Benson v. City of Long Beach

BISHOP, J. pro tem.

Plaintiff was engaged in the busi-

ness of an agent placing bets on race horses for those who fancied they could increase their fortunes in that way. His activities would have been considered unquestionably unlawful, because in violation of the provisions of section 337a of the Penal Code, but for the facts that the Legislature had given its stamp of approval to betting on horse races under the

pari mutuel

system (Stats. 1933, p. 2046; Deering’s Gen. Laws, 1937, Act 3421) and had broadened the scope of its approval by an amendment made in 1935 (Stats. 1935, p. 1943). The provisions of the amendment are set forth in the case soon to be cited. We are not concerned with those provisions but only with these consequences: the attorney general interpreted them as authorizing such activities as plaintiff was engaged in; defendant’s city prosecutor advised its city council that he concurred in the attorney general’s interpretation; and the city council, city manager and city clerk accepted that interpretation. So it was that the city council adopted an amendatory ordinance, adding plaintiff’s business to the list of businesses for which licenses were required under the city’s general license ordinance, and fixing a fee of $3,000 as the tax for each license. Plaintiff applied for licenses to operate his business at two locations in the defendant city, paying $6,000 as required by the ordinance. On December 21, 1937, the licenses were issued by the city clerk and mailed to the plaintiff.

Unknown to the city clerk, and also on December 21, 1937, an opinion was filed in the case of

In re Goddard,

(1937) 24 Cal.App.2d 132 [74 P.2d 818], the effect of which was that plaintiff’s business remained an offense under section 337a of the Penal Code. On December 22, even before the mail

[191]

brought the plaintiff his licenses, defendant’s chief of police notified the plaintiff that his business was forbidden by state law and if he continued in it he would be arrested and prosecuted. For some twenty days after the chief’s warning the plaintiff continued to carry on his unlawful business (unlawful because of section 337a, Penal Code, not unlawful because conducted without the license required by the city ordinance) but he then desisted and in this action, begun in June, 1939, seeks to recover from the city the price paid for his licenses. The trial court entered its judgment that the plaintiff take nothing, and from this judgment the plaintiff has appealed. We have reached the conclusion that the judgment should be affirmed because we know of no legally sufficient ground upon which a judgment in favor of the plaintiff can be sustained, the sympathy that is naturally aroused for one who has, through no fault of his own, made a bad bargain, not constituting such a ground.