Ex parte Campbell

McFarland, J., dissenting.

— I dissent. There is no pretense that the ordinance in question is the result of the exercise of the power to regulate, or to raise revenue for municipal purposes by license or tax. Its clear purpose is practically to destroy the ownership of certain commodities which, in other parts of the state, are recognized and dealt with as property as fully as is flour, or bacon, or sugar. One of them-—■ wine — is the product of a leading industry. It provides that these commodities shall not be sold or given away at any place within the bounds of the municipality. The power to sell or dispose of property gives to it its main valuable■ quality; and to take away this quality is to substantially confiscate it. Without discussing the many other" grave constitutional questions which the case presents, — the discussion of which other duties prevent, •—I will content myself with saying here that, in my opinion, the ordinance is “ in conflict with general laws.” The text of a state constitution is necessarily terse and concise, and it may be assumed that its framers, in stating a rule or principle, used as few words as would fairly express the idea intended. The evident intention of the clause above quoted was to prevent any confusion, or discord, or incongruity between the general legislation of the state in its broad sovereign capacity and the special legislation of its dependent municipalities. An ordi*28nance, therefore, may be in conflict with general laws, although the latter may not in express terms forbid the passage of the former. Whatever is inconsistent or inharmonious or at variance with or contradictory of or repugnant to the general policy of the state, as expressed in its general laws, is “ in conflict ” with those laws. And that there is a conflict in this sense between an ordinance which substantially declares that certain commodities shall not be property, and general laws of the state which not only impliedly but expressly declare that they are property, seems to be too clear for discussion. From the first to the last session of the legislature of this state wines and liquors have been recognized as property, and as a legitimate source of revenue. The policy of the state has been to encourage, not to cripple, their manufacture. Prior to the new constitution the state usually licensed their sale. Since the new constitution was adopted that source of revenue has been turned over to the counties. The county government bill, which is a “ general law,” expressly authorizes the county governments to license such sale; and the city of Pasadena is not authorized by its charter to suppress it. The state, too, has provided for a “ state board of viticulture,” and appropriated to its use a large sum of money. Among the duties prescribed for this board is the selecting of persons competent to lecture and impart instruction “in methods of culture, pruning, fertilizing, fermenting, distilling, and rectifying.” It is also provided that the board of regents of the University of California shall provide for special instruction “ in the arts and sciences pertaining to viticulture, the theory and practice of fermentation, distillation, and rectification, and the management of cellars, to be illustrated,” etc.; also, for an examination and report upon the woods of the state “ procurable for cooperage ”; also, for an analysis of “ soils, wines, brandies, and grapes.” And furthermore, the legislature, at its recent session, passed *29an act expressly providing for the sale of wine, and for the prevention of fraud “ in the manufacture and sale thereof.” (Stats. 1887, p. 46.) It expressly provides that the state controller shall furnish printed labels to be put on the bottles and packages “ in which wine is sold.” (Sec. 7.) Section 6 provides that “in all sales and contracts for sale, production, or delivery of products defined in thi¿ act, such products, in the absence of a written agreement to the contrary, shall be presumed,” etc. Section 8 provides that “it is desired and required that all and every grower, manufacturer, trader, handler, or bottler of California wine, when selling or putting up for sale any California wine, .... shall plainly stencil, brand,” etc. The act is quite a long one, and provides in detail for the sale of wine and the prevention of its adulteration. Now, suppose that the legislature had passed another act providing that neither spirituous, vinous, nor malt liquors should be sold or given away at any place, is there any sensible man who would not say that the two acts were “in conflict”? But the provision above supposed has been put into an ordinance of the city of Pasadena, — and is not the conflict clearly there?

The notion of local self-government was never intended to be pushed to the extreme of disregarding and defeating the will of the legislature, which speaks and acts for the state.

In my opinion, the petitioner should be discharged.