Ex parte Mount

Morrison, C. J. The petitioner alleges that he is unlawfully imprisoned and restrained of his liberty by the captain of police of the city of Oakland, and the officer, in his return to the writ of habeas corpus served on him, shows that he detains the petitioner under a warrant of arrest issued out of the police court of said city. The warrant recites a complaint under oath made against the petitioner, charging him with carrying on the business of selling goods, wares, and merchandise at a fixed place of business, in the city of Oakland, without first taking out a license to do so, in violation of an ordinance of the city, providing for and requiring such license.

In his application for a discharge, the petitioner makes the following points, and urges the following grounds:

1. That the city of Oakland has no power to collect or require a license from any kind or class of business, except such as are specified in section 5 of the charter of 1862.

2. That so much of section 5 as purports to authorize- a license upon vendors of goods, wares, and merchandise, etc., is unconstitutional and void, and confers no power.

3. That if the power to require or collect a license exists, it cannot be enforced by penalty of fine and imprisonment.

In answer to the foregoing points made by the petitioner, respondent contends that the power to pass the ordinance and fix [449]the license imposed in the present case is vested in the municipal authorities, first, by the charter of the city of 1862 ; and, second, by sections 11 and 12 of article xi. of the constitution of 1879.

By the act of April 24, 1862, amendatory of a previous act, incorporating the city of Oakland, it is provided, in the section enumerating the powers and duties of the city council, that “ they shall have power of licensing, taxing and regulating all such vehicles, business and employments as the public good may require, and as may not be prohibited by law.”

And by section 52, p. 353, of the same act, it is provided that “ Licenses shall be discriminating, and proportionate to the amount of business.”

It is claimed that section 4 of the act simply provides that the city council shall have power to make regulations for licensing, taxing, and regulating all such vehicles, business and employments as the public good may require,” but that it contains no express grant of power either to issue or grant, or to require a license to collect any money or tax therefor. But we are of opinion that the power of regulating or to “ make regulations ” was sufficient, and that it carries with it and includes the power to pass an ordinance requiring a license to be taken out, as was done by the ordinance in question.