171 P. 434 | Cal. | 1918
This appeal was first heard in the district court of appeal for the first district, where the following opinion, prepared by Mr. Justice Richards, was filed: *623
"This is an appeal from a judgment in the defendants' favor following an order sustaining their demurrer without leave to amend.
"The complaint shows that the plaintiff is a corporation engaged in the retail dry-goods business in the city of San Francisco having customers within said city and also within the several cities and towns in proximity to said metropolis and around the San Francisco bay, among which is the city of San Mateo; that for the purpose of delivery of articles of merchandise purchased from it by residents of or in the vicinity of the city of San Mateo the plaintiff maintains within said city of San Mateo a system of local delivery, consisting of horses and wagons in charge of its employees, whose daily duty it is to receive such articles of merchandise at the stations in said city to which they have been shipped by rail, there to load same upon such delivery wagons and deliver the several articles of merchandise to their respective purchasers within and about said city; that the city of San Mateo has an ordinance entitled 'General License Ordinance,' which provides, in subdivision 13 of section 11 thereof, for the levying and collection of a license tax upon every person, firm or corporation driving, operating or maintaining upon any street in said city a delivery wagon or wagons, at a specified rate for each such wagon according to its tonnage capacity. The defendants are averred to have persistently attempted to collect the amount of license required by this ordinance from the plaintiff, and this action was instituted to enjoin them from so doing. The plaintiff contends that the ordinance is invalid for several reasons, and also that even though generally valid it is inoperative in its application to the plaintiff.
"With respect to the power of the city of San Mateo to enact the ordinance in question we think its authority to do so was ample under section 10 of article XI of the state constitution; and also under section 862, subdivision 10, of the Municipal Incorporation Act, [Stats. 1883, p. 270], under which San Mateo was organized as a city of the sixth class.
"The main question in the case arises out of the disputed applicability of the ordinance to the plaintiff, its contention in that behalf being that the power conferred by the constitution and statute upon the city of San Mateo and attempted to be exercised in the form of the ordinance in question was *624 that of imposing a tax upon business privileges, and that as such said ordinance must be confined in its operation to such business as is transacted and carried on in such city and town, and under the express terms of the grant of power to it in the act of its incorporation; and hence that the plaintiff, as a business institution established and being conducted in San Francisco, is not subject to the terms of said ordinance.
"It may be conceded that if the case presented by the complaint shows that the plaintiff, selling articles of merchandise in and at its place of business in San Francisco to persons residing in the city of San Mateo and its vicinity, and as an incident to such sales, was engaged in making such casual and occasional deliveries of such merchandise in San Mateo and other outside towns or cities as their retail sales therein required, by means of delivery wagons going out from its said place of business in the metropolis and passing over and along the streets of the city of San Mateo in the course of making such deliveries, the said plaintiff would not be subject to the imposition or collection by such outside municipality of a license tax upon its said delivery wagons. It would seem to be the rule that such use of the streets of a city as would be merely occasional and incidental to a business conducted elsewhere than within its boundaries would not be the proper subject of taxation. (In re Smith,
"Judgment affirmed."
Upon petition of the appellant, the cause was ordered transferred to this court. After careful consideration of the points presented, we have reached the conclusion that the opinion of the district court of appeal makes an entirely correct and satisfactory disposition of the questions presented.
For the reasons therein stated, it is ordered that the judgment appealed from be affirmed.