Ex Parte Bagshaw

ANGELLOTTI, J.

Petitioner seeks to be discharged from the custody of the sheriff of the county of Marin, by whom he is held under a commitment issued by the justice’s court of Sausalito township of said county, based upon a judgment given in said court upon a conviction therein of the crime of carrying on the business of selling liquor in the town of Mill Valley, a municipal corporation of the sixth class in said county, without taking out or procuring the license prescribed therefor by an ordinance of said town.

The principal contention of petitioner is that said justice’s court was without jurisdiction to entertain or try said case. The Municipal Corporation Act provides that in municipal corporations of the sixth class there shall be a recorder’s court, which shall have concurrent jurisdiction with the justice’s court of all actions and proceedings, civil and criminal, arising within the corporate limits of the city or town, and "exclusive jurisdiction of all actions for the recovery of any fine, penalty, or forfeiture prescribed for the breach of any ordinance of such city or town, of all actions founded upon any obligation created by an ordinance,

and of all prosecutions for any violation of any ordinance.”

(Stats. 1905, sec. 882, p. 73.) The italics are ours. The claim is that this provision confers exclusive jurisdiction upon the recorder’s court of a prosecution for the carrying on of a business within the limits of a

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town, without taking out the license prescribed therefor by an ordinance of the town. Section 435 of the Penal Code, however, provides: “Every person who commences or carries on any business, trade, profession, or calling, for the transaction or carrying on of which a license is required by any law of this state, without taking out or procuring the license prescribed by such law, is guilty of a misdemeanor.” It has been expressly held by this court that a county or city and county ordinance is a “law of this state” within the meaning of this section.

(In

re

Lawrence,

69 Cal. 608, 611, [11 Pac. 217];