The Emporium v. City of San Mateo

THE COURT.

This appeal was first heard in the district court of appeal for the first district, where the following opinion, prepared by Mr. Justice Richards, was filed:

[623]

“This is an appeal from a judgment in the defendants’ favor following an order sustaining their demurrer without leave to amend.

“The complaint shows that the plaintiff is a corporation engaged in the retail dry-goods business in the city of San Francisco having customers within said city and also within the several cities and towns in proximity to said metropolis and around the San Francisco bay, among which is the city of San Mateo; that for the purpose of delivery of articles of merchandise purchased from it by residents of or in the vicinity of the city of San Mateo the plaintiff maintains within said city of San Mateo a system of local delivery, consisting of horses and wagons in charge of its employees, whose daily duty it is to receive such articles of merchandise at the stations in said city to which they have been shipped by rail, there to load same upon such delivery wagons. and deliver the several articles of merchandise to their respective purchasers within and about said city; that the city of San Mateo has an ordinance entitled ‘ General License Ordinance, ’ which provides, in subdivision 13 of section 11 thereof, for the levying and collection of a license tax upon every person, firm or corporation driving, operating or maintaining upon any street in said city a delivery wagon or wagons, at a specified rate for each such wagon according to its tonnage capacity. The defendants are averred to have persistently attempted to collect the amount of license required by this ordinance from the plaintiff, and this action was instituted to enjoin them from so doing. The plaintiff contends that the ordinance is invalid for several reasons, and also that even though generally valid it is inoperative in its application to the plaintiff.

“With respect to the power of the city of San Mateo to enact the ordinance in question we think its authority to do so was ample under section 10 of article XI of the state constitution; and also under section 862, subdivision 10, of the Municipal Incorporation Act, [Stats. 1883, p. 270], under which San Mateo was organized as a city of the sixth class.