82 P. 44 | Cal. | 1905
There was an ordinance of the board of supervisors of the county of Marin, California, which, after prohibiting the use of automobiles on certain parts of the public roads of that county, and regulating their use in other respects, provides as follows: "Section 8. No person shall run an automobile on any of the said unprohibited highways of Marin County between the hours of sunset of any day and of sunrise on the day following," — and a violation of the section is made punishable by a fine or imprisonment. The above-named Thomas C. Berry was convicted of a violation of said section 8, and judgment was rendered against him sentencing him to imprisonment. He appealed to the superior court of said county, and the judgment was there affirmed. Thereupon this present application is made on his behalf for a writ of habeas corpus, and his discharge is asked upon the ground that said section 8 of the ordinance is invalid and void for certain assigned reasons.
There is nothing in any of the positions taken by petitioner which requires special notice, except the position that the provision of the ordinance here in question is void because unreasonable; and in our opinion that position is not tenable. *524
When the validity of an ordinance is attacked on the ground that it is unreasonable, the burden of showing its unreasonableness is upon the person attacking it. In Ex parteHaskell,
Of course, if the use of automobiles gradually becomes more common, there may come a time when an ordinance like the one here in question would be unreasonable. As country horses are frequently driven into cities and towns many of them will gradually become accustomed to the sight of automobiles, and the danger of their use on country roads will grow less. But the supervisors who passed this ordinance were dealing with present conditions in Marin County; and we are not prepared to say judicially that under present conditions the ordinance is so unreasonable as to be void.
We do not think it necessary to discuss the question further, because a general law has recently been passed by the state legislature which probably supersedes the ordinance here in question, and the decision of the case at bar will not be of much value as a precedent.
The person on whose behalf this writ was applied for is remanded to the custody of the sheriff, and the writ is discharged.
Shaw, J., Angellotti, J., Van Dyke, J., Lorigan, J., and Beatty, C.J., concurred.