In Re Tosello

The petitioner alleges that he is unlawfully confined by the sheriff of Santa Clara County under color of a commitment of the police court of the city of San Jose after his conviction of a violation of an ordinance of that city, approved November 6, 1917, entitled “An ordinance pertaining to and providing for limiting and regulating the sale of spirituous, malt, vinous or other alcoholic liquors . . . ”; and that the conviction and confinement are void ‘because the ordinance is unconstitutional as contravening the eighteenth amendment to the constitution of the United States, in that it regulates, limits, and permits the sale, of intoxicating liquors under certain conditions.

The first section of the ordinance provides as follows : “On and after January 1, 1918, no person, either as principal, agent, servant or employee, shall open, establish, keep, maintain or carry on within the corporate limits of the city of San Jose, any tippling house, dram shop, cellar, saloon, bar, bar-room, sample-room, buffet or other place where spirituous, vinous, malt or other alcoholic liquors are sold or given away, except as provided in section two (2) hereof. ’ ’ The second section provides that…