Ex parte Christensen (1890) · DecisionDepot

Ex parte Christensen

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Aug 2, 1890 No. No. 20563Published

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Holding. The court held that the municipal ordinance requiring a liquor license is valid, as the provisions regarding license fees are separable from any invalid penalty provisions, and the governing power may impose conditions on the liquor trade.

Issues

Whether the municipal ordinance was properly passed and published under the consolidation act.
Whether the ordinance's penalty provisions conflict with state law and render the ordinance void.
Whether the ordinance's licensing requirements violate the federal constitution by granting arbitrary discretion to officials and property owners.
Whether the petitioner was entitled to notice regarding the expiration of his license.

Disposition. remanded

Quotations verified verbatim against the opinion

“It is well settled that the governing power may prohibit the manufacture and traffic in liquor altogether, provided only that it does not interfere with interstate commerce.”

“And if the governing power can prohibit a thing altogether, it can impose such conditions upon its existence as it pleases.”

Synopsis

Application for a writ of habeas corpus. The facts are stated in the opinion of the court.

The Court. The petitioner was arrested upon a charge of misdemeanor, consisting in the carrying on of the business of a retail liquor dealer in the city of San Francisco, without a license.

[210]He contends that the ordinance prescribing the license is void, for various reasons: —

1. The original order numbered 1589 was passed in 1880. In 1866 subdivision 39 of section 10 of this order (which relates to liquor licenses) was amended by order 1845, and it is contended that this amendatory order was not properly passed and published in accordance,, with the provisions of the county government act.

But we do not think that the provisions of the county government act apply to the passage and publication of ordinances of the city and county of San Francisco.

It is argued, however, that even under the provisions of the consolidation act the order was not properly passed. The main point seems to be that the amendatory order only, and not the original order, was published. But there is no merit in this position. Section 68 of the consolidation act provides that "every ordinance or resolution, etc., shall, after its introduction in the board, be published,” etc. This only requires the ordinance or resolution itself to be published. It does not require the republication of the ordinance or resolution which is amended or affected. Order No. 1845 was a separate order, and was complete in itself, and, in our judgment, it was sufficient to publish it only without republishing the original ordinance. In other respects it was properly passed.

2. It is urged that the order is in conflict with the general laws of the state.

The order provides for the payment of a specified license fee, and declares that violation of the order shall be a misdemeanor, and shall be punishable by a fine of not more than one thousand dollars, or imprisonment not more than six months, or both. The latest general law on the subject is section 435 of the Penal Code, which is as follows:—

"Every person who commences or carries on any [211]

Ex parte Christensen

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