concurring. — I concur in the judgment. I cannot agree with Mr. Justice Temple, however, in his construction of the ordinance. It is not only intended to cover cases not provided for by section 307 of the Penal Code, but it accomplishes that end. Thus section 6 provides: “ It shall be unlawful for any person to aid and abet or assist another person in the smoking of opium, or inhaling the fumes of opium.” This provision has no reference to the place where the smoking is done; and section 3, under which the petitioners were convicted, is aimed more at the act of smoking than at the place where it is indulged in. I think, therefore, that the question must be met and answered in this case, whether the city council has unlimited power to prohibit the smoking of opium under all circumstances. The provisions of section 3 of the ordinance upon which the complaint was made are general, universal in their operation, and present the issue squarely. Will they support a conviction? I feel bound to answer this question in the negative. However much we might prefer a different conclusion in this particular case, there are certain great principles which cannot be invaded in special cases without trespassing upon that province which Mr. Justice Temple speaks of as being dangerous to enter by legislation. Every man has the right to eat, drink, and smoke what he pleases in his own house without police interference (unless he is trying to kill himself); and before the state or municipal authorities should ask the conviction of a person for smoking, eating, or drinking any particular thing, facts ought to be alleged and shown —even in cases of opium-smoking—that at least it was not done in the privacy of his own house, or that he was using his house as a resort for others, or that he was in some way aiding, encouraging, or abetting others in the use of the drug,—injuring or jeopardizing the rights of others; or in a word, that he was offending against the welfare of society in some way, beyond merely the inju*151rieras effect of the act upon himself alone. That some of the sections of the ordinance are valid, and that section 3 of the ordinance can be so amended as to provide lawfully for conviction in the cases which it was intended to cover, I have no doubt.
It is unnecessary to say, in this case, how far the local authorities may go in their legislation against gambling-houses or saloons. The legislature has recognized the opium habit as a great evil. It has by general legislation attempted to suppress it. Section 307 was passed and approved for that purpose. By an act entitled “An act to regulate the sale of certain poisonous substances/5 approved April 16, 1880, it was made a misdemeanor, punishable by a fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment, for any person other than a physician authorized to practice medicine under the laws of this state to retail opium without distinctly labeling the box or package, and the wrapper or cover thereof,together with the word“poison/5 and the name and place of business of the seller; and the act further provided: “Nor shall it be lawful for any person to retail any of the substances enumerated in either of said schedules to any person, unless upon due inquiry it is found that the person receiving the same is aware of its poisonous character, and that it is to be used for a legitimate purpose.” Section 2 of the act requires the seller to keep a book in which shall be entered the date of sale, name of the purchaser, quantity sold, purpose for which the purchaser stated it was required, etc., and that the book should be always open to inspection by the proper authorities. But all this legislation has failed to meet the exigency of affairs, and unless we close our eyes to what is taking place daily in the larger cities of the state, and becoming a part of our most deplorable police history, we must recognize the fact that those who are engaged in this nefarious traffic—especially that *152class who seek among the youth of both sexes for victims of the drug — are the most insidious enemies of society. For the purpose of shielding themselves and their enslaved and unhappy customers from arrest and punishment for violation of the law, they secrete themselves and their “outfits” in deserted buildings, under bridges, and in out-of-the-way places; thus planning in advance of arrest that which will be a defense under section 307, viz., that they were not caught in a place which was opened to be resorted to by others, and where opium is sold or given away.
They sell the opium at one place, lease their smoking outfits to be used at another place, and keep constantly moving about with transitory “joints,” thus eluding the police and evading the operation of the statute. These are matters of common notoriety. A resort being “ a place of frequent assembly, a haunt ” (Webster), before a conviction can be secured under section 307, it must be shown that the place where the smoking was done was opened or maintained to enable opium-smokers to frequent the same for the purpose of smoking. But it is not for us to say what municipal legislation should or may be provided. What I have said is intended only in support of other provisions of the ordinance which, though different from or the same as the state law, are, in my opinion, valid, notwithstanding the invalidity of section 3.