Ex parte Solomon

I concur. There is nothing in the nature of the offense which calls for any severer penalty for its commission in a thickly settled community, than for its commission in the country. The acts constituting the offense in no way tend to create a breach of the peace, nor do they tend to injure the person or property of another.

The minimum penalty was fixed, doubtless, at $250, to cut off any leniency on the part of the court in which the conviction might be had. But the reasonableness or unreasonableness of an ordinance does not depend upon the difficulty of enforcing its penal provisions. The object of the ordinance is plain, but as it, in effect, provides a greater penalty than that provided by the statute for kindred offenses, it is unreasonable in law, and therefore void.

The petitioner was convicted in the police court of the city and county of San Francisco of “ having lottery tickets in his possession,” which is made an offense by section 70 of order No. 1587 of that city, and is now suffering imprisonment therefor. The ordinance provides that the offense of which petitioner was convicted is punishable “by a fine not less than $250, nor more than $1,000, or by imprisonment by not less than three months nor more than six months, or by both such fine and imprisonment.”

Under the general law of the state found in sections 320 to 326 of the Penal Code, it is made a misdemeanor either to conduct the drawing of a lottery or to sell lottery tickets, or to aid in the drawing of a lottery or the selling of tickets therein, or to open any office or other place for the sale of such tickets, or to let or permit to be used any building for the drawing of any lottery or for the purpose of selling such tickets therein; but the extent to which any of these offenses may be punished *441 is a fine not exceeding $500, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment; and it is therefore possible that upon…