In re Hang Kie

Morrison, C. J. Petitioner complains that he is unlawfully restrained of his liberty, because the ordinance under which he was arrested and imprisoned is unlawful and void.

On the second day of July, 1885, the board of trustees of the city of Modesto passed an ordinance in the following language:—

“It shall be unlawful for any person to establish, maintain, or carry on the business óf a public laundry or wash-house where articles are washed and cleansed for hire, within the city of Modesto, except within that part of the city which lies west -of the railroad track and south of G- Street.”

A section of the ordinance further declares that any laundry carried on in violation of the foregoing section is a nuisance, and by section third a violation of the ordinance is declared a misdemeanor, punishable by fine and imprisonment, or both.

The defendant was charged with a violation of the [151]ordinance, and is now suffering by imprisonment the penalty thereof, from which he seeks to be relieved on this application under the habeas corpus act.

The only question submitted for our consideration involves the legality of the ordinance in question, or in other words, the power of the board of trustees of the city of Modesto to pass it.

The objections to the ordinance are two:—

1. That it is unreasonable, the rule being, that when a power to pass an ordinance is not given in express terms, but is derived from a general power to legislate, the ordinance must be reasonable. (Ex parte Chin Yan, 60 Cal. 78.)

2. That it violates the state constitution, article 1, sections 11 and 21, inasmuch as it is not uniform.

Both of these objections seem to be answered by Ex parte Moynier, referred to hereafter.

It is claimed, in answer to the prayer of the petitioner for a discharge, that the power exercised by the board of trustees was duly vested in that body, not only under the act approved March 13,1883, but also under the provisions of the state constitution. We will confine ourselves to a consideration of the powers vested in the municipal corporation by the constitution, as that will be sufficient for the present case.