Ex parte Stephen

Van Fleet, J. Petitioner, convicted in the superior court of the county of Orange, of a misdemeanor in carrying on a saloon and selling liquor without procuring a license therefor, as required by ordinance No. 35 of the board of supervisors of said county, asks to be discharged on habeas corpus, on the ground principally that the ordinance is void for various alleged reasons.

Several of the grounds of invalidity assigned may be passed over without further notice than to say that they relate to special features of the ordinance not here involved, and upon the sufficiency of which the validity of the particular provision under which petitioner was prosecuted and convicted in no way depends. One or more features of an ordinance may be void, and yet those parts not subject to the vice, and which are not dependent upon the provisions which are, will stand unaffected. (Ex parte Mansfield, 106 Cal. 405; Ex parte Haskell, 112 Cal. 412.)

We shall, therefore, confine ourselves to a consideration of those objections only, which affect either the ordinance as a whole or section 1 thereof—for a violation of which petitioner is held — and certain objections made to the sufficiency of the judgment.

1. The first and main objection urged is that the ordinance was not passed at a regular meeting of the board of supervisors, as required by law, and is, therefore, wholly void. This claim is based upon the alleged fact that the board has never established by ordinance a time for its regular meetings; and it is argued that, no such time having been fixed, there could be in legal contemplation no such thing as a regular meeting of the, board.

But, assuming that such omission on the part of the board, if shown, would render void the ordinance here involved, the inquiry is one which.does not competently arise. The question whether ordinance No. 35 was regularly passed is dependent upon certain facts as to the existence of which it was within the province of the superior court, at the trial of petitioner, to in[280]quire. One of those facts was whether the ordinance was passed at a regular meeting, and this fact involved' the further one as to whether the time for such meeting had been competently established. The jurisdiction of the court to punish petitioner for the alleged infraction of the ordinance depended upon the existence of these facts, and, this being so, the judgment of conviction must be taken, upon this collateral view, as conclusively establishing such facts. We are bound to presume in support of that judgment that the fact about which question is really made—whether the ordinance No. 1, found in the records of the board of supervisors, fixing the time of regular meetings, was published so as to take effect — was established to the satisfaction of the court by competent evidence. Unlike a court of limited jurisdiction, every intendment is to be indulged in favor of the regularity of the proceedings and judgment of the superior court, acting within its jurisdiction, and this whether the jurisdiction exercised be original, or, as in this instance, appellate. “After its appellate jurisdiction has once been acquired, its action within the limits of that jurisdiction, unless in direct contravention of some positive statute, is entitled to all the presumptions of regularity that attach to the exercise of its original jurisdiction.” (Sherer v. Superior Court, 94 Cal. 354.)