Matter of Application of Lieritz

MELVIN, J.

Information was filed against Kate Measor and she was tried and convicted thereunder for selling, furnishing, distributing, and giving away alcholic liquors in the fifth supervisorial district of the county of Orange, which was and is “No license territory.” Her alleged crime was a violation of the Local Option Law commonly known as the “Wyllie Act.” It is admitted that prior to any complaint being lodged against petitioner, there was an election held in the fifth supervisorial district of Orange County, whereby the question of license or no license was submitted to the voters and that a majority of the votes cast not being in favor of license, the board of supervisors declared said fifth supervisorial district would be “no license territory” on and after ninety days from the date of the election. But since there was at the time of said election a valid ordiance, which has not since been formally repealed, prohibiting the sale or distribution of alcoholic liquors in Orange County, petitioner insists that the Wyllie Act did not operate upon the territory in question, and if guilty of anything at all she was a violator of the ordinance and that she was tried under the wrong statute—one which had no force in the territory in question.

It is undoubtedly true that there was and for a long time

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had been an ordinance prohibiting the sale of alcoholic liquors in Orange County when the election above mentioned was held. That ordinance had been declared valid by this court.

(Ex parte Young,

154 Cal. 319, [22 L. R. A. (N. S.) 330, 97 Pac. 822].) The election was held only in the fifth supervisorial district. The question then is this: Which of the laws —the Wyllie Act or the ordinance—is in force in the said district or are-both effectual therein?

Petitioner insists that the holding of an election under the “Wyllie Law” in a district which was already “no license territory” was a vain and idle act. With this contention we cannot agree. The board of supervisors could at pleasure repeal a mere ordinance; but when a supervisorial district is once declared “no license territory” after an election under the “Wyllie Act” that condition may not be disturbed except by a vote of the people of the district. (Stats 1911, p. 602— sec. 11 of the Wyllie Act.) This alone would furnish a reason why the residents of a supervisorial district might demand an election under the “Wyllie Act” in a portion of the county in which licenses were not then issued because of the prohibition of a county ordinance. Other reasons why the holding of such an election would not be an idle act are that under the “Wyllie Law” an offender would be triable in a higher court, under a different procedure and subject to a different penalty than a violator of a mere ordinance would be. It is obvious, therefore, that the existence of a prohibitory ordinance is no bar to the holding of an election to determine whether or not the people of a certain district shall avail themselves of the advantages of the state law. It is equally obvious that the state law, when made applicable in such district is supreme. This matter was considered only a few months ago by this court in the