People v. Velarde

188 P. 59, 45 Cal. App. 520, 1920 Cal. App. LEXIS 593

• Court: California Court of Appeal
• Decided: January 21, 1920
• Docket: Crim. No. 689.
• Status: Published

Opinion

FINLAYSON, P. J.

Upon an information, filed in the superior court of Riverside County, defendant was convicted of a violation of section 5 of an ordinance of that county, whereby it is provided that “it shall be unlawful, for any person ... to carry, haul, transport, furnish, deliver or ship into the county of Riverside or through, over or across any portion of said county . . . any intoxicating liquor' . without having placed upon each package and consignment thereof a mark or label showing the true name and quantity of each kind of liquor therein contained, and the names and addresses of the consignor and consignee, . . . and all such packages shall be so marked and labeled before leaving the place of business of the person ... so furnishing, shipping or delivering the same, provided, however, that this section shall have no reference to interstate commerce passing through the county.”

The information charges that defendant “did . . . carry and transport a quantity of intoxicating liquors through, over and across the county of Riverside, without having placed on each package and consignment” the mark or label required by the ordinance. Defendant was found guilty as charged. He was sentenced to the county jail for the period of two months, and, in addition, to pay a fine of five hundred dollars, and, if in default in payment of the fine, to “serve out this sentence in the county jail at the rate of two dollars per day.”

Prohibition of the liquor traffic within the county is the primary purpose of the ordinance. Section 1 thereof declares that the sale, gift, or delivery of alcoholic or intoxicating liquors within the boundaries of the county, outside of municipal corporations, is prohibited. Section 5, the provisions of which defendant is charged with having violated, evidently was intended to facilitate the enforcement of the prohibitory provisions contained in section 1. Defendant attacks the constitutionality of section 5 upon, a number of grounds, none of which, we think, is tenable.

[1] The hoard of supervisors has the power to provide that no package or consignment shall be brought into or transported through the county unless the prescribed label shall have been placed thereon before leaving the place of business of the person furnishing the package of liquor, even though, as here, that place be in another county, namely, the city of Los Angeles. [2] Section 11, article XI, of the constitution reads: “Any county, city, town or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with the general laws.” Thus there is vested in every county police power "by direct grant under the constitution. The power thus conferred is as broad as that vested in the legislature itself, subject to these two exceptions: that it is local to the county or municipality, as the case may be, and is subject to general laws. The board of supervisors of Riverside County was, therefore, vested with the right to exercise within its jurisdiction “the entire police power of the state, subject only to the control of the general laws.” (In re Isch, 174 Cal. 180, [162 Pac. 1026], See, also, Ex parte Campbell, 74 Cal. 20, [5 Am. St. Rep. 418, 15 Pac. 318] ; Odd Fellows’ Cem. Assn. v. San Francisco, 140 Cal. 226, [73 Pac. 987].) [3] That the county, in the exercise of its police power, may. prohibit the selling of intoxicating liquors within its jurisdiction is undoubted. [4] It also is well established that when a county, asserting its recognized authority, undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make that action effective. It does not follow that because a transaction, separately considered, is innocuous, it may not be included in a prohibition the scope of which, in the legislative judgment, is regarded as essential to the accomplishment of the primary purpose of the enactment. [5] With the wisdom of the exercise of the legislative judgment the court has no concern; and, unless it clearly appear that the ordinance has no substantial relation to a proper purpose, it cannot be said that the limit of legislative power has been transcended. To hold otherwise would be to substitute judicial opinion of expediency for the will of the law-making body—a notion foreign to our constitutional system. (Purity Extract etc. Co. v. Lynch, 226 U. S. 192, [57 L. Ed. 84, 33 Sup. Ct. Rep. 44, see, also, Rose’s U. S. Notes].) Clearly, if a mark or label, such as is required by this ordinance, be put upon every package or consignment of intoxicating liquor that is brought into or transported through or across the county, it will greatly facilitate the enforcement of the ban which section 1 of the ordinance places upon the sale of intoxicating liquors within the county. Experience has shown that the ingenuity of man is such that it is almost impossible to draft a prohibition law so broad in its scope that some method cannot be devised for evading it; and, no doubt, it was deemed necessary to prohibit intoxicating liquors from being brought into or transported over or across the county without the prescribed mark or label in order that the real purpose of the ordinance, the prohibition of the liquor traffic within the county, might be attained. It is obvious that if the consignor is required to put the mark or label on the package at his place of business, wherever it may be, it will greatly facilitate the detection, and, therefore, the prevention, of “bootlegging” and similar illicit liquor sales. If a person should be found traversing the county with packages of intoxicants which, on inspection, appeared to be labeled as required by the ordinance, his bona fides could readily be ascertained by instantly telephoning or telegraphing to the consignor’s place of business, even though it were outside the county, and thus the authorities could ascertain whether the liquor really was intended for a bona fide sale and delivery to some person at some place where such, sale and delivery would be legal—that is, legal at the time when this information was laid, which was prior to the operation of the eighteenth amendment and the recent sweeping national prohibition legislation.

