County of Inyo v. Erro

HENSHAW, J. These appeals were argued and submitted together. ■ They involve identical questions, and the evidence is substantially the same in each case. They may, therefore, be considered and disposed of together.

The appeals are from the judgments and from the orders denying the defendants new trials.

The questions involved are: 1. The validity of an ordinance of Inyo county requiring the procurement of a license by “every person engaged in the business of raising, grazing, herding, or pasturing sheep in the county”; and 2. The applicability of this ordinance under the evidence to the defendants.

It is first insisted that the ordinance is void on its face. Herein it is argued that, under subdivision 37 of section 25 of the County Government Act of 3893 (Stats. 1893, p. 358), boards of supervisors are authorized “to license, for purposes of regulation and revenue, all and every kind of business not prohibited by law, and transacted and carried on in such county,.....to fix the rates of license tax upon the same, and to provide for the [121]collection of the same by suit or otherwise.” The power to license is thus limited to lawful businesses “transacted and carried on” in the county, and it is urged that when the supervisors imposed the license upon those engaged in a business they exceeded their powers; for the words “transacted and carried on,” it is contended, are not equivalent to or synonymous with the words “engaged in.” In Ex parte Miranda, 73 Cal. 365, and County of El Dorado v. Meiss, 100 Cal. 268, the ordinances under consideration were identical in language with the one here in question, and the validity of these ordinances was upheld; but against this it is said that the precise point now presented was not called to the attention of this court. Even so, we fail to see either force or cogency in the argument. It is difficult to conceive of one being engaged in a business who does not transact and carry it on, and it is equally difficult to picture one transacting and carrying on a business who is not engaged in it.

The finding of the court as to each defendant was substantially the same and to the following effect: “That on the twenty-seventh day of April, 1895, and continuously thereafter until and including the ninth day of May, 1895, the defendant was engaged in the business of raising, grazing, herding, and pasturing sheep in the said county of Inyo, .... and did raise, graze, and pasture said sheep and said lands within the said county upon the natural brush and vegetation growing therein.” This finding is attacked as being unsupported by the evidence. By the evidence it was shown that the defendants pastured their sheep during the winter months in Kern and perhaps other neighboring counties; that in the spring, feed being exhausted, they drove them into Inyo county from the south, and, following generally the line of the Sierra mountains, continued the drive through Inyo county, a distance of about one hundred and forty miles, into Mono county, where they were pastured during the summer months. It consumed from nineteen to twenty-seven days to drive the sheep through Inyo county, during which time the animals ranged over land of the United States and lived upon the natural herbage of the country. Over this there is no dispute. But upon the part of the defendants evidence was offered to show that the lands thus traversed were not grazing lands; that sheepmen dislike exceedingly the necessity