Wade v. City & County of San Francisco

DOOLING, J.

This is an appeal from a judgment which followed the sustaining of a demurrer to the complaint. The complaint is one in equity to enjoin the enforcement against plaintiffs of the same ordinance of the city and county of San Francisco which was attacked, by the petitioner in

In re

Mares, 75 Cal.App.2d 798 [171 P.2d 762]. The petitioner in the Mares case was an employee of the appellants and the same attacks that were made on the constitutionality of the ordinance in the Mares case have been renewed on this appeal. Since every question so presented was fully discussed and disposed of by us in our opinion in the Mares case we will not burden this opinion with a reconsideration of them further

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than to restate our conclusion that the ordinance on its face is not invalid or unconstitutional. There are however certain allegations of intentional and deliberate discrimination against the plaintiffs in the enforcement of the ordinance which do state a cause of action for relief. These allegations are here quoted:

“Many persons other than plaintiffs and other than plaintiffs’ agents and employees have, on numerous occasions, violated with impunity the provisions of said ordinance in that they have, on the public streets .and sidewalks of said City and County and in areas, doorways and entranceways immediately abutting thereon, solicited, and are continuing to solicit, the sale, to persons on said places, of subscriptions to magazines and periodicals for future delivery, and have sold, and are continuing to sell, to persons on such places tangible personal property to be delivered to the purchasers thereof at subsequent times.

“None of said other persons who have so violated the provisions of said ordinance have ever been arrested or prosecuted, or in anywise molested by defendants, or by either of them, or by any of the agents or representatives of defendants, or of either defendant, or by any of the police officers of said City and County of San Francisco.

“Defendants, their agents and representatives, and police officers of said City and County of San Francisco who act under the authority of said defendant Chief of Police, have at all times had notice and knowledge of said violations of said ordinance by said third parties as aforesaid, and, possessing such notice and knowledge, defendants, their agents and representatives, and said police officers, with intent to discriminate against plaintiffs and plaintiffs’ said business, have at all times deliberately refrained from enforcing said ordinance as against said third party violators thereof.”