In re Bickerstaff

McKee, J. The petitioner was convicted of keeping a saloon in the city of Stockton without having obtained a license as required by an ordinance passed the 25th of May, 1885.

The ordinance was passed under charter provisions which empowered the municipal legislature, among other things, “to license, regulate, tax .... all tippling-houses, dram-shops, saloons, bars, bar-rooms, etc., .... and to fix and collect a license tax upon all occupations and trades, and all and every kind of business, authorized by law, not heretofore specified”; and it provides “that in the business of selling intoxicating drinks, wines, ales, and beers in less quantities than one quart, or to be drank on the premises where sold, and on any other business, trade, or calling not provided by law to be licensed for state and county purposes, the amount of license shall be fixed at the discretion of the city council, as they may deem the interests and good order of the city may require; also to prevent and restrain any riot or riotous assemblage, disturbance of the peace, or disorderly conduct in any place, house, or street in the city.”

A grant of power to a legislative body to regulate trades and employment “at its discretion” confers power for that purpose unrestrained and unlimited, except by constitutional or statutory restrictions and limitations; that is to say, where power is given to a municipal legis[37]lature to legislate upon a subject, it may be exercised in conformity to fundamental provisions of the constitution and the general laws of the state applicable to the .same subject, and with its exercise courts have no power to interfere; but when legislative action results in municipal law, the validity or invalidity of the law is determinable in judicial proceedings in which the question is directly involved.

Here it is. contended that the ordinance under which the petitioner has been convicted is unconstitutional and void, because it contravenes in its eighth .section ■that part of the constitution of the United States which •declares: “Ho. state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction .the equal protection of the laws.” (14th Amend. U. S. Const.)

Section 8 of the ordinance reads thus:—