In Re Mingo

WILBUR, C. J.

Defendant was convicted of having intoxicating liquor in his possession and sentenced to pay a

[771]

fine of five hundred dollars and to be imprisoned ninety days in jail. The Volstead Act and the Wright Act make the first offense punishable by fine only. An ordinance of Kings County, adopted January 5, 1922, prescribes as the maximum for such offense a fine of five hundred dollars and imprisonment for not more than ninety days. The complaint charged a violation of this ordinance. The question presented is whether the ordinance fixing a greater punishment than is prescribed by the state law for the offense of possessing intoxicating liquor is valid. The question is not a new one in this state. The county ordinance derives its authority from the power delegated to counties by article XI, section 11, of the constitution, which provides that police power is thereby delegated to enact such regulations as are not in conflict with general law. A county ordinance punishing exactly the same act denounced by a state law is in conflict therewith and therefore, to that extent, void.

(In re Sic,

73 Cal. 142 [14 Pac. 405];

Ex parte Stephen,

114 Cal. 278 [46 Pac. 86];

Ex parte Daniels,

183 Cal. 636 [21 A. L. R. 1172, 192 Pac. 442].)

Before the adoption of the Wright Act by referendum at the last general election (November, 1922) such ordinances were valid and enforceable notwithstanding the concurrent power vested in Congress by the federal constitution and the passage by Congress of the Volstead Act.

(In re Polizzotto,

188 Cal. 410 [205 Pac. 676].) But the enactment of the provisions of the Volstead Act by reference in the Wright Act, making it a general law of the state within the meaning of our state constitution (art. XI, sec. 11), thereby deprived the portions of the ordinance fixing a different penalty of all validity, because in conflict with such state statute