Ex Parte Hurl

By the Court. Wallace, C. J.: On habeas corpus. The return to the writ is that the prisoner is detained in the custody of the Captain of Police of the city of Oakland, pursuant to a commitment issued from the Police Court of that city, which is set forth. The commitment recites that the prisoner has been convicted in that Court of the crime of violating an ordinance of the city of Oakland, entitled “ an Ordinance establishing and regulating municipal licenses by unlawfully and maliciously engaging in and [558]transacting the business of selling and disposing of distilled and fermented liquors in quantities less than one quart, without having first obtained a license;” that upon such conviction he was fined the sum of twenty dollars. In default of the payment of which fine the Captain of Police is directed to take the prisoner into custody and detain him until he pay the said fine, etc.

The tenth section of the ordinance of the city of Oakland, establishing and regulating municipal licenses, is as follows: “ 10th. For all saloon-keepers, inn-keepers, and all persons who may sell and dispose of any spirituous, malt and fermented liquors or wines, in less quantities than one quart, whose gross sales or receipts are more than $10,000 per quarter, $100 per quarter, and for all those whose sales or gross receipts are less than $10,000 per quarter, $50 per quarter.”

It is alleged in the petition upon which the writ was issued, “that the said ordinance is contrary to the Constitution and laws of the State of California, in violation of the charter of the said city of Oakland, and illegal and void.”

At the argument I was not pointed to any provision of the Constitution, nor to any statute law of the State which the ordinance in question was supposed to contravene. It was insisted, however, that the ordinance was, in fact, a virtual prohibition of the sale of distilled liquors in quantities less than one quart. I am not satisfied of that. It certainly cannot be assumed that the exaction of $50 for the privilege of retailing spirituous liquors in the city of Oakland, for the period of ninety days, will, per se, put an end to that business.

It is next argued that the tenth section of the ordinance is, in itself, unreasonable and oppressive. This is sought to be shown by reference to other parts of the same ordinance, by which it appears that the license-tax imposed upon the business of retailing distilled liquors is greater than that imposed upon any other. This is to argue that, because the common council, in fixing the rates for licenses, have discriminated between the several business pursuits