Ex Parte Fedderwitz

¶1I 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 beer to a guest; and I desire to say that when a petitioner convicted of this time-honored hospitality shall come here for relief I will not feel myself precluded from again inquiring whether or not a personal right guaranteed by the constitution has been violated.