86 Cal. 255 | Cal. | 1890
— In October, 1887, the board of supervisors of Mendocino County passed an ordinance providing for the payment of licenses by persons, firms, and corporations carrying on various kinds of business in
The principal ground urged for a reversal of the judgment is, that the power to pass an ordinance fixing licenses for the transaction of business was given to boards of supervisors by'section 4045, which was added to the Political Code by an act of the legislature passed March 13, 1883 (Stats. 1883, p. 297); that by this section it is provided that “ the licenses herein provided for shall be collected as now provided for by the provisions of chapter 15, title 7, part 3, of the Political Code of the state of California”; and that by section 3360, found in the chapter (15) referred to, it is provided that, “ against any person required to take out a license who fails, ne
The argument is faulty in two important respects: 1. It is not supported by the case cited. In that case, the ordinance involved provided that actions to collect license taxes should be commenced in the name of the people,-and the action was commenced in the name of the county. It was held that where a right is given and a remedy provided by statute or valid ordinance, the remedy so provided must be pursued, and hence that the action could not be maintained. 2. It wholly ignores the fact that, on the next day after section 4045 was added to the" code, another act was passed by the legislature, commonly called the County Government Act. (Stats. 1883, p. 299), which operated to supersede and repeal the said section, as has been held by this court in two well-considered cases. (Ex parte Benjamin, 65 Cal. 310, and County of Santa Clara v. Railroad Co., 66 Cal. 642.) By this last act, boards of supervisors in their respective counties are given jurisdiction and power, under such limitations and restrictions as are prescribed by law, “to license, for purposes of regulation and revenue, all and every kind of business not prohibited by law, and transacted or carried on in such county, and all shows, exhibitions, and lawful games carried on therein, to fix the rates of license tax upon
It is also claimed that the demurrer to the complaint should have been sustained, because it appeared therefrom that the defendant had not taken out the license required by the ordinance, and in such case, it is said, assumpsit will not lie to collect the license tax. This point is rested on the authority of City of Santa Cruz v. Railroad Co., 56 Cal. 143, and County of Monterey v. Abbott, 77 Cal. 541. But in the Santa Cruz case, as was said in City of Los Angeles v. Railroad Co., 61 Cal. 64, “it did not appear that the city of Santa Cruz had provided by ordinance for the collection of licenses by an ordinary action, or that the city charter, in terms, authorized an ordinance providing for the collection of licenses by such action.” And in the Monterey case it was held that, where a county ordinance imposing license taxes provides that actions to collect the same shall be in the name of the people, “the failure to take out a license did not, of itself, make the defendant a debtor of the county in such sense that an ordinary action in
As a last ground for reversal, it is urged that the defendant, on payment of a valuable consideration therefor, obtained a license to transact its business under an act of the legislature, passed in 1878, entitled “An act creating a board of bank commissioners, and prescribing their duties and powers ” (Stats. 1877-78, p. 740), and therefore that the county of Mendocino, which derived its authority and power from the state, could not interterfere with this privilege, or restrict it by exacting another license tax for transacting the same business. Upon this point, the learned counsel admits that he has been unable to find any authority, either pro or con. In our opinion, no authority other than the statute is necessary to justify the action of the court below. The County Government Act authorized the board of supervisors to require license taxes to be paid for the privilege of carrying on in the county “all and every kind of business not prohibited by law.” This statute fully covers the case, and there is, and can be, no pretense that it is unconstitutional.
We advise that the judgment be affirmed.
Hayne, C., and Foote, C., concurred.
The Court.—For reasons given in the foregoing opinion, the judgment is affirmed.