In re Clisham

The prisoner asks to be discharged upon habeas corpus, and his petition shows facts entitling him to such discharge. An ordinance of the city of San Luis Obispo provides as follows:

The petitioner was prosecuted and convicted for a violation of the foregoing ordinance, and is now held a prisoner by virtue of a commitment based upon such conviction.

The complaint does not state a cause of action. It is fatally defective in not bringing the acts of petitioner within the prohibitions found in the ordinance. A license is required for keeping or conducting a barroom, saloon, or other place where vinous, spirituous, or malt liquors are sold .... to be drank upon the premises. The complaint charges the prisoner with carrying on “ the business of selling liquor.” Upon the slightest inspection of the ordinance it will be perceived that it does not forbid “ the business of selling liquor.” No reference is made in the complaint to that part of the ordinance referring to “ a saloon, or barroom, or other place”; and, conceding the term “ liquor” to be broad enough to include “ vinous, spirituous, or malt liquors,” still the complaint contains no allegation that the liquors were to be drank…