Ex Parte Fedderwitz

I concur in the judgment and in the opinion of the chief justice. I concur in all that part of the opinion which deals with the existence of the justice’s court because I think it right; and I concur in all the rest of the opinion because I think that the validity of the ordinance in question, so far as it deals with the sale of wines, etc., has been finally determined by former decisions of this court, from which I dissented: See Ex parte Campbell, 74 Cal. 20 , 5 Am. St. Rep. 418 , 15 Pac. 318 , and Ex parte Christensen, 85 Cal. 208 , 24 Pac. 747 . I desire to notice, however, that the charge against the petitioner was that he had unlawfully, etc., “sold and given away” certain named liquors. The offense charged, therefore, necessarily included a sale. But the ordinance, going further than the notion of business or traffic, provides that it shall be a misdemeanor for “any person” within the limits of the town of Berkeley “to give away” any “vinous, malt, or spirituous liquors.” So that by the terms of this ordinance it would be a public offense punishable by imprisonment for any person in Berkeley, in his own home, and at his own table or fireside, to offer a glass of wine or…

The petitioner was convicted before Robert Edgar, claiming to be justice of the peace of the town of Berkeley, of violating an ordinance of that municipality. On appeal to the superior court the judgment of the justice’s court was affirmed, and in pursuance thereof petitioner is held in custody of the sheriff of Alameda county. He claims that his imprisonment was unlawful: First, because there is no justice’s court of the town of Berkeley; second, because the ordinance defining the offense of which he was convicted is void; and, third, because the complaint upon which he was prosecuted does not charge the offense defined in the ordinance.

It is assumed by counsel for petitioner that the question to be determined in this proceeding under his first point is *564 in all respects the same as the question decided in Miner v. Justice’s Court, 121 Cal. 264 , 53 Pac. 795 , and that it must be decided the same way, unless some legislation subsequent to the decision of that case can be found which leads to a different result. But in this assumption I think counsel are mistaken. The questions are not the same. In the former case the proceeding was by mandamus to compel the issuance of an…

Soon after this case was submitted, I prepared the annexed opinion, and a judgment discharging petitioner from custody. To that opinion I still adhere, notwithstanding the reasoning of the chief justice. I do not agree with the criticisms upon Miner v. Justice's Court of the Town of Berkeley. The counsel who appeared in that case, with one exception, appear also in this, and all points were then made in favor of the existence of the justice’s court which are made here, so far as they then could have been made. The bearing which the new legislation would have upon the matter was, of course, not then considered. The questions discussed in the opinion were the only ones then thought material. The new proposition now made would, at the most, have been only an additional argument against the position then taken by the court. But, in my judgment, there is no force in the argument now made. The joint reso *577 lution of the legislature approving the freeholders’ charter is not evidence of the population of the town of Berkeley of the most solemn and conclusive character, or at all. No authority is cited in support of this proposition, and I venture the assertion that none exists. In…