In Re Simmons

WASTE, C. J.

The petitioner contends that he is unlawfully imprisoned and restrained of his liberty by the sheriff of Kern County after conviction on a charge of violating an ordinance of the city of Bakersfield on a complaint charging him with the possession of intoxicating liquor containing more than one-third of one per cent of alcohol by volume.

Following the decision of this court in

In re Mingo,

190 Cal. 769 [214 Pac. 850], the city of Bakersfield passed an emergency ordinance, No. 165 (New Series), prohibiting the “manufacture, sale, storage, serving, gift, transportation, importation or exportation and possession of intoxicating liquors for beverage purposes; regulating all other traffic in such liquors”; providing penalties for violation thereof, and repealing certain other ordinances then existing. By section 1(a) it is provided that, for the purposes of the ordinance, “the words 'intoxicating liquors’ or ‘intoxicating liquor,’ wherever used in [the] ordinance shall be construed to include any distilled, malt, spirituous, vinous, fermented or alcoholic liquor, which contains more than one-third of one per cent, by volume, of alcohol, and all alcoholic liquids and compounds, whether proprietary, patented or not, which are potable or capable of being used as a beverage, and which

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contains more than one-third of one per cent, by volume, of alcohol.”

Petitioner attacks the ordinance as being unconstitutional, in that it is in conflict with the spirit and letter of the Wright Act (Stats. 1921, p. 79), which permits possession of liquor containing one-half of one per cent of alcohol, by volume. He argues, first, that the definition of intoxicating liquor in the Volstead Act, incorporated by reference in the Wright Act, and its application, necessarily make lawful the possession in this state of beverages containing less than one-half of one per cent of such alcohol. That would undoubtedly be so were it not for the fact that the state law is one of regulation of a traffic which may be further regulated by local legislation, provided there is no conflict between the two enactments. That question, in its relation to the Wright Act and a municipal ordinance, has been fully considered and decided in the opinion and decision this day handed down in