In re Sic

Temple, J. A complaint was filed in the Police. Court of the city of Stockton, charging Sam Lee and petitioner Sic with the crime of assembling for the purpose of smoking, as follows, to wit, the said Sam Lee and Sic (at a time and place specified) were willfully and unlawfully in that certain room, in that certain building on the southeast corner of El Dorado and Washington streets, in said city, for the purpose of smoking opium, contrary to the provisions of a certain ordinance, etc.

The ordinance was entitled “ Ordinance No. 192. To prohibit and prevent the smoking of opium, and the inhaling of fumes of opium.”

[144]The first section declared the smoking of opium or the inhaling of the fumes of opium injurious to public health, contrary to public morals, and against the peace and good order of the city, and prohibits the keeping of places where persons assemble for the purpose of smoking or inhaling the fumes of opium. Section 2 makes it unlawful for persons keeping certain places of resort to allow persons to smoke or inhale the fumes of opium therein.

Section 3 is the one under which this complaint is lodged, and is as follows:—

“ Sec. 3. It shall be unlawful for two or more persons to assemble, be, or remain in any room or place for the purpose of smoking opium or inhaling the fumes thereof.”

Section 4 makes it unlawful for any one to knowingly remain in the room or place where the offense is committed.

Section 5 is aimed at the person owning or controlling any building who permits the offense therein.

Section 6 punishes those who aid or abet the offense.

Section 7 punishes one who may stand before, upon, or in the vicinity of the building, room, or place where the offense is committed to give warning of the approach of any person.

It is claimed that this ordinance is void because it conflicts with section 307 of the Penal Code, which is as follows:—

“ Every person who opens or maintains, to be resorted to by other persons, any place where opium, or any of its preparations, is sold or given away, to be smoked at such place, and any person who at such place sells or gives away any opium, or its said preparations, to be there smoked or otherwise used, and every person who visits or resorts td any such place for the purpose of smoking opium, or its said preparations, is guilty of a misdemeanor, and upon conviction thereof shall be punished