195 P. 740 | Cal. Ct. App. | 1920
From the petition it appears that Richard Higgins was arrested and, until his release on bail when the writ ofhabeas corpus was issued, was imprisoned, on a complaint charging him with the violation of section 18 of Ordinance No. 5132, New Series, of the city and county of San Francisco. The ordinance is the general license ordinance, and section 18 is as follows: "Every person, firm or corporation engaged in the business of selling, exchanging or buying second-hand or used automobiles or other motor *535 vehicles for the purpose of resale or exchange of same shall pay a license of fifty dollars ($50) per quarter for each such place maintained, provided, however, that persons reselling used automobiles or other motor vehicles taken in exchange or part payment for new automobiles or other motor vehicles, shall pay a license of twenty-five dollars ($25) per quarter."
The record fails to show whether Higgins was dealing in new automobiles or in second-hand vehicles only. If he was in the second category of those sought to be taxed by the section in question, some of the matters on which he relies would require no consideration at this time. Since both the petitioner and the respondent present the entire matter of the validity of the enactment, it may be assumed that Higgins was engaged in the business of dealing in second-hand automobiles, and, if subject to any tax, to that of fifty dollars a quarter. In the brief for the petitioner reliance is placed on four propositions, but since the whole matter is before the court it is unnecessary to follow any artificial segregation of mere points.
In such cases as this certain fundamental rules should be borne in mind. They are so well known that citation of authority is unnecessary, but since they are sometimes overlooked, a reference to them is not amiss. [1] No legislative enactment will be declared unconstitutional unless no other reasonable conclusion is possible. Government cannot exist without recourse to the power of taxation. [2] What things are subject to taxation, and the amount and method of levying and collecting taxes, are essentially matters of legislative concern with which the courts will not interfere unless some provision of the constitution is clearly violated.[3] The same general rules apply to license taxes for revenue as to other taxes, as also to license fees enacted under the police power of the state in matters affecting the public health, safety, or morals. The power to tax and to collect license fees under the police power must be found in the generic law.
[4] The charter of San Francisco (art. II, c. 2, sec. 1, subd. 15) provides that the board of supervisors shall have power "to impose license taxes and to provide for the collection thereof; but no license taxes shall be imposed upon any person who, at any fixed place of business . . . *536
sells or manufactures goods, wares or merchandise, except suchas require permits from the board of police commissioners as provided in this charter." It further provides (art. VIII, c. 3, sec. 1, subd. 9) that the board of police commissioners shall have power "to grant or refuse to grant permits to any person engaged or desiring to engage in business as a pawnbroker, peddler, junk-shop keeper, dealer in second-hand merchandise, auctioneer and intelligence office keeper," etc. The chief of police (art. VIII, c. 4, sec. 7) "shall possess powers of general police inspection, supervision and control, over all pawnbrokers, . . . dealers in second-hand merchandise . . . All persons engaged in said callings must first procure permits from the commissioners . . . the chief may . . . empower members of the police department, when in search of property feloniously obtained or in search of suspected offenders, or in search of evidence to convict any person charged with crime, to examine the books and the premises of any such person. Any such member of the police department, when thereunto empowered . . . may examine property alleged to have been . . . lost . . . or stolen." Under these provisions the power exists both to levy license taxes for revenue and to collect license fees under the general police power. Where both powers exist in relation to a specific business it is a matter of indifference whether the particular enactment is under one or the other or both of the powers. (Gundling v. Chicago,
The argument that the section of the ordinance must be considered only as a revenue measure is without force.[5] Under subdivision 15, section 1 of chapter 2, article II, of the charter, while the supervisors have no general power to levy a tax upon the business of those who sell merchandise at a fixed place of business, they have such power if the business is one requiring a permit from the police commission. As to the latter kinds of business, the supervisors have power also to charge a license or permit fee. There is nothing in the decision of the supreme court in Rapp Son v. Kiel,
It is ordered that Richard Higgins be remanded to the custody of the chief of police of the city and county of San Francisco.
Langdon, P. J., and Nourse, J., concurred.