Gilbert v. Ashley

MUSSELL, J.

Plaintiffs have appealed from a judgment rendered against them in an action to enjoin the city clerk, the chief of police and the city council of the city of Escondido from enforcing a business license ordinance, known as ordinance No. 409. Plaintiffs contend that this ordinance

[415]

is void because it is substantially a reenactment of a previously enacted ordinance, No. 385, which was defeated by the voters of the city at a referendum election.

Ordinance No. 385 was adopted and passed by the city council on June 25, 1947, and by its terms was made effective on and after August 1st, of that year. A referendum petition was circulated, and, pursuant thereto, an election was held on April 13, 1948, at which time the ordinance was defeated.

On December 15, 1948, ordinance No. 409 was adopted by the city council. It contained a recital that inasmuch as it provided for a tax levy for the usual current expenses of the city it was to take effect immediately, but that no tax should be collected for any period commencing before January 1, 1949.

Both ordinances were designed to raise revenue for municipal purposes by the imposition and collection of license fees or taxes, for the privilege of transacting and carrying on businesses, trades, professions, callings and occupations in the city of Escondido, and the moneys collected were to be deposited in the general fund of the city. However, the two ordinances differ from each other in substance relating to items of importance. Ordinance 409, unlike ordinance 385, contains a provision that the tax levy is for the usual current expenses of the city. The ordinance is therefore not subject to referendum, as ordinances providing for tax levies or appropriations for the usual current expenses of a city are excepted from the referendum provisions of article IV, section 1, of the state Constitution.

(Hunt

v.

Mayor & Council of Riverside,

31 Cal.2d 619, 623 [191 P.2d 426].) The tax rate imposed in ordinance 409 is not the same as in ordinance 385 and each enactment deals with a different tax year. The ordinances also differ from each other in exemption and enforcement provisions and in numerous other particulars which impel the conclusion that ordinance 409 is not similar to ordinance 385 in all its essential features and provisions.