Ex Parte Delaney

By the Court,

Belcher, J.: The petitioner was convicted in the Police Judge’s Court of the City and County of San Francisco of the violation of an ordinance of the city which prohibits the utterance of profane language, words, or epithets in the hearing- of two or more persons, and sentenced to pay a fine of forty dollars, and in default of payment thereof to be imprisoned in the County Jail for the period of twenty days. Having been imprisoned in pursuance of the judgment, he has sued out this writ, and alleges that his imprisonment is unlawful for the reason: First, that the Board of Supervisors was not authorized by the Legislature to pass any ordinance upon the subject; second, that profane swearing was a misde[480]meanor at common law, and it was not competent for the Board of Supervisors, under any authority claimed to have been given it, to reduce or in any manner change the penalty which the statute has declared upon a conviction of a common law misdemeanor.

1. The third subdivision of section one of the Act under which the ordinance was passed (Stats. 1863, p. 540,) is as follows: “Third. To prohibit and suppress, or exclude from certain limits, all houses of ill-fame, prostitution, and gaming; to prohibit, and suppress, or exclude from certain limits, or regulate all occupations, houses, places, pastimes, amusements, exhibitions, and practices which are against good morals, contrary to public order and decency, or dangerous to the public safety.”

The Board having acted under the statute and determined that the uttering of profane language, words, or' epithets in the hearing of two or more persons is a “practice ” which is against good morals, or contrary to public order and decency, we must accept its decision upon the question as final. (Ex Parte Smith and Keating, 38 Cal. 709.)

But it is claimed that the- ordinance is unauthorized because it punishes a single utterance of profane words, while the word “practices,” as used in the statute, necessarily implies an act often repeated by the same person. If this were so an ordinance which should punish the discharge of firearms in a crowded street of the city, or the indecent exposure of one’s person, would be nugatory, unless each individual complained of was found to have frequently repeated the same offense.

It is quite evident, we think, that the Legislature intended to authorize the Board to prohibit all such acts and words as might be deemed hurtful to the good order and well-being of society, whether such acts should be performed or words uttered frequently or only once by the same person.