In Re Hoskins

California Court of Appeal Aug 24, 1936 No. Crim. 405Published

Before: Marks

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Holding. The court held that the city's license ordinance was unconstitutional and void because it created an arbitrary and discriminatory classification based on the antecedent ownership of goods rather than on reasonable distinctions between businesses.

Issues

Whether a municipal license ordinance imposing a $100 daily fee on the sale of damaged goods is unconstitutional due to discriminatory classification.
Whether the ordinance's exception for original owners of damaged goods creates an unlawful distinction between persons similarly situated.

Disposition. Petitioner discharged and bail exonerated.

Quotations verified verbatim against the opinion

“The attempted classification is based not upon differences in businesses conducted but upon the antecedent ownership of the goods offered for sale.”

“It is well settled in California that a municipality may not discriminate between persons similarly situated and engaged in similar businesses by imposing different license taxes upon them.”

“It follows that the quoted section of the ordinance is void as it is discriminatory and therefore unconstitutional”

MARKS, Acting P. J.

This is an original proceeding for

habeas corpus

to secure release of petitioner from confinement under a warrant issued out of the police court of the city of Bakersfield. The warrant was issued upon a complaint containing five counts, each charging a violation of the license ordinance of that city. Pour of these counts allege separate daily violations of the following section of the license ordinance:

“Every person, firm, or corporation who sells in the City of Bakersfield any bankrupt, assigned or damaged goods, wares or merchandise, drugs, jewelry, dry goods, boots, shoes, clothing, hardware, groceries, furniture or stock of merchandise shall pay a license fee of One Hundred ($100.00) Dollars per day, payable in advance daily; provided, that this section shall not apply to any stock of goods owned by any person actually conducting a regular place of business in the City of Bakersfield, which stock has been damaged by fire, or water resulting from such fire, at his said place of business.”

Under the admitted facts it appears that Prank V. Harrison conducted a men’s furnishing store; that the Hughes Drug Store, a drug store, was operated in the same building; that on May 26, 1936, a fire occurred which damaged the two stocks of merchandise and destroyed the building; that petitioner became the owner of the damaged stocks of merchandise and moved them to another location in Bakersfield where he sold and proposes to continue to sell the damaged goods; that the license collector of the city refused to issue any license to petitioner other than the one costing $100 per day, mentioned in the section of the ordinance which we have quoted; that petitioner refused to pay the license of $100 per day but offered to pay the license imposed on ordinary merchants, in another section of the ordinance, which varied in amount from three to seventy-five dollars per quarter, depending on the volume of business transacted; that the

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license collector refused to accept the lesser fee and the arrest of petitioner followed.

As his first ground of attack on the legality of his confinement petitioner urges that the quoted section of the ordinance, in its last clause, expressly excepts from the license tax of $100 per day, the damaged goods which he proposes to sell. If that clause stood alone, and by itself, there might be merit in this argument. The section must be construed as a whole. The license of $100 per day is imposed upon the

In Re Hoskins

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