Ex parte Burk

delivered the opinion of the Court:

The return of the writ in this case shows that the petitioner is held under a commitment issued by Robert E. Warren, a justice of the peace of Butte county, on a judgment of conviction rendered on the fifth day of August, 1881, and that the offense, of which the petitioner was convicted, was that of “keeping open a saloon on Sunday for the purpose of transacting business therein.”

The section of the Penal Code under which the prosecution and conviction were had, reads as follows: “ Every person who keeps open on Sunday; any store, workshop, bar, saloon, banking-house, or other place of business for the purpose of transacting business therein, is punishable by fine not less than five, nor more than fifty dollars.” Section 300.

The proceedings, including the complaint, judgment, and commitment, are regular upon their face, and can only be attacked in this proceeding by habeas corpus, on the ground that the act upon which the prosecution was founded, is obnoxious to some constitutional provision.

In the first place, it is claimed on behalf of the petitioner that the act violates Section 25, Article IV of the Constitution, inasmuch as it is a…