Opinion
Application for a writ of habeas corpus.
COUNSEL:
The ordinance is in conflict with section 315 of the Penal Code, and a conviction thereunder would be a bar to a prosecution under the Penal Code; hence the ordinance is void. (Ex parte Sic, ante, p. 142.) The ordinance makes the intent with which the house is visited the crime, and not what is done at or in the house; it is therefore in conflict with section 20 of the Penal Code. (Cooley's Constitutional Limitations, 245-247; Milliken v. City Council, 58 Tex. 388; Chy Lung v. Freeman , 92 U.S. 275; Hayden v. Noyes , 5 Conn. 391; Hayes v. City of Appleton , 24 Wis. 542; 1 Dillon on Municipal Corporations, sec. 259.)
J. C. Campbell, and J. H. Budd, for Petitioner.
Frank H. Smith, for Respondent.
The ordinance, so far as it affects the present prosecution, is not in conflict with any general law of the state. (Pen. Code, secs. 266, 267, 309, 315, 316, 318, 647.) The city council had power under the constitution to enact the ordinance. (Const., sec. 11, art. 11; Ex parte Cassinello , 62 Cal. 538; Ex parte Wolters , 65 Cal. 269; Ex parte Moynier , 65 Cal. 33; Ex parte Mount , 66 Cal. 448; Ex parte White , 67 Cal. 102); and similar power under the act under which the city is organized. (Act of March 13, 1883, sec. 622.)
JUDGES: In Bank.
OPINION
THE COURT [15 P. 44] We are of the opinion that the city council of Stockton had authority to enact the ordinance under which petitioner was convicted, and that so far as it affects this prosecution it is not in conflict with the general laws of the state.
The writ is dismissed and the prisoner remanded.