County of San Luis Obispo v. Hendricks

The Court. For the reasons stated in the opinion of Department Two, judgment reversed, with directions to the court below to enter a judgment for the defendant.

Myrick J., and McKee, J., dissented.

The following is the opinion of Department Two above referred to, rendered on the 30th of June, 1886: —

Searls, C. This is an action to recover from the defendant the sum of $150, the amount of a license for carrying on, for eighteen months from November 1,1883, the business and occupation of selling spirituous, malt, and fermented liquors and wines in less quantities than one quart within the said county of San Luis Obispo, state of California, together with fifteen dollars damages and costs of suit.

Plaintiff had judgment, from which defendant appeals.

On the first day of October, 1883, the board of supervisors of the county of San Luis Obispo passed an ordinance taxing certain occupations, and among others the business of retailing spirituous and malt liquors, wines, [244]etc., at twenty-five dollars per quarter, and requiring a license to be taken out therefor.

The ordinance was ordered to be published in the Republic, a newspaper printed and published in said county, and by an order of the board, of October 9, 1883, it is recited that the ordinance was duly published.

At the time of the passage of the ordinance, there was published in said county a daily newspaper called the Daily Republic, which published a daily issue, and the same publishers at the same place printed and published a weekly newspaper called the Thursday Republic, being a separate and distinct paper from the Daily Republic.

The ordinance was published in the weekly paper.

On the 5th of February, 1885, the board of supervisors passed another ordinance, amending section 5 of article 1 of the former ordinance, so as to provide that any person who should fail, neglect, or refuse to take out a license, or who should carry on business without a license, “the tax collector may direct suit in the name of the county as plaintiff, to be brought for the recovery of the license tax, .... and in case of recovery by plaintiff, fifteen dollars must be added to the judgment and costs, to be collected from the defendant." Of this sum, five dollars went to the tax collector and ten dollars to the attorney prosecuting the suit.