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nance and that, therefore, the rule herein before stated does not apply. That section is as follows: "Nothing in this act shall be construed as limiting the power of any city or county, or city and county, to prohibit the manufacture, sale, transportation or possession of intoxicating liquors for beverage purposes; and all fines and forfeitures collected under any ordinance now or hereafter enacted in the exercise of such power shall be paid into the treasury of the city or county, or city and county, whose ordinance is violated." (Stats. 1921, p. 79.)

The authority to enact prohibitory ordinances is derived by the board of supervisors from the constitution (art. XI, sec. 11), and there is no attempt in the delegation of powers to county boards of supervisors in the Political Code to enlarge upon the powers granted by the constitution. These powers will be found in section 4041, subdivision 31, of the Political Code, which reads as follows: "To make and enforce, within the limits of their county, all such local police, sanitary and other regulations as are not in conflict with general laws."

[4] Section 4 of the Wright Act does not purport to grant counties any power which they did not already possess, and we are, therefore, not confronted with the questions which would arise if there was such a specific grant. It is true that this construction of the law results in the conclusion that the punishment of a given offense in a given manner prevents the county from prescribing the same or a greater punishment for the same offense declared in the state law. This situation, however, does not result from the construction of any particular phraseology used in the Wright Act. It inheres in the nature of the situation. The constitutional and statutory power of the board of supervisors is limited to the enactment of such police regulations as are not inconsistent with the general law. [5] When the state law and the county ordinance are in conflict the situation is not changed by the legislative declaration that the act shall be construed as though there was no confiict.

In Ex parte Daniels, supra, we held that the legislature could not create a conflict between a state law and local ordinance by the mere declaration in the statute that the local legislative bodies were prohibited from enacting any rules and regulations of traffic limiting the speed of automobiles,

for the reason that the local bodies derived their authority from the constitution, and the only way the legislature could inhibit such legislation was by themselves occupying the same legislative field so completely that legislation on the subject by local legislative bodies would necessarily be inconsistent with the general rules laid down in the Motor Vehicle Act. It is true that there is a distinction between the situation dealt with in Ex parte Daniels, supra, and the situation now under consideration. There the legislature attempted to prohibit local legislative bodies from exercising their powers derived from the constitution; here the effort on the part of the legislature is to allow legislation to stand which is authorized neither by the constitution nor in any statutory grant of power. If we assume, as is contended, that it was the intention of the legislature in adopting the Wright Act to allow all local ordinances upon the subject to stand unaffected by the new legislation we are met by the fact that an ordinance of the city punishing exactly the same offense as is punishable under the state law and with a greater penalty is void (In re Sic, supra), because under the constitution of the state the municipality cannot enact police regulations inconsistent with general law. [6] This provision of the constitution (art. XI, sec. 11) has been held to be not only a delegation of power by the people of the state to the local body but it has also been held to be a limitation upon the power of the local body and also upon th power of the state legislature. In In re Sic, supra, it was said: "The last clause of this section must be held to be a limitation upon the power of municipalities, whether that power is derived under this provision of the constitution or from the charter. If, as is held both by Bishop and Dillon to be the effect of authorities, a municipality can only pass ordinances punishing the same acts which are punishable under general laws, when expressly authorized to do so, and that no authority to pass such laws will be presumed from grants of power general in their character, it must be because that such ordinances may supersede the general law upon the subject. Here there is not only no such authority, but if such ordinances are conflicting, there cannot be such authority." (Italics ours.)

"It would seem that an ordinance must be conflicting with the general law which may operate to prevent a prosecution

of the offense under the general law. The constitution provides that no one shall be twice put in jeopardy for the same offense. If tried and convicted or acquitted under the ordinance, he could not be again tried for the same offense under the general law. The contrary doctrine has been held in some states, but this conclusion seems more in consonance with reason and justice. Some of these decisions apply to acts which are said to be of a dual nature, and offend at once against the general law and police regulations, which are not directed specifically at the offense denounced in the general law."

The conclusion arrived at in In re Sic, supra, precludes the delegation of any authority by the state legislature to a county board of supervisors to enact police regulations which conflict with state legislation on that subject. There are other decisions in other states to the contrary (note, 1 L. R. A. (N. S.) 382 et seq.), but this interpretation of our constitution has been adhered to in this state.

Petitioner discharged.

