The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1899-12-12

he permitted his house to be used for
that purpose would be clearly and abb
solutely irrelevant. immaterial and in
competent, unless it could be shown
that such testimony would tend to
prove the specific crime with which he
was charged And, If he were convicted
of violating Section of the ordi-
nance, and it were true that he also
permitted his house to be used for the
purpose of conducting such business
therein, in prosecution for, the latter
offense, a plea. of once in jeopardy, be-
cause of having been convicted OF the
act denounced as an offense In the first
section Of the ordinance, would avail
him nothing This appears to me to dis
pose Of the contention OF counsel for
the people as to whether or not two dis
tinct subjects are embraced in the or
/ dinance.
AS to their other point in this con-
! nection, that, where the two subject
matters are not so interviewer with
each other as to render them incapable
of separation, the court can hold the
one valid and the other invalid, l will
say that such a construction has been
sustained in many cases by the Su-
preme Court of this and other States.
people VS. Parks, So Cal, 624, and
cases cited.) The difficulty, however, in
the solution of this question is to de-
ternine which of the two subject mat
tiers should be declared invalid. The
defendant in this case, through MS
counsel, very emphatlca1ly expresses
the desire that, if either of the subjects
is to be declared invalid, the one under
which this prosecution has been in
stituted should be the one to be thus
considered by the court. AS this is not
the point upon which shall proceed
in the ultimate determination of the
question of the validity or invalidity OF
the ordinance, I will not undertake to
say which of the two subject matters
should be disregarded and held inef-
fective. I will only say, in connection
with this point, that, in the drafting OF
ordinances care should be exercised not
to embrace within their provisions two
equally important but distinct and DIFF
ferent subjects.
The second point made by the de-
PENDANT, that the ordinance attempts
to legislate upon subject in a manner
inhibited by the charter, is true; and,
if the Board Of Trustees were limited in
their power upon this subject by the
charter provision which does not au-
thorize a regulation Of gambling and
gaming, but a prohibition and sup
preston thereof. the ordinance would
be void upon that ground. But am
of the opinion that, under Section IL OF
Article XI. of the Constitution, as ex-
planned by the Supreme Court Of this
State Foster VS.. Police Commissioners,
! 1O2 Cal, 4S3; Elk parte Lacy, 1OS Cal,
$3.50, the governing body of a city or
town is not to be confined in the exer-
else of the police power by any at
tempted grant or limitation Of powers
found in the charter Of such city or
town.
| Counsel for the defendant very in
geniously argues, referring to the cases
above mentioned, that, while it IS true
that those cases hold that Section IL
of Article XI. of the Constitution is self
executing, and therefore requires no
| legislation to authorize cities or towns
to invoke it's provisions, yet, when the
Legislature through the ratification Of
a charter adopted by the people invests
the governing body of a city or town
with certain express powers which are
not coextensive with or as full as those
granted by the provisions of the Con-
stitution just quoted, such governing
body is powerless to go outside Of such
granted and limited powers, and any
act of such body in excess Of the pow
ers thus expressly given is virtually
ultra wires. It is admitted that the
power conferred by the Constitution, If
not fully expressed in the charter, re-
sides somewhere: that it is in the peo-
pie. But it is claimed that it remains
dormant and not exercisable by the
governing body, which is hedged about
and limited by the provisions of the
charter under which and by which it
must act.
I cannot consent to the correctness of
this position, for, if it were maintain
able, it would; in my opinion, as is sug
gested by the counsel for the people,
operate as a repeal of provision OF
the highest law in the land. If no
attempt was made by the charter to
enumerate the powers of the Board of
Trustees of this city it would not be
contended, in the light of the decisions
of the highest court of the State upon
the subject under consideration, that
that body would not have the right to
make and enforce within its limits all
such local, police, sanitary and other
regulations as are not in conflict with
general laws If this be true, then
by what method Of reasoning could the
conclusion be reached that, because the
charter has made a futile effort land l
assume that the charter makers de-
signed to invest that body with all the
power that Is authorized to be exer-
cised by the Constitution to grant such
powers as would enable the city to be
we'll governed in all the respects con-
templated by the provision of the Con-
stitution in question the said provision
of the Constitution could not be fully
invoked and the power therein granted
fully exercised, Notwithstanding the
language of the chatter apparently linn
iting it's power?
In Elk parte Lacy, los Cal, 326 supra,
after quoting the section of the Consti-
tuition referred to, the court says: 1T
will be thus observed that Los An
geles City is vested with certain pow
ers by direct grant from the Consti-
tuition" And in the case of Foster
VS.. Police Commissioners 1O2 CAL, 4S3.
supra, speaking again of this section,
the court says: And this authority ex-
pressly given obviates all necessity of
any authority being given upon the
same subject in the charter"
It would be absurd, in my opinion,
to hold, because the charter, through
either the advertence or inadvertenca of
10 oft cd 10 o1,x{1