[6] There is nothing unreasonable or oppressive about the ordinance or in the penalties provided for a violation of its provisions.

[7] The ordinance is not an attempted exercise of police power beyond the county’s limits. The purpose of that part of the ordinance under which defendant is charged is to prevent the transportation of intoxicating liquor across the county unless it be marked with a certain prescribed label. It operates only upon an act done within the county, namely, the act of carrying or transporting through or across the county any intoxicating liquor that has not been marked or labeled in the prescribed manner. If a person bringing intoxicating liquor into the country does not choose to place the prescribed label upon the packages, the result merely is that he cannot bring the liquor into or transport it across any part of the county. The ordinance, therefore, has no extraterritorial operation, and there has been no attempt to give it any such effect. (State v. Nelson, 66 Minn. 166, [61 Am. St. Rep. 399, 34 L. R. A. 318, 68 N. W. 1066].)

[8] It is not essential to the validity of section 5 that it should expressly exclude incorporated cities and towns from its operation. For the purpose of this decision we shall assume that none of the police power that the constitution has directly granted to the county can be exercised within the limits of any incorporated city or town in the county, irrespective of whether any city or town has or has not exercised its police powers in such a manner that the regulations of the two political entities necessarily must conflict if each be enforced—an assumption, however, that runs counter to what seems to be an intimation in Ex parte Mansfield, 106 Cal. 403, [39 Pac. 775], to the effect that a county ordinance, passed in the exercise of the county’s police powers, is inoperative within the limits of a city or town in the county when, and only when, ’ its enforcement would annul or supersede some regulation of the city or town made in the exercise of its police powers. But, notwithstanding the assumption we have thus made in favor of appellant, a county police regulation is not void merely because the ordinance does not expressly exempt from its operation the territory of all the incorporated cities and towns within the county. If, as appellant’s counsel assume, the county, in the exercise of its police powers, never can extend its jurisdiction over territory embraced within the limits of any incorporated city or town, nevertheless, it is not -necessary to the validity of the ordinance that it shall expressly exempt from its operation that over which it can have no jurisdiction. A failure thus to expressly exempt from the ordinance territory over which, according to appellant’s contention, the county cannot exercise its police powers, is not evincive of an attempt to assert the county’s authority over such territory.

[9] There is no merit in the contention that section 5 is unconstitutional merely because it may operate to prohibit the untrammeled transportation through or across the county of liquor that is the property of the person so transporting it, intended for his own personal use and not for sale or illegal disposition within the bounds of the county. If the liquor be the personal property of a person, intended for a legitimate use by him, the requirement of section 5 does not for that reason deprive him of any constitutional right. It is well settled that, in legislating in behalf of public morals, health or safety, the state, or a county, by reason of its police power, may enact laws or ordinances that incidentally impair property value. Here the impairment of property value, if any there may be, is most certainly not the primary object of the ordinance. If there is any such impairment of property right, it is solely because it is a necessary incident to the main purpose. As a means of preventing the illegal sale of liquor within the county, outside of municipal corporations, the county has the right to prescribe any reasonable regulation as a condition to the exercise of the right to bring liquor into or transport it across any part of the county, even though such liquor be owned by the person bringing it into the county and it be intended for his own personal use. (Crane v. Campbell, 245 U. S. 304, [62 L. Ed. 304, 38 Sup. Ct. Rep. 98]; Barbour v. Georgia, 146 Ga. 667, [2 A. L. R. 1095, 92 S. E. 70]; affirmed, 249 U. S. 454, [63 L. Ed. 704, 39 Sup. Ct. Rep. 316]; Ex parte Zwissig, 42 Nev. 360, [178 Pac. 20]; State v. Brown, 40 S. D. 372, [167 N. W. 400]; Fitch v. State, 102 Neb. 361, [167 N. W. 417].)

