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[Cite as Ex Parte Cheney, 90 Cal. 617, 27 P.
[No. 20,854. In bank.--September 1, 1891.]
Ex parte O. F. CHENEY, on Habeas Corpus.
Criminal Law--Carrying Concealed
Weapons--Validity of Municipal Ordinance.--Section 22 of
ordinance No. 1603 of the city and county of San Francisco, prohibiting
the carrying of concealed weapons by any person other than public officers and
travelers, without a permit from the police commissioners, and prescribing as a
penalty for the violation of any of its provisions a fine of not less than $250
and not exceeding $500, or imprisonment not less than three months and not
exceeding six months, or both such fine and imprisonment, does not impose any
excessive or unreasonable penalty, but is constitutional and valid.
Id.--Police Regulations for
Prevention of Crime--Discretionary Power of Municipality--Exclusive
Determination of Penalty.--The legislative body of a city is vested with
a discretion in reference to police regulations, which are intended for the
prevention of crime and the preservation of the public peace, which is not
reviewable by the courts; and in the exercise of this power the municipality, in
determining the (p.618)penalty to be imposed
for violating its ordinances, is limited only by the terms of its charter; and
the reasonableness of a punishment prescribed within that limit cannot be
Application to the Supreme
Court for a discharge upon a writ of habeas corpus. The facts are stated
in the opinion of the court.
Z. T. Cason, for Petitioner.
The punishment is excessive, because the prisoner
might be imprisoned longer than the maximum term of six months. (Ex parte Ah You, 88 Cal. 99; Ex parte
Kelly, 65 Cal. 154; Ex parte Baldwin, 60 Cal.
432.) The minimum penalty prescribed by the statute is excessive in
certain cases. (Bailey v. Commonwealth, 11 Bush,
688; Ex parte Ah You, 88 Cal. 99.) The
general laws allow a minimum penalty of one cent or one dollar fine, or one
day's imprisonment, for misdemeanors. (Pen. Code, secs. 245, 417,
467.) The ordinance is in conflict with the constitution. (Art. 11, sec. 11; art. 1, sec. 6.)
Davis Louderback, contra.
The test of unreasonableness cannot be applied to
an ordinance when the power to enact it has been expressly conferred, as it has
in regard to penalties in this case. The city may impose any penalty within the
limits authorized. (Haynes v. Cape May, 50 N. J. L. 57,
58; District v. Waggeman, 4 Mackey, 335, 336;
Ex parte Chin Yan, 60 Cal. 82, 83; Coal-float v. City of Jeffersonville, 112 Ind. 19, 20;
Horr and Bemis on Municipal Ordinances, sec. 128; Waldraven v. Mayor etc. of Memphis, 4 Cold. 434; Mason v. City of Shawneetown, 77 Ill. 537; City of St. Louis v. Boffinger, 19 Mo. 15, 16; Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 509; 24 Am.
Rep. 756; Presb. Church v. City of New York, 5 Cow.
540, 541; Ex parte Miller, 89 Cal. 41.)
petitioner was convicted in the police court of the city and county of San
Francisco of (p.619) violating section 22 of ordinance No. 1603 of said city and county as
amended by ordinance No. 2189, and was sentenced "to pay a
fine of $250, and in default of payment of said fine to be imprisoned in the
county jail of said city and county at the rate of one day for each one dollar
of said fine, until said fine is satisfied." The fine not being paid, he was on
the 8th day of June, 1891, committed to the custody of the sheriff, by whom, at
the issuance of the writ herein, he was detained in the county jail under said
commitment. Section 22 of the ordinance named reads as
"Sec. 22. It shall be unlawful for any person, not being a public
officer or traveler, or not having a permit from the police commissioners of
this city and county, to wear or carry, concealed, in this city and county,
any pistol, dirk, or other dangerous or deadly weapon. Every person violating
any of the provisions of this order shall be deemed guilty of a misdemeanor,
and be punished by a fine of not less than $250 and not exceeding $500, or by
imprisonment not less than three months and not exceeding six months, or by
both such fine and imprisonment. Such persons, and no others, shall be termed
'travelers,' within the meaning of this order, as may be actually engaged in
making a journey at the time. The police commissioners may grant written
permission to any peaceable person, whose profession or occupation may require
him to be out at late hours of the night, to carry concealed deadly weapons
for his own protection."
