Colusa County v. Seube

CHIPMAN, C. Action to recover a license tax for carrying on “the business of selling liquors at retail, in quantities less than one quart, at a saloon in Colusa county.” Plaintiff had judgment, from which defendant appeals. It was [33]stipulated as fact “that the defendant did, from the fifth day of November, 1895, to the- day of December, 1895, carry on a business of selling liquors at retail, and did sell spirituous .... liquors, in quantities of less than one quart, . ... as in said complaint alleged.” Section 4 of the ordinance, under which the action is brought, reads: “Every person who sells spirituous, malt or fermented liquors or wines, in quantities less than one quart, must obtain a license and pay therefor one hundred dollars per year.” Section 14 of the ordinance provided as follows: “Against any person required to take out a license, who fails or refuses to take out such a license, or who carries on business without such license, suit may be brought .... for the recovery of said license tax,” etc. This ordinance was enacted by authority of subdivision 27 of section 25 of the county government act of 1893 (Stats. 1893, p. 358), which gives to boards of supervisors power “to license, for purposes of regulation and revenue, all and every kinds of business not prohibited by law,” etc.; “to fix the rates of license tax upon the same.” A similar ordinance was the subject of construction in Merced Co. v. Helm, 102 Cal. 159, 36 Pac. 399, and so also was the extent of the authority given by the county government act of 1891 (the same as that of 1893) to pass the ordinance clearly defined. It was held in that case that the right to impose a tax upon a “business” will not authorