The opinion
Beatty, C. J. (concurring).
— I concur in the judgment. Upon the facts shown by the petition and the return, the petitioner is lawfully detained irrespective of the validity of the amended ordinance. If it is valid the complaint clearly charges him with its infraction; if it is invalid the facts alleged constitute an infraction of the unamended ordinance. In either case an offense is charged, and the imprisonment being lawful in any event, the question as to the validity of the ordinance cannot be decided in this proceeding without going outside of the case presented, which I do not care to do.
McFarland, J. (concurring)
I concur in the order remanding the petitioner, because I do not think that the points sought to be made by him can be raised on habeas corpus. A proceeding under the writ of habeas corpus cannot be turned into either a writ of error or a nisi prius trial.
As to whether parts of the ordinance in question are constitutional, I express no opinion, except to say that in my judgment, they are not covered by the Christensen case. The facts in that case are entirely different, and the dictum of the opinion therein delivered must be taken in connection with the facts then before the court. If taken in its broadest sense, then it can be maintained only by assuming that there is no constitutional right of property in wines or any kind of spirituous or malt liquors, and that by statute or ordinance, they can be confiscated wherever found, like smuggled goods.