Messrs. Lynn Helm, Edward C. Bailey, Henry T. Lee, J. R. Scott, and Charles W. Chase for plaintiff in error.
Messrs. W. B. Mathews and Herbert J. Goudge for defendant in error.
Mr. Justice Day delivered the opinion of the court:
This case is practically determined by views expressed in Dobbins v. Los Angeles, 195 U.S. 223 , 25 Sup. Ct. Rep. 18, 49 L. ed. 169. It was a petition for a writ of habeas corpus to discharge Daly from custody, in a prosecution under the ordinance under consideration in the Dobbins Case. The prayer of the petition was denied and the writ discharged. Re Daly, 139 Cal. [195 U.S. 242, 243] *216, 72 Pac. 1097. Under the California practice, in the absence of issue joined the allegations of the petition are taken as true and the facts alleged therein are taken as admitted. Re Smith, 143 Cal. 368, 77 Pac. 180. The petition made allegations attacking the ordinance, which, if true, would render it invalid for the reasons stated in the Dobbins Case, supra, and the petitioner upon the record made should have been discharged from custody.
It is therefore ordered that the judgment of the Supreme Court of California be reversed and the cause remanded for further proceedings not inconsistent with the views announced in the Dobbins Case, supra.