Ex Parte Luening

[77]

ALLEN, J.

Application for writ of

habeas corpus.

The petitioner was charged in a sworn complaint, filed with a justice of the peace of San Bernardino county, “as a person found in a public place with a loaded revolver, a deadly weapon, concealed upon his person, in violation of County Ordinance No. 102.” To such charge he entered a plea of guilty, and judgment followed. Under a commitment issued out of said judgment he is held in custody. Ordinance No. 102 was adopted by the board of supervisors of San Bernardino county prior to the arrest of the petitioner, and is as follows: “Section 1. Any person found in any public place with a concealed deadly weapon upon his person, is punishable by a fine of not less than $5.00 nor more than $100.00 or by imprisonment in the county jail not less than five nor more than one hundred days; provided, however, that the sheriff of San Bernardino county may grant permits to carry such weapons to officers and other persons, as he may deem fit.”

The claim of petitioner is that the affidavit of complaint did not confer jurisdiction of the subject matter upon the justice, because the ordinance, being a private statute, was not pleaded by reference to its title and date of passage, as required by section 963 of the Penal Code, and, there being no general law upon the subject of which the justice could take judicial notice, the affidavit was fatally defective. That, as to the superior courts, ordinances of cities and counties are private statutes, and should be pleaded as such, is unquestioned.

(Tulare

v.

Hevren,

126 Cal. 226, [58 Pac. 530].) That they are private statutes as to inferior local courts is not clear. In

Ex parte Davis,

115 Cal. 445, [47 Pac. 258], it is said that when the proceeding is in a municipal court, ordinances of such municipality are the peculiar laws of that forum, and of which judicial notice will be taken, because they are among the things which, as to it, are established by law. (Code Civ. Proc., sec. 1875, subd. 2.) And such courts are instituted for the express purpose of enforcing municipal ordinances. We think, upon analogous principles, the same rule should apply to a justice court when the proceedings before it involve the violation of a local ordinance of the county. “Where an offense is created by statute and a penalty inflicted, it is necessary that the party seeking a recovery should, in general, refer to such statute, but we do not understand this rule to apply to pleadings in justices’ courts, which are usually without