Ex Parte Roach

Harrison, J. The petitioner is held by the sheriff of Kings county under a warrant of arrest issued by a justice of the peace of Lucerne township in that county, [274]upon a complaint charging him with having, on the 18th of April, 1894, sold at his saloon in the city of Hanford certain intoxicating liquor, in violation of an ordinance of the board of supervisors of Kings county. The ordinance which the petitioner is' charged with violating is entitled “An ordinance for the purpose of regulation, relating to saloons and other places where intoxicating liquors are sold, given away, or in any manner disposed of,” and makes it unlawful for any person to sell any intoxicating liquor at a saloon between the hours of ten o’clock, p. m., and five o’clock, A. m., of the succeeding day. The city of Hanford is a municipal corporation of the sixth class, organized under the municipal government act of March 13, 1883, and had prior to the 13th of April, 1894, passed an ordinance providing for the [issuance of licenses for the sale of intoxicating liquors. The petitioner had complied with the provisions of this ordinance, and had received from the city of Hanford a license to carry on the business of retailing liquor within that city, which was in force at the time of his arrest. It is contended on the part of the petitioner that he is illegally held, for the reason that the supervisors of Kings county are without any police authority within the city of Hanford; that the ordinance passed by that body under which he was arrested is limited in its operation to those portions of the county not included within the boundaries of any municipality therein.

A municipal corporation can exercise only such powers as have been expressly or by necessary implication conferred upon it by law. These powers are to be found in its charter, or in. some provision of the statute or constitution of the state wherein it is organized. Any ordinance passed by it within the scope of the authority expressly conferred upon it has the same force within the corporate limits as a statute passed by the legislature itself has throughout the state. (1 Dillon on Municipal Corporations, sec. 308; Village of Carthage v. Frederick, 122 N. Y. 268; 19 Am. St. Rep. 490.) Each derives its [275]authority from the same source, and is an exercise of legislative power which has been conferred by the people. In the one case the power is exercised directly by the legislature, and in the other it is the exercise of a delegated power which has been authorized by the constitution, but in both cases the source of the' power is the same. Any inconsistency between the two is to be resolved in favor of the ordinance, upon the principle that of two statutes containing inconsistent provisions that which is later in date is a repeal by implication of the earlier one, and upon the further principle that a statute making particular provision for a designated objeet or district will be deemed to contain the legislative will for that object or district, and will prevail over a general law applicable to the state at large. (State v. Clarke, 54 Mo. 17; 14 Am. Rep. 471; State v. Clarke, 25 N. J. L. 54; St. Johnsbury v. Thompson, 59 Vt. 301; 59 Am. Rep. 731; Daw v. Metropolitan Board of Works, 12 Com. B., N. S., 161; Sutherland on Statutory Construction, see. 140.) The adoption of the ordinance being the exercise of a delegated legislative power, is to be construed with the same effect as if it had been adopted by the legislative power itself. Upon this principle ordinances passed by a municipality whose territory is included within a county will supersede any ordinance of the county upon the same subject. Each being the exercise of a legislative power derived from the same source, is to be construed as though each had been the exercise of that power by the legislature itself.