Ex parte Cheney

Harrison, J. — The petitioner was convicted in the police court of the city and county of San Francisco of [619]violating section 22 of ordinance No. 1603 of said city and county as amended by ordinance No. 2189, and was sentenced “to pay a fine of $250, and in default of payment of said fine to be imprisoned in the county jail of said city and county at the rate of one day for each one dollar of said fine, until said fine is satisfied.” The fine not being paid, he was, on the eighth day of June, 1891, committed to the custody of the sheriff, by whom, at the issuance of the writ herein, he was detained in the county jail under said commitment. Section 22 of the ordinance named reads as follows: —

“ Sec. 22. It shall be unlawful for any person, not being a public officer or traveler, or not having a permit from the police commissioners of this city and county, to wear or carry, concealed, in this city or county, any pistol, dirk, or other dangerous or deadly weapon. Every person violating any of the provisions of this order shall be deemed guilty of a misdemeanor, and be punished by a fine of not less than $250 and not exceeding $500, or by imprisonment not less than three months and not exceeding six months, or by both such fine and imprisonment. Such persons, and no others, shall be termed ‘travelers/ within the meaning of this order, as may be actually engaged in making a journey at the time. The police commissioners may grant written permission to any peaceable person, whose profession or occupation may require him to be out at late hours of the night, to carry concealed deadly weapons for his own protection.”

It is contended by the petitioner that the judgment under which he was convicted is void, and his detention thereunder unlawful, for the reason that by the terms of the ordinance the court has no discretion to fix the penalty for its violation at a less sum than $250, and the ordinance is, therefore, “ repugnant to and not in harmony with the spirit and letter of. the laws and constitution of the state of California upon kindred subjects, and in con[620]flict with the kindred statutory provisions thereof”; and also for the reason that under the terms of his sentence he may he confined 250 days, whereas the limit of imprisonment which the court is authorized to impose as a punishment for the violation of the ordinance is six months.