Mendocino County v. Bank of Mendocino

Belcher, C. C. — In October, 1887, the board of supervisors of Mendocino County passed an ordinance providing for the payment of licenses by persons, firms, and corporations carrying on various kinds of business in [256]that county, and, among others, the business of banking and loaning money at interest, and also providing that the district attorney should commence suit, in the name of the county, to recover the license tax, against any one required but refusing to pay the same, and that, in case of recovery by the plaintiff, twenty-five dollars damages should be added to the judgment, to be collected from the defendant. At the time the ordinance was passed, and thereafter, the defendant was engaged in the business of banking and loaning money at interest in the county, but refused to pay the license tax required in such case, and thereupon this action was commenced in a justice’s court to recover the same with the penalty. The defendant interposed a general demurrer to the complaint, which was overruled, and then answered. By its answer, which was verified, it alleged that the board of supervisors had no right or power to levy, assess, or collect a license from defendant for transacting its business, and that the license tax claimed was illegal, and not warranted in law. An order was thereupon made, transferring the case to the superior court of the county for trial, and in that court it was subsequently tried, and judgment given for plaintiff for the amount sued for. From the judgment so rendered, the defendant appeals.

The principal ground urged for a reversal of the judgment is, that the power to pass an ordinance fixing licenses for the transaction of business was given to boards of supervisors by'section 4045, which was added to the Political Code by an act of the legislature passed March 13, 1883 (Stats. 1883, p. 297); that by this section it is provided that “ the licenses herein provided for shall be collected as now provided for by the provisions of chapter 15, title 7, part 3, of the Political Code of the state of California”; and that by section 3360, found in the chapter (15) referred to, it is provided that, “ against any person required to take out a license who fails, ne[257]gleets, or refuses to take out such license, or who carries on, or attempts to carry on, business without such license, the collector may direct suit in the name of the people of the state of California, as plaintiff, to be brought for the recovery of the license tax,” etc. The argument is, that, under these sections, the board of supervisors had no power to provide, as it did, that suit to collect the license tax should be brought in the “ name of the county of Mendocino,” and that the ordinance was to that extent void, and consequently the action in the name of the county was not authorized, and could not be maintained. (Citing County of Monterey v. Abbott, 77 Cal. 541.)