It is contended by the petitioner that the judgment under which he
was convicted is void, and his detention thereunder unlawful, for the reason
that by the terms of the ordinance the court has no discretion to fix the
penalty for its violation at a less sum than $250, and the ordinance is,
therefore, "repugnant to and not in harmony with the spirit and letter of the
laws and constitution of the state of California upon kindred subjects, and in
conflict (p.620)with the kindred statutory
provisions thereof"; and also for the reason that under the terms of his
sentence he may be confined 250 days, whereas the limit of imprisonment
which the court is authorized to impose as a punishment for the violation of the
ordinance is six months.
Counsel for petitioner has not pointed out to us any specific
provisions of the statutes or constitution of this state with which the
ordinance is directly repugnant or in conflict, but in his argument has chiefly
relied upon the proposition that the ordinance is void upon the ground that the
minimum penalty for its violations is excessive and unreasonable.
Article 11, section 11, of the constitution of this
state provides that "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 general laws." This gives to each municipality the
right to determine what police regulations it will prescribe, and the only
limitation upon the exercise of the power is, that such regulations shall not be
in conflict with the general laws of this state. There is no general law in this
state which forbids the carrying of deadly weapons concealed, so that in the
passage of this ordinance there is no violation of the constitutional
It is a well-recognized principle in government that the police
requirements of a city are different from those of the state at large, and that
stricter regulations are essential to the good order and peace of a crowded
metropolis than are required in the sparsely peopled portions of the country.
Hence the organic act of the state has directly conferred upon each city the
power to make such rules in regulating the conduct of those within its
jurisdiction as in the judgment of its legislative body will best preserve their
rights. Many police regulations which are demanded by the exigencies of life in
a crowded city have reference chiefly to social order, and (p.621)are directed to the promotion of the comfort and safety
of the citizen, as well as to the protection of individual and public property.
The mode of using the streets, the manner of conducting business, the times and
places at which certain occupations shall be plied, are instances of this class,
and the power granted to the city is limited to their regulation. It is
with reference to ordinances of this character that it is said by courts they
must be reasonable, and not violate those rights of the individual that are
superior to the demands of society. There are other police regulations, however,
which are intended for the prevention of crime and the preservation of the
public peace, and in reference to which the legislative body of the city is
vested with a discretion that is not reviewable by the courts. In the exercise
of this power, the municipality, in determining the penalty to be imposed for
violating its ordinances, is limited only by the terms of its charter, and the
reasonableness of the punishment is not to be questioned elsewhere.
It is a well-recognized fact that the unrestricted habit of carrying
concealed weapons is the source of much crime, and frequently leads to causeless
homicides, as well as to breaches of the peace, that would not otherwise occur.
The majority of citizens have no occasion or inclination to carry such weapons,
and it is often the case that the innocent by-stander is made to suffer from the
unintended act of another, who, in the heat of passion, attempts to instantly
resent some fancied insult or trivial injury. It is to protect the law-abiding
citizen, as well as to prevent a breach of the peace or the commission of crime,
that the ordinance in question has been passed. By its terms, ample provision is
made for those whose necessities of life or of occupation require protection
from carrying such weapons, and as the prohibition does not extend to those who
come within the exceptions, there is no invasion of the rights of the
Having the right to pass the ordinance in question, (p.622)the city has the right to prescribe any penalty for its
violation, within the limit designated in its charter. As the legislature has
fixed this limit at the sum of one thousand dollars (Stats. 1861,
p. 552), it follows that the penalty prescribed by the ordinance is not
The writ is discharged, and the prisoner remanded to the custody of
Paterson, J., McFarland, J., Sharpstein, J., Garoutte, J., concurred.
De Haven, J., concurred in