vote of the electors of Orange county as provided by section 13 of the County Government Act, but was regularly passed and adopted by the board of supervisors of the county and duly published in the manner required by law for county ordinances.

The ordinance, as adopted by the board of supervisors, shows the enacting clause in the form provided by section 26 of the Act of 1897 followed by its number and title of the ordinance and the recital, “As an ordinance of the County of Orange, State of California, under and in accordance with the provisions of section 13 of an Act entitled: ‘An Act to Establish a Uniform System of County and Township Governments, ’ approved April 1, 1897, it is ordained as follows,” before section 1 of the ordinance.

It is urged by petitioner that by this recital the board declared that it enacted the ordinance pursuant to and by reason of its passage by the people under section 13 and, therefore, notwithstanding all the formalities requisite to the passage and publication of an ordinance by the board itself were observed, the ordinance must be regarded as the act of the electors, and thus within the rule declared in Ex

parte Anderson.

It is admitted that independent of section 13 the board is authorized to pass such an ordinance, and it is clear that the title being so placed after the enacting clause may be treated as mere surplusage, as it has been held that the provisions of the constitution relating to the titles to legislative acts have no application to ordinances of a municipality or county, and there is no requirement of the statute that such ordinances

Ex Parte Yung

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Synopsis

TAGGART, J.

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