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District Court of Appeal, First District, Division 2, California.


Civ. 9991.

Decided: December 18, 1935

Burnett Wolfson and Earl I. Swetow, both of Los Angeles, for appellants. J. F. Goux, City Atty., of Santa Barbara, for respondents.

The plaintiffs commenced an action against the defendants to enjoin the enforcement of a license ordinance. The defendants appeared and filed a demurrer. After a hearing was had, the trial court made an order sustaining the demurrer and denying leave to amend. Thereupon a judgment was entered directing that the plaintiffs take nothing, that the action be dismissed, and that the defendants recover their costs. From that judgment, the plaintiffs have appealed.

Section 2 of the ordinance provides: “* * * And the commencing, carrying on or engaging in any trade, calling, business, profession or occupation in this ordinance specified without there first having been procured a license therefor from said City, or without complying with each and every and all of the provisions in this ordinance, shall constitute a separate violation of this ordinance for each and every day or fractional part of a day that said trade, calling, business, profession or occupation, is so carried on, and any person who shall violate any provision of this ordinance shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding Three Hundred Dollars ($300.00) or by imprisonment in the City Jail of said City for not exceeding ninety (90) days or by both such fine and imprisonment.” Section 7 of the ordinance provides: “Every person in the City of Santa Barbara who conducts or carries on or engages in the business of, or solicits orders for or accepts orders for, or maintains a regular delivery or distribution system for customary or usual delivery to and from regular customers as such of a laundry or a towel or linen supply service or a dry cleaning service, or any one or more of said three classes of business, where the plant or establishment used for the actual work of laundering or dry cleaning, or of both where both laundry and dry cleaning services are involved, is not maintained within said City of Santa Barbara at a fixed and regular place of business within said city, distinct and separate from all other places of business or residence and regularly kept open with some person in exclusive attendance thereat for at least thirty (30) hours in each and every week, shall pay to said City the following license fee, which said fee is by this ordinance required and imposed solely and only for revenue and not for any other purpose, said license fee being:

“The sum of Two Hundred Dollars ($200.00) each year payable semiannually in advance.” (Italics ours.) No other parts of the ordinance, or of any other ordinance, are pleaded in haec verba. However, there is an allegation, “That under and by virtue of the terms of the said ordinance no tax or penalty is imposed or exacted from any individual, firm or corporation who engages in the same line of business that the plaintiffs are engaged in who does maintain a plant or regularly established place of business within the said City of Santa Barbara. * * *” There are also appropriate allegations to the effect that the tax as prescribed by the said ordinance is exorbitant, oppressive, discriminatory, and in violation of the provisions of the Constitution of the United States and the Constitution of the state of California. The plaintiffs contend that the special grounds of demurrer are devoid of merit, that the demurrer admits the allegations of the complaint, that a court of equity will restrain the enforcement of an unconstitutional ordinance, that the right to do business is a property right, and that they have no plain, speedy, or adequate remedy at law. For all of the purposes of this case, those several contentions will be conceded. However, the principal contention of the plaintiffs is that the ordinance in question is unconstitutional. That point is predicated upon the contention that the ordinance imposes a burden upon one group and exempts others. They cite and rely on Ex parte Frank, 52 Cal. 606, 28 Am.Rep. 642; Lassen County v. Cone, 72 Cal. 387, 14 P. 100; Matter of Application of Richardson, 170 Cal. 68, 148 P. 213; Town of St. Helena v. Butterworth, 198 Cal. 230, 244 P. 357; Matter of Application of Hines, 33 Cal.App. 45, 164 P. 339; In re Hart, 36 Cal.App. 627, 172 P. 610; In re Riley, 39 Cal.App. 58, 177 P. 854, and In Re Robinson, 68 Cal.App. 744, 230 P. 175. No one of the cases cited is helpful to these plaintiffs. The record before us does not disclose any discrimination whatsoever. As recited above, the plaintiffs allege that the ordinance under attack does not impose a tax on those who transact a similar business, but who have places of business in Santa Barbara. The city of Santa Barbara was under no obligation to insert all provisions imposing license taxes for revenue in one ordinance. Assuming, but not conceding, the same to be material, there is no allegation that the city of Santa Barbara has not enacted other ordinances taxing for revenue other lines of business. In each of the cases cited by the plaintiffs the discrimination appeared on the face of the record before the court. Of course, it will be presumed that the municipal authorities have acted regularly in all matters. If the plaintiffs contend that in this particular instance they acted otherwise, the plaintiffs should show the facts by appropriate allegations. County of Plumas v. Wheeler, 149 Cal. 758, 87 P. 909. Nor was the ordinance in any way in conflict with the Fourteenth Amendment to the Constitution of the United States. The plaintiff cites Chalker v. Birmingham & N. W. Ry. Co., 249 U. S. 522, 39 S.Ct. 366, 367, 63 L.Ed. 748, as sustaining its contention that the ordinance is unconstitutional. We think it is clear that it does not do so. It is confined solely to the facts of that case. The validity of a statute of Tennessee was involved. That statute imposed a tax of $100 on foreign corporations which did not maintain their chief office in said state and a tax of $25 on corporations that did maintain their chief office in said state. The court held that the classification had “no adequate basis.” But, if it be contended that the ordinance involved in the instant case in effect divides certain occupations into two classes–those having a fixed place of business in Santa Barbara and those conducting the same business but who have no fixed place of business in Santa Barbara–such classification is valid under the laws of California. Ex parte Haskell, 112 Cal. 412, 44 P. 725, 32 L.R.A. 527. The same rule has been declared under the provisions of the Fourteenth Amendment to the Constitution of the United States. Singer Sewing Machine Co. v. Brickell, 233 U.S. 304, 34 S.Ct. 493, 58 L.Ed. 974. It was said in Bell's Gap Railroad Co. v. Pennsylvania, 134 U.S. 232, at page 237, 10 S. Ct. 533, 535, 33 L.Ed. 892: “The provision in the fourteenth amendment, that no state shall deny to any person within its jurisdiction the equal protection of the laws, was not intended to prevent a state from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature, or the people of the state in framing their constitution.” That rule has frequently been cited and followed. (See Rose's Notes.)

It is further contended that the trial court abused its discretion in failing to grant the plaintiffs leave to amend. We think the point is without merit. The record shows that the plaintiffs pleaded their cause of action with meticulous care. We do not find that they omitted a word which the facts would have authorized. Further-more, the record does not show that at any time the plaintiffs applied to have the judgment set aside and asked permission to amend. If they desired such relief, they should have applied to the lower court therefor. Code Civ.Proc. § 473.

We find no error in the record. The judgment is affirmed.


We concur: NOURSE, P. J.; SPENCE, J.

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