In Re Bruce

JAMES, J.

Petitioner was convicted in the police court in the city of San Diego of the offense of having conducted the business of an auctioneer without having first procured a license from said city entitling him so to do. He seeks to be discharged from custody of the chief of police on the ground that the ordinance, under the terms of which his conviction resulted, is unconstitutional and void. The particular contention made is that the ordinance in question, as its terms affect the business of auctioneering, is discriminatory. A copy of the ordinance is attached to the petition and in section 29 thereof we find the following provisions: “Class A. For every person who sells or offers for sale at public auction any real estate, live stock, or second hand goods, wares or merchandise, the sum of fifty dollars ($50.00) per year. Class B. For every person who sells or offers for sale at public auction any other property than real estate, live stock or second hand goods,

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wares or merchandise, or who sells or offers for sale at public auction any real estate, live stock or second hand goods, wares or merchandise, together with other property, the sum of ten dollars ($10.00) per day.” The charge as made by the complaint filed against petitioner declared that he did willfully and unlawfully “sell and offer for sale at public auction, new goods, wares and merchandise, without having first secured a license.” From the whole text of the ordinance in question it appears that its provisions were designed to be in part regulatory and in part for purposes of revenue. If that portion of it having to do with this petitioner’s ease could be said to be of a purely regulatory nature and hence to be justified under the police power, there would be little room for any contention to be made against its validity. “The police power, the power to make laws to secure the comfort, convenience, peace and health of the community, is an extensive one and in its exercise a very wide discretion as to what is needful or proper for the purpose is necessarily committed to the legislative body in which the power to make such laws is vested. 1

(Ex parte Whitwell,

98 Cal. 73, [35 Am. St. Rep. 152, 19 L. R. A. 727, 32 Pac. 870].) ... The manner and extent of such regulation are primarily legislative questions, and the courts will not interfere unless it clearly appears that the legislature has, under the guise of regulation, imposed an arbitrary or unreasonable burden upon the use of property or the pursuit of an occupation.”