[10] Nor is there any merit in the contention that the ordinance is void by reason of an asserted conflict between the penalty provided by the ordinance for a violation of section 9 thereof and the penalty provided by the state law for a violation of the act to prevent the sale of intoxicating liquor to persons addicted to the inordinate use thereof. (Stats. 1915, p. 49.) Assuming, for the purpose of this decision only, that, as contended by appellant, section 9 of the ordinance and the general law enacted by the state legislature to prevent the sale of intoxicating liquors to persons addicted to the inordinate use of such liquors cover the same matter, and assuming also that, for this reason, there is a conflict between the penalty provided by the ordinance and that provided by the general statute for the same offense, and that, for this reason, section 9 of the ordinance is void, nevertheless, such conflict, if any there be, cannot affect the validity of the section under which defendant has been prosecuted—section 5. A county ordinance, like a legislative statute, may be good in part and upheld, while a part may be illegal and void; and if there are several provisions of an ordinance, some of which are void and others valid, and a penalty is provided applying to each offense separately, the ordinance may ’ be enforced as to the offenses respecting which it is valid, just as if the void parts never had been incorporated therein. (Ex parte Christensen, 85 Cal. 208, [24 Pac. 747]; Ex parte Mansfield, supra.)

For these reasons we are satisfied that that part of the ordinance under which defendant was prosecuted is a valid and constitutional by-law of the county of Riverside.

[11] At the trial the district attorney offered in evidence a copy of the ordinance. Defendant made no objection to the offer. Thereupon the ordinance was introduced in evidence. It is now claimed, for the first time, that there is a failure of proof, in that there was no evidence of publication of the ordinance. Doubtless the ordinance was not admissible in evidence until the prosecution had first made preliminary proof of its publication and of any other fact that might be a necessary prerequisite to the existence of an operative ordinance. But, without objection, it was re ceived in evidence as an ordinance that had been duly adopted and had become operative. It is too late now to raise the point that its adoption was not attended by every act necessary to make it operative as an ordinance of the county. The failure to object to its introduction must be construed as an admission that it was competent evidence, and that all essential prerequisites to make it an existing and operative by-law of the county had been complied with. (Flora v. Lee, 5 Ill. App. 629.)

[12] Appellant complains that the court erred in permitting the introduction in evidence of a shotgun that was in his automobile at the time of his arrest. "Witnesses for the prosecution testified about the shotgun, but it was not introduced in evidence. There' is, therefore, no basis for the objection. It likewise is claimed that the court erred in permitting a witness for the prosecution, one of the arresting officers, to testify that, soon after the arrest, defendant offered the witness two hundred dollars if he would let Mm go. Such evidence, like evidence of flight, is admissible as an admission tending to show consciousness of guilt. It is not to be supposed that one who is innocent, and conscious of the fact, will resort to bribery. (State v. Case, 93 N. C. 545, [53 Am. Rep. 471]; Turpin v. Commonwealth, 140 Ky. 294, [140 Am. St. Rep. 378, 30 L. R. A. (N. S.) 794, 130 S. W. 1086]; 16 C. J. 556.)

[13] It was not necessary that the information should specifically allege that the offense was committed outside of an incorporated city or town. It followed the language of the ordinance, and that was sufficient. [14] The evidence showed that the offense was, in fact, committed in the county of Riverside and outside of any incorporated city or town. Defendant, while actually violating section 5 of the ordinance, was arrested at a spot on a well-known highway, about a mile and a half east of Wineville. The court will take judicial notice that that place is not within the limits of any incorporated city "or town.

A careful examination of the record convinces us that defendant had a fair and impartial trial, free from any prejudicial error.

[15] There is, however, one part of the judgment appealed from that is manifestly void. ..That is the portion ordering the retention of defendant in custody until he pay the fine. There is nothing in the ordinance itself that authorizes any such method for enforcing payment. Nor is there any statute giving the court power to impose the alternative .of imprisonment in default of payment of the fine, where, as here, the fine is coupled with a sentence of imprisonment. The penal clause of the ordinance provides that a person convicted of a violation of any of its provisions shall “be fined in the sum of not more than six hundred dollars, or be imprisoned in the county jail of Riverside county for not more than seven months, or be punished by both such fine and imprisonment.” When the county legislative body has said that imprisonment shall not exceed a certain term, it ought not to be held that, after the court has imposed both a fine and a term in jail, it can imprison beyond the maximum period provided by the ordinance. And yet that is precisely what could be done if it were held that, under this ordinance, the court could punish by both fine and imprisonment and likewise enforce payment of the fine by further imprisonment until the fine should be paid. (See the reasoning of Mr. Justice McFarland in Ex parte Wadleigh, 82 Cal. 521, [23 Pac. 190].) Nor can this part of the sentence be upheld under section 1205 of the Penal Code. That section does not apply to cases in which the judgment is for a fine coupled with a sentence of imprisonment. (Ex parte Rosenheim, 83 Cal. 388, [23 Pac. 372]; People v. Brown, 113 Cal. 35, [45 Pac. 181.)

The judgment is modified by striking out that part thereof which provides that, in default of payment of the fine, the defendant “serve out this sentence in county jail at the rate of two dollars per day.” As thus modified, the judgment is 'affirmed.

Sloane, J., and Thomas, J., concurred.