Ex parte Cheney

— The petitioner was convicted in the police court of the city and county of San Francisco of *619 violating section 22 of ordinance No. 1603 of said city and county as amended by ordinance No. 2189, and was sentenced “to pay a fine of $250, and in default of payment of said fine to be imprisoned in the county jail of said city and county at the rate of one day for each one dollar of said fine, until said fine is satisfied.” The fine not being paid, he was, on the eighth day of June, 1891, committed to the custody of the sheriff, by whom, at the issuance of the writ herein, he was detained in the county jail under said commitment. Section 22 of the ordinance named reads as follows: —

It is contended by the petitioner that the judgment under which he was convicted is void, and his detention thereunder unlawful, for the reason that by the terms of the ordinance the court has no discretion to fix the penalty for its violation at a less sum than $250, and the ordinance is, therefore, “ repugnant to and not in harmony with the spirit and letter of. the laws and constitution of the state of California upon kindred subjects, and in con *620 flict with the kindred statutory provisions…