112 Cal. 412 | Cal. | 1896
The city of Chico is a municipal corporation of the fifth class, having power as such to license, for purposes of regulation and revenue, all and every kind of business transacted or carried on in such city, and to fix rates of license tax upon the same, and provide for their collection. It has an ordinance which, among other provisions thereof relating to the revenue, has the following:
*416 “ Persons, outside of those conducting regular places of business, selling different articles of apparel, dry goods, fancy goods, notions, jewelry, cutlery, groceries, harness, pianos, organs, machinery of all kinds, vehicles, hardware, tinware, mill products, or merchandise of any class or character, to persons not regularly engaged in, or carrying on, such lines of business, whether by sample or otherwise, shall pay a license of fifty dollars per quarter.”
Haskell, a traveling salesman for a shirt house in Oakland, was arrested, and is held by the marshal of Chico, upon a warrant issued from the recorder’s court of said city, upon a complaint which charges Haskell with a misdemeanor in vending within said city wearing apparel, to wit, shirts by sample, without a license therefor, in violation of the provision of said ordinance above quoted.
The petitioner asks that Haskell be discharged on habeas corpus, upon the ground that the ordinance is void and of no effect for various alleged reasons, and so furnishes no competent authority for his detention.
It is urged, in effect, that the particular provision in question is unreasonable and oppressive, and that it is unequal and unlawfully discriminating. But we are unable to regard it as open to either or any of these objections. A municipal ordinance must be very clearly obnoxious to such objections as those made, or some one of them, before it will be declared invalid by the courts. Every intendment is to be indulged in favor of its validity, and all doubts resolved in a way to uphold the lawmaking power; and a contrary conclusion will never be reached upon light consideration. It is the province and right of the municipality to regulate its local affairs —within the law, of course—and it is the duty of the courts to uphold such regulations, except it manifestly appear that the ordinance or by-law transcends the power of the municipality, and contravenes rights secured to the citizen by the constitution, or laws made in pursuance thereof. That the ordinance in question violates any such right we are unable to perceive. It
It may well be that to the knowledge of the city council the profits of such itinerant business, by reason of the fact that there are no rents, taxes, insurance, or other municipal charges to pay in its pursuit, are so much greater proportionately over the same amount of business done at a fixed place as to fully justify the difference in the tax imposed. Indeed, the right to make such discriminating distinctions, based upon. like grounds, is amply sustained by authority, and in many eases involving a much greater disparity between the jrates charged than is exhibited here.
In Warren Borough v. Geer, 117 Pa. St. 211, where the town passed an ordinance requiring every person canvassing from house to house, soliciting orders for books, pictures, gentlemen’s shirts, etc., to take out a license, and the license for selling shirts was three dollars a day, it was held that this ordinance was not unreasonable nor in conflict with the constitution of the United States or that of Pennsylvania, the court saying: “ The «effect of the ordinance would seem to be to subject persons who would otherwise pay no license for the privilege of doing business within the borough to the duty of paying something for the privilege, when they undertook to exercise it without incurring the expense of a mercantile license. There is surely nothing unreasonable in such a requirement.”
The same principle is involved in Ex parte Heylman, 92 Cal. 492, decided by this court, upholding a license passed by the board of supervisors of the city and county of San Francisco, for peddling meats or fish from wagons or baskets, where the license charged was seventy-five dollars a quarter for a meat peddler, and only ten dollars a quarter for peddlers of fish, vegetables, fruit, game, or poultry, and where the amount charged for vending meat by this method was a different and higher license from that charged for selling meat at a fixed place of business. In that case it is said: “The validity of such an ordinance is not now an open question here.” (See, also, County of Amador v. Kennedy, 70 Cal. 460; Ex parte Felchlin, 96 Cal. 360; 31 Am. St. Rep. 223.)
Nor is the provision in question unlawfully'discriminating. It may be conceded that, if it could be said to discriminate in favor of residents of the city of Chico by requiring such license only from nonresidents engaged in the line of business pursued by Haskell, it would be bad; or if it discriminated against residents of the state, or against merchandise from without, or not the product of, the state, that it would be void, as being in effect a regulation of interstate commerce—• something entirely within the power of Congress. But it does neither of these. In the contention that it does so discriminate against nonresidents of the municipality, counsel has evidently confused this provision with another in the same ordinance relating to hawkers and peddlers who carry their goods with them, which last may be in its terms open to such objection. But the latter provision is a wholly independent one, relating to a different class, and in no way affects the eonstruc
There is nothing in Ex parte Frank, 52 Cal. 606, 28 Am. Rep. 642, necessarily opposed to this view. In that case the attempted discrimination was made to depend, not upon the fact of any essential difference in the methods of carrying on the business, or the profits to
Within the principles of Ex parte Miller, 89 Cal. 41, we discover no merit in the objection that the ordinance is void by reason of the penalty imposed, even if such objection can properly arise until after conviction. (See Ex parte Mansfield, 106 Cal. 400.) Nor is there anything in the further point that the ordinance is void because embracing more than one subject, and that not expressed in its title. The provision of the constitution as to the requirement in that respect of acts of the legislature is not made applicable in terms to municipal ordinances, and was evidently not intended so to apply. Its application would practically put an end to the practice of many cities and towns in the state, prevailing both before, at the time, and since the adoption of that instrument, of codifying the ordinances of the municipality, as in this instance, into compact and convenient form in a single ordinance. A similar requirement of the constitution of Missouri was held not to apply to city ordinances, in the absence of an express provision of the statute making it so. (Tarkio v. Cook, 120 Mo. 1; 41 Am. St. Rep. 278.)
We discover nothing in the provision of the ordinance under consideration which renders it invalid under the objections made.
The -writ is denied and the prisoner remanded.
Harrison, J., Garoutte, J., McFarland, J., and Henshaw, J., concurred.
Temple, J., dissented.