Matter of Petition of Burke

HENSHAW, J.

Petitioner was arrested and convicted in the justice’s court of a violation of the provisions of section 172a of the Penal Code, which section, in so far as it is pertinent to this consideration, reads as follows: “Every person who, upon or within one and one-half miles of the university grounds or campus, upon which are located the principal administrative offices of any university having an enrollment of more than one thousand students, more than five hundred of whom reside or lodge upon such university grounds or campus, sells, gives away, or exposes for sale, any vinous or alcoholic liquors, is guilty of a misdemeanor.” He sued out and obtained a writ of

habeas corpus

from the superior court of San Mateo County asserting the illegality of this law and was remanded to custody. In like manner he was remanded under a writ of

habeas corpus

sued out by him and issued from the district court of appeal. As his petition before this court presents the question of the constitutionality of the section

[302]

of the Penal Code above quoted, for the final determination of that question a writ was issued from this court.

Petitioner contends that the act under which he was convicted violates article I, section 2, of the constitution of this state, which provides that all laws of a general nature shall have a uniform operation; that it violates the provision of article IY, section 25, subdivision 33, of the same constitution which provides that the “legislature shall not pass local or special laws in any of the following enumerated cases, that is to say— ... 33. In all those cases where a general law can be made applicable.” And, finally, he contends that the law is in violation of the fourteenth amendment of the constitution of the United States.

The argument of petitioner is that the law is, in fact, a special law directed against the sale of liquor within a mile and a half of the Leland Stanford Jr. University; that there is merely a colorable attempt to phrase the law in general language ; that the limitations in the law of the number of enrolled students, of the number of students residing or lodging upon the university grounds and of the location of the principal administrative offices, are, one and all, unreasonable in themselves and designed to make the law applicable only to the one educational institution above named.