In Re Gundelfinger

KNIGHT, J.

Petitioner was arrested for violating the provisions of a municipal ordinance, and seeks to be discharged from custody on a writ of

habeas corpas.

The city and county of San Francisco maintains an ordinance imposing a license tax upon various classes of business conducted within its boundaries. Section 83 thereof reads as follows: “Every person, firm, or corporation engaged

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in the business of buying or selling mining stocks, bonds, state, county or municipal stocks or bonds, or stocks of incorporated companies or evidences of indebtedness of private persons or of incorporated companies, directly or on margin, shall pay a license . . . ,” the amount of which varies from twelve to fifty-two dollars a quarter, according to the amount of commissions or gross profits earned by the business. Section 90 declares a violation of any of the provisions of said ordinance to be a misdemeanor. The complaint herein charged that petitioner did wilfully and unlawfully “engage in the business of buying and selling bonds, stocks, and evidences of indebtedness, of private persons and of incorporated companies without having obtained the municipal license so to do,” in violation of the provisions of sections 83 and 90 of said ordinance.

The charter of said city contains the following provision: “Subject to the provisions, limitations and restrictions in this charter contained, the board of supervisors shall have power: 15. To impose license taxes and to provide for the collection thereof;

but no license taxes shall be imposed upon awy person who, at any fixed place of business in the city and county, sells or manufactures goods, wares or merchandise,

except such as require permits from the board of police commissioners as provided in this charter.” (Article II, chapter II, section 1, subdivision 15.) (Italics ours.)

Petitioner contends that the phrase “goods, wares or merchandise” as used in the foregoing charter provision includes every species of personal property, that is, all property which is not real estate or freehold; and that therefore, since bonds, stocks, and evidences of indebtedness are deemed to be personal property, section 83 of the ordinance, which imposes a license tax upon the business of buying and selling such property, is violative of the italicized portion of the charter provision above quoted, and consequently void.