Ex parte Shen

Citations

• 98 Cal. 681
• 33 P. 799
• 1893 Cal. LEXIS 980

Syllabus

<p>Constitutional Law— Municipal Ordinance—Regulating Sale of Opium— Prescription of Physician — Consistency with General Laws.—Order 2035 of the board of supervisors of the city and county of San Francisco, regulating the sale of opium in such city and county, while differing from the acts of the legislature of April 16, 1890, and March 11,1891, prohibiting the sale of opium in certain eases, in that it provides that no opium shall be sold without a prescription of a physician, is not in conflict with such acts, and is Warranted by section 11 of article XI. of the constitution, authorizing any county, city, town, or township to make and enforce within its limits “all such local, police, sanitary, and other regulations as'are not in conflict with general laws.”</p> <p>Id.—Provisions of Local Ordinance Differing from State Laws.—An ordinance or by-law of a municipal corporation is not inconsistent with general laws of the state merely because it makes another and different regulation for the sale of an article of commerce than that provided by the state law, where there is no direct conflict between its terms and the provisions of the state law.</p> <p>Id.—Criminal Law—Once in Jeopardy.— Where the offenses under a state law and a municipal ordinance are different, there is no violation of the constitutional inhibition against putting one twice in jeopardy for the same offense.</p> <p>Municipal Ordinances—Repeal by Implication—Smoking Opium—Prescription of Physician.—A municipal ordinance covering all kinds of opium, and prohibiting the sale thereof without the prescription of a physician, repeals by implication a prior ordinance licensing the sale of smoking opium, without requiring such prescription, and the court cannot say as matter of law or fact, that no respectable physician would give a prescription for smoking opium.</p>