In Re Simmons

I concur, except in that part of the opinion having to do with petitioner’s claim that the ordinance of the city of Bakersfield is in conflict with the general laws. Concerning that point I prefer to express no opinion.

A complaint was filed in the police court of Bakersfield charging petitioner with the possession of intoxicating liquor containing more than one-third of one per cent of alcohol by volume, contrary to the provisions of section 4 of Ordinance No. 165 of that city. Petitioner pleaded guilty to the charge and was sentenced to pay a fine of $250. The judgment provides that if the fine be not' paid petitioner shall be imprisoned in the county jail of Kem County until it be satisfied, in the proportion of one day’s imprisonment for every dollar of the fine. The fine not having been paid, petitioner was committed to jail pursuant to the terms of the judgment; whereupon he applied to this court for his discharge on habeas corpus. The principal points urged by petitioner are: (1) That the ordi nance is unconstitutional, and (2) that the complaint does not state any offense known to the law.

Section 4 of the Ordinance reads: “It shall be unlawful for any person to have, keep or store any intoxicating liquor in any public place in said city except as provided herein. ’ ’ Section 1 defines intoxicating liquor as including “any distilled, malt, spirituous, vinous, fermented or alcoholic…