In Re Miller

California Court of Appeal Jun 6, 1910 No. Crim. No. 119.Published

Before: Burnett

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Holding. The court held that the county ordinance was a valid exercise of police power and that the petitioner's voluntary surrender for the purpose of challenging the ordinance did not constitute actual, involuntary restraint required for habeas corpus relief.

Issues

Whether a county ordinance failing to explicitly define a violation as a crime is enforceable under state law.
Whether a license tax on cattle grazing is an unconstitutional revenue measure rather than a valid regulatory police power.
Whether a petitioner who voluntarily surrenders to custody solely to challenge an ordinance is entitled to habeas corpus relief.

Disposition. Writ discharged and proceeding dismissed.

Quotations verified verbatim against the opinion

“Every person who commences or carries on any business, trade, profession or calling, for the transaction or carrying on of which a license is required by any law of this state, without taking out or procuring the license prescribed by such law”

“It is to be remembered that the presumption is in favor of the reasonableness of the charge”

“if it is found to be, as in this case, a merely nominal restraint, voluntarily submitted to for the purpose of making a case, the proceeding will be dismissed.”

Synopsis

PETITION for writ of habeas corpus.

The facts are stated in the opinion of the court.

[566]

BURNETT, J.

The petitioner was charged in the justice court of Bridgeport township, county of Mono, with misdemeanor in having commenced and carried on within said county “the business of raising, grazing, herding and pasturing cattle without having taken out or procured a license therefor, as required by an ordinance of the board of supervisors of said county. ’ ’

The said ordinance requires on the part of everyone engaged in such business the payment to the tax collector of the sum of seven cents for each cow, heifer, bull or bullock owned by, in the- possession or under the control of such person and used in such business in Mono county.

It is claimed that petitioner is entitled to his discharge for two reasons: First, the ordinance does not provide that the act complained of shall be a crime; and secondly, the ordinance is “unreasonable, unconstitutional and void, and was not passed for the purpose of regulating the business therein referred to, but was passed solely for the purpose of raising revenue.”

The ordinance does indeed omit to denounce as a crime the failure to secure said license, but petitioner was amenable to prosecution by virtue of section 435 of the Penal Code, providing that “Every person who commences or carries on any business, trade, profession or calling, for the transaction or carrying on of which a license is required by any law of this state, without taking out or procuring the license prescribed by such law, is guilty of a misdemeanor.” It has been held by the supreme court that “Any law of this state” includes ordinances of counties and municipalities.

(Ex parte Christensen,

85 Cal. 208, [24 Pac. 747];

Ex parte Mansfiels,

106 Cal. 400, [39 Pac.

775]; Ex parte Bagshaw,

152 Cal. 701, [93 Pac. 864].)

The second ground of attack is equally untenable. It is well settled that 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.”

In Re Miller

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Synopsis

BURNETT, J.

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