Biber Electric Co. v. City of San Carlos

[343]

GOOD, J. pro tem.

*

In this action plaintiff sought declaratory relief and to enjoin enforcement of San Carlos’ Ordinance Number 462 (codified § 4038) adopted October 14, 1958. The ordinance required the owner of every commercial vehicle driven on any San Carlos street by any person or firm subject to business licensing within said city to display a certain emblem on or near the left door of such vehicle. Each business licensee was entitled to one such emblem without fee and a charge of $1.00 was imposed for each additional emblem that might be required by a licensee. Plaintiff was an electrical contractor and subject to the San Carlos business license ordinance. It operated eight vehicles in its business. The preamble to Ordinance 462 recites that ready identification of business licensees would be facilitated by the use of such emblems and they “would, therefore, facilitate the policing of said City. ’ ’ Defendant appeals from a judgment declaring the ordinance unconstitutional. The declaratory judgment is supported by a specific finding that the ordinance is invalid because it attempts to impose additional requirements in fields that are pre-empted by the State of California.

The defendant argues that the imposition of a business license fee measured by the number of commercial vehicles of a firm using its streets is not an attempt to enter into a field pre-empted by the State. The argument might be valid if the charge imposed by the ordinance was a business license fee. But by its very terms, the taxable transaction involved in this ordinance is the use of city streets by commercial vehicles of business licensees. The city’s next argument is that the ordinance in question is not regulatory because any licensee can procure the emblem without examination or investigation and, therefore, is a valid exercise of the police power as applied to a municipal affair, namely, the enforcement of the business license ordinance of said city. Granting the validity of the proposition that an exercise of police power in the regulation of a municipal affair will take precedence over a State statute (cf.

Natural Milk etc. Assn.

v.

City & County of San Francisco,

20 Cal.2d 101 [124 P.2d 25]), the argument again fails because the ordinance is not a business license ordinance. Its connection with the enforcement of the business license ordinance is entirely incidental and indirect. The fee charged is not a business license but a license upon vehicles using city streets, matters which are clearly governed by sections 9250