In Re Higgins (1920) · DecisionDepot

In Re Higgins

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Dec 22, 1920 No. Crim. No. 948.Published

Before: Brittain

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Holding. The court held that the San Francisco ordinance imposing a license fee on dealers of second-hand automobiles is a valid exercise of the city's legislative power, whether characterized as a revenue measure or a police regulation. The classification between dealers of used cars and those taking used cars in trade for new ones is reasonable and not unconstitutionally discriminatory.

Issues

Whether the San Francisco ordinance imposing a license fee on second-hand automobile dealers is constitutional.
Whether the ordinance constitutes an invalid exercise of the city's taxing or police powers.
Whether the classification between different types of second-hand vehicle dealers is discriminatory.

Disposition. remanded

Quotations verified verbatim against the opinion

“The enactment is valid under either of the powers vested in the supervisors, and under both.”

“A dealer in secondhand merchandise is within the exception which permits the license charge to be made whether considered as a revenue or a police measure.”

“No legislative enactment will be declared unconstitutional unless no other reasonable conclusion is possible.”

Synopsis

PROCEEDING in Habeas Corpus to secure the release of petitioner from custody on a charge of violating the San Francisco license ordinance. Petitioner remanded to custody.

The facts are stated in the opinion of the court.

BRITTAIN, J.

From the petition it appears that Richard Higgins was arrested and, until his release on bail when the writ of

habeas corpus

Avas issued, was imprisoned, on a complaint charging him with the violation of section 18 of Ordinance No. 5132, New Series, of the city and county of San Francisco. The. ordinance is the general license ordinance, and section 18 is as follows: “Every person, firm or corporation engaged in the business of selling, exchanging or buying second-hand or used automobiles or other motor

[535]

vehicles for the purpose of resale or exchange of same shall pay a license of fifty dollars ($50) per quarter for each such place maintained, provided, however, that persons reselling used automobiles or other' motor vehicles taken in exchange or part payment for new automobiles or other motor vehicles, shall pay a license of twenty-five dollars ($25) per quarter.”

The record fails to show whether Higgins was dealing in new automobiles or in second-hand vehicles only. If he was in the second category of those sought to be taxed by the section in question, some of the matters on which he relies would require no consideration at this time. Since both the petitioner and the respondent present the entire matter of the validity of the enactment, it may be assumed that Higgins was engaged in the business of dealing in second-hand automobiles, and, if subject to any tax, to that of fifty dollars a quarter. In the brief for the petitioner reliance is placed on four propositions, but since the whole matter is before the court it is unnecessary to follow any artificial segregation of mere points.

In such cases as this certain fundamental rules should be borne in mind. They are so well known that citation of authority is unnecessary, but since they are sometimes overlooked, a reference to them is not amiss.

[1]

No legislative enactment will be declared unconstitutional unless no other reasonable conclusion is possible. . Government cannot exist without recourse to the power of taxation.

[2]

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A dealer in secondhand merchandise is within the exception which permits the license charge to be made whether considered as a revenue or a police measure. The correlative argument that the ordinance cannot be considered as regulatory in character because it discriminates between the business of taking second-hand vehicles in exchange for new ones and the business of dealing in second-hand vehicles is fallacious. It is a matter of common notoriety that the theft, disguise, and resale of motor-cars has become so common as to tax the powers of the police throughout the United States to recover the stolen cars and to bring the criminals to trial. It would be fatuous to assume that a motor-car thief would very often pay the difference between the second-hand value of a used car and the selling price of a new car. The tendency of the thief would be to get money in exchange for the stolen car from those in the business of buying used cars for resale. Without reflecting in any way on the petitioner or on any other dealer in used cars, of whom there must be as honest and honorable men as those in any other mercantile pursuit, it is also a matter of common notoriety that the temptation to buy cheaply, which is so often presented to those carrying on the business of pawnbroker, junk dealer, second-hand dealer, and kindred activities, renders it necessary for the public safety and morality that their business activities be subjected to police scrutiny and regulation. There is a clear distinction between the business of buying at the lowest price second-hand automobiles for resale and the business of selling new cars at the highest price and taking used cars in part payment. In the one case the object is to make a profit on original sales of new cars, and in.the other to make a profit on the purchase and resale of second-hand cars. These reasons furnish a sufficient ground for a classification between the two classes of dealers in second-hand cars. In this case the license charge is upon a business subject to police control. The Bichardson case (170 Gal. 71, [148 Pac. 213]) dealt only with license taxes imposed solely for revenue. It is, therefore, inapplicable to this phase of the present case. The last contention of the

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Synopsis

BRITTAIN, J.

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