Myers, J., Lawlor, J., Lennon, J., Waste, J., Kerrigan, J., and Seawell, J., concurred.

[Crim. No. 2556. In Bank.-April 11, 1923.]

In the Matter of the Application of J. H. KENNERLY for a Writ of Habeas Corpus.

[1] CRIMINAL LAW-FINE-IMPRISONMENT FOR NONPAYMENT SECTIONS 1205 AND 1446, PENAL CODE - CONSTRUCTION OF- INTOXICATING LIQUORS. Under section 1446 of the Penal Code, dealing with proceedings in a justice's court, and which authorizes an imprisonment until the satisfaction of an imposed fine in the proportion of one day's imprisonment for every dollar of the fine, a justice's court may, upon imposing a fine for a first offense of having intoxicating liquor in possession in violation of the Wright Act, direct the imprisonment of the defendant until the fine be satisfied, in the proportion of one day's imprisonment for every dollar of the fine; and section 1205 of the Penal Code, providing that the term of imprisonment for the nonpayment of fine

cannot exceed the term of imprisonment provided by the law for the particular offense in question, relates to proceedings in the superior court.

PROCEEDING on Habeas Corpus to secure release from custody after conviction of possessing intoxicating liquor. Petitioner remanded.

The facts are stated in the opinion of the court.

Gearhart, Carling & Cummings for Petitioner.

WILBUR, C. J.-The petitioner was convicted of having intoxicating liquor in his possession. It was his first offense. The penalty therefor under the Wright Act was a fine of not exceeding five hundred dollars. He was fined five hundred dollars and in addition it was directed that he be imprisoned in the county jail of the county of Fresno until the fine be satisfied, in the proportion of one day's imprisonment for every dollar of the fine.

The petitioner's application is based upon the proposition that inasmuch as the state law provides no term of imprisonment for the first offense of having liquor in possession, section 1205 of the Penal Code expressly prohibits any imposition of imprisonment for nonpayment of a fine "beyond the term for which the defendant might be sentenced to imprisonment for the offense of which he has been convicted." It is therefore contended that the portion of the judgment sentencing the defendant to imprisonment. for nonpayment of fine is void.

The question thus raised is not free from difficulty. There is a great diversity of decision in the various opinions rendered by this court from time to time, due, no doubt, to the hasty consideration of applications for relief from imprisonment and the prompt determination of the cases thus considered.

It is clear that section 1205 of the Penal Code relates to proceedings in the superior court. Beginning with title III of part II of the Penal Code, the code deals primarily with proceedings in the superior court after indictment or upon information; for instance, title III is, "Proceedings in Criminal Actions Prosecuted by Indictment, to the

Commitment, Inclusive." Title IV, "Proceedings After Commitment and Before Indictment." Title V, "The Indictment." Title VI, "Pleadings and Proceedings After Indictment and Before the Commencement of the Trial.” Title VII, "Proceedings After the Commencement of the Trial and Before Judgment." Title VIII, "Judgment and Execution," while Title XI, in which section 1446 of the Penal Code is found, is entitled "Proceedings in Justices' and Police Courts and Appeals to Superior Courts," and chapter I, containing sections 1425 to 1461, inclusive, is headed "Proceedings in Justices' and Police Courts."

The Political Code gives us the rule of construction which will apply in case of conflict between different sections of the code. Political Code, section 4481, provides that "If the provisions of any title conflict with or contravene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject matter of such title." Section 4482 provides: "If the provisions of any chapter conflict with or contravene the provisions of another chapter of the same title, the provisions of each chapter must prevail as to all matters and questions arising out of the subject matter of such chapter." Section 4483 provides: "If the provisions of any article conflict with or contravene the provisions of another article of the same chapter, the provisions of each article must prevail as to all matters and questions arising out of the subject-matter of such article."

Under these provisions of the code established for its own interpretation it would seem clear that if there is a conflict between section 1205 of the Penal Code, relating to proceedings in the superior court, and section 1446, relating to proceedings in the justices' or police courts, that each should prevail in its own proper domain; that the provision in section 1205 that the term of imprisonment for the nonpayment of fine cannot exceed the term of imprisonment provided by the law for the particular offense in question is in conflict with the provisions of section 1446, which authorizes an imprisonment at the rate of one dollar per day for the nonpayment of fine, is well illustrated by the case at bar, in which, under the terms of section 1446, the petitioner may be imprisoned five hundred days, whereas

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