The record-union., 1891-02-28
filled Fehrua,.v 1s 1901 !

order appealed from III this case are re-
verSed, and the cause is renanded for
new trial.
[Filed February IS, 1891.
Habeas Corpus. Police Court, San Fran
cisco.
For petitioner, Luis E. Phillips.
For respondent, William S. Barnes, Dis
trIct Attorney.
IN BANK.
In THE MATTER OF THE
APPLICATION OF All
You ON HABEAS COR No. 20,160.
PUS, FOR DISCHARGE
FROM IMPRISONMENT.
The petitioner was convicted in the
Police Court OF the City and County of
San Francisco, Of d misdemeanor, for Wis
ting house of i'll fame, and on the 7th
day Of March, 1890, was sentenced to ''pay
a fine of four hundred dollars, and in de-
fault Of payment thereof, that he be inn
prisoned in the County Jail OF said city
and county at the rate OF one day for each
one dollar of fine until said fine is salts
fed" Under commitment issued
upon this Judgment he was Immediately
taken into the custody OF the Sheriff, and
has since that day been confined in the
County Jail OF San Francisco.
Section 33, Order No. 1857, as amended
by Order No. 1855, of the Board of
Supervisors of the City and County of
San Francisco, under which his convic-
ton was had, is as follows:
ut shall be unlawful for any person in
the city and county OF San Francisco to
keep or maintain, or become an inmate
of, or visitor to, or in any manner to
contribute to the support OF any diSor-
DERBY house, or house of ill-tame, or
place for the practice" of gambling, or
knowingly let or underiet, or transfer the
possession OF any premises for use by
| any person for any OF said purposes.
Every person who shall Violate any
of the provisions of this section shall be
deemed guilty OF g miSdemeanor, and
punished by a fine of not less than so, or
imprisonment not less than ten days.
The maximum amount of the punish
ment for this offense is not defined, but is
left to the discretion of the court, except
as it is qualified by the provisions OF Sec
ton l, OF Order 1887, which reads as fol-
lows:
ANY person violating any of the pro-
visions of this order shall be deemed
guilty ola misdemeanor, and be punished
by fine not exceeding 81 200, or impris-
onment not exceeding six months, or by
both such fine and imprisonment
Constituting these two sections together
as defining the extent of the punishment
by fine for the offense, it results that the
ordinance provides that the penalty for
visiting house of iil-fame shall be not
less than $40, nor more than $1,000.
Municipal ordinances must be reason
able, and the penalties prescribed for
their violation must also be reasonable as
well as definite. 1t is not essential, how
ever, that the precise amount of the pen
atty for each offense shall be designated
in the ordinance. 1t is sufficient If it be
left to the discretion of the court, within
fixed, reasonable limits. The maximum
limit must, however,, be reasonable.
Dillon on Nun. Corp, Secs. 33S, 341. The
Legislature Stats. of 1861, D. 552l, has
given to the city and county Of San Fran
cisco power Ito determine the fines, for
FIXTURES and penalties that shall be in
CURED for the breach of regulations es-
tablished by it's Board of Supervisors
with the maximum limit of one thousand
dollars, or six months imprisonment
or both. But it does not follow that the
city is authorized to affiX this maximum
penalty for the violation of every regula-
ton that it may establish under its gem
eral power to define offenses and pre-
scribe penalties therefor. 1t is not iusti-
fed in prescribing the same penalty for
each offense which it may define. Penal
ties should be prescribed with reference
to the offenses which are committed,
rather than to the power under which
they may be prescribed. This power to
determine" the penalties which shall be
incurred for the breach of its regulations
has been conferred upon the city, and
must be exercised by its Board of Super
visors, and not left to the discretion of the
Judge before whom the offense is tried.
Matter of Frazee, 63 Mich. 1857 The
Board of Supervisors must itself fix,
within limits which are reasonable, the
penalty to be incurred for the violation of
each offense. If, however, the Board of Su-
pervisors does not determine the penalty
in any other terms than that it shall not be
than hIJr lp1UpS fn ha I16s t,o
power to affiX the maximum amount of
punishment which the Legislature has
authorized to be affixed for the violation
of any offense, instead of fixing the PEN
atty within reasonable limits, it gives to
the Judge the discretion of determining
what the penalty shall be for each offense
This has the same effect as If it had itself
fixed the maximum limit of the penalty
at $1,000. But municipal ordinance
which should prescribe a fine of 81 900, or
even 500, as the penalty for visiting
house of ill-fame, would be not only un-
reasonable, as imposing punishment
greatly disproportionate to the offense,
but would also be inconsistent with the
general principles of the Penal Code upon
kindred topics.
In the exercise of the power conferred
upon it to regulate all practices which
are contrary to public order and decency,'
by virtue of which this ordinance was
adopted Stats. of 1863, p. 540l, it was in
cumbent upon the city to frame the ordi-
nance, so far as practicable, in harmony
with the general laws OF the State. (Er-
pa1'te Kearney, 30 Cal. 225; Dillon on
Nun. Corp. Sec. 3I9.) The act of which the
petitioner was convicted is not enumer-
ated among the crimes which are defined
in the Penal Code, but is made an offense
solely by virtue of the ordinance. The
Legislature has not deemed it necessary
to prescribe any punishment therefor,
and from the statutes which it has adopted
upon kindred topics the penalty allowed
by the ordinance in question, must be
held to be not in harmony with its gen.