The record-union., 1891-07-18
MIDNIGHT SALOON CLOSING,
Judge Cravens Holds the Ordinance to
Be Valid.
He Overrules the Demurrer OF j. n.
Payne, and Gives His Reasons
For So Doing.

jerry N. Payne came up in the Police
Court, he being charged with having vio-
lated the new ordinance providing that
all saloons must close at midnight. Sim
liar complaints had been filed in the cases
of other saloon proprietors, but that of
Payne was intended to be test case.
The defendant filed demurrer to the
complaint against him, which was argued
at the time and the matter submitted to
Police Judge Cravens, who took it under
advisement. Yesterday he rendered his
decision thereon, overruling the demur
rer. In doing SO Judge Cravens gave his
reasons as follows:
The defendant in this case is charged
with violating an ordinance of the city of
Sacramento, numbered Ordinance Z76
and entitled "An Ordinance Regulating
Saloons, Bar-rooms, ETC., and providing
the Amounts City Licenses to be paid by
Keepers Of Saloons, Bar-rooms and other
places where Wines and Liquors are
Sold"
Section 10 of the. ordinance provides:
Ii shall be unlawful for any person
to keep open any bar-room, sa-
loon or place, in the city Of Sacramento,
where wines, or spirituous or malt liquors
are sold by the glass or bottle, to be used
as beverage, between the hours of II
O'Clock (midnight) and 5 o'clock in the
morning, or to sell at such bar-roOm,
saloon or place. any wines or spirituous
or malt liquors between the hours named.
And all entrances to any such bar-room
OF saloon shall be kept closed and all
lights thereof shall be extinguished be-
tween the hours named; pr0Uided, how
ever, that any hotel, restaurant. or eating
house, which serves meals between the
hours named, may obtain special license
TO keep open between the hours named,
the bar or bar-rOOm, constituting q part
OF the hotel, restaurant or eating-house,
ana 10 dispense wines and SplrituouS and
malt liquors between the hours named,
upon payment for such special license, in
addition to any other State, county or city
license required, the sum of $lO in ad
vance for each and every quarter"
The complaint charges as follows:
1.-The People of the State of California,
upon oath of j. A. Gibson, complain
against the said defendant, Jerry Payne,
for the crime of violating Ordinance No
Z76 OF said city of Sacramento, committed
as follows: That on the = day of July
1891, and within the limits of the city Of
Sacramento, in the county of Sacramento,
In the State Of California, the said de-
fendant did, then and there, before the
fil1ng of this complaint, and within one
year prior thereto, willfully and un-
lawfully keep open between the hours of
II o'clock, midnight, and 5 O'Clock in the
morning. for the purpose of selling wines,
spirituous and malt liquors between the
hours named, certain saloon, which
SAID saloon was then and there q place
where wines, spirituous and malt liquors
We're sold by the glass and bottle to be
used as beverage, in Violation of lawful
ordinances of the Board Of Trustees of the
said city of Sacramento, passed by the
said board OF Trustees on the I'D day of
June, 1891, entitled Ordinance No. 276.
n ia fOrT nd
of the statute in such case made and pro-
Vlded, and against the peace and dignity
OF the people of the State of California"
The defendant excepts to the suffi-
cheney of the complaint. First, that it
does not state facts sufficient to consti-
tute public otfense; second, that it does
not state the substance of an ordinance
describing public offense.
l am unable to discover any force in
these objections. Section 1426,of the Penal
Code provides THAT all proceedings and
actions in Justices and Police Courts for
public Offense, of which such courts
have jurisdiction, must be commenced
by complaint under oath, setting forth
the otfense charged, with such particu-
larlty of time, place, person and prop
erty as to enable the defendant to under
stand the character of the offense COM
planned OF, and to answer the complaint
The complaint in this case meets the
requirements of the statute by charging
the defendant with acts which, if true,
constitute the offense declared against in
the ordinance.
y complaint charging violation of a
municipal ordinance is sufficiently GER
tain II II refers TO the ordinance, and de-
scribes the otfense prohibited without
pleading the ordinance in full. Ex parte
Lane 76 Cal, 5S7; ex parte Christensen,
So Cal, POS.
TO the objection that it does not appear
that the ordinance has ever been passed
and published under any order of the
Board of Trustees of the city of Sacra-
mento, or that 1t has ever become by
law of said city, it must be answered
that the complaint does allege the passage
of tho ordinance, giving its number and
the date of its passage. This is sufficient TO
ldentliy IL and enable the defendant to
single it out from all other ordinances.
The complaint alleges all that is required
TO satisfy the rules of good pleading.
1T Is urged that the ordinance is in con-
flct with Section a, Article ". of the
Constitution of this State, which requires
that Every Act shall embrace but one
subject, which subject shall be expressed
in its title. But il any subject shall be
embraced in the Act which shall not be
expressed in its title, such Act shall be
void only as to SO much thereof as shall
not be expressed in its title"
think that this clause Of the Constitu-
the State Legislature. But even if il is
held TO apply to governing bodies of mu-
nlclpal corporations, the ordinance in
question is not obnoxious to its provi-
sions. 1t is plain that the object of the
ordinance Is TO regulate saloons, bar
rooms, etc, and TO prescribe the condi-
tions upon which they Will be allowed to
exist within the municipality. A power
which is expressly delegated by the
charter. IGfrd.
1t is further urged that Section 10 of the
ordinance is unconstitutional because it
provides that bars connected with hotels,
restaurants and eatlng-houseS may be
kept open during the inhibited hours by
paying special license therefor. 1t is a
well settled principle of statutory con-
lructIon that an unconstitutional provi-
sion of an Act does not affect the validity
OF another provision III the same Act, or
even IN the same section of an Act which
is not obnoxious to the objection, unless
the Two provisions are inseparable or are
SO united that the presumption arises
That the Legislature would not have
adopted the one without the other. Elk
parte Frazer, 81 Cal, 81; ex parte +. d.
Johnson, 81 Cal, 263.
Inc provision against which the OBJ
lecuon Is urged is in proviSo which is
as distlnct from the enacting clause of
me section as If it were in a separate sec
non or even in separate ordinance.
Ana even II II IS admitted that this pro-
vlso is unconstitutional it does not neces-
sariIy follow that the whole ordinance
must fail, If 1t can be made operative of
the legislative win without the proyiso.
1t is plain that the purpose of the ordi-
nance Is the regulation of saloons. etc
and TO prohlblt them from being kept
open at such hours of the night as might
tend To disturb the peace, quiet and rood
order of the neighborhood or encouraoe
immortality. If the proviso is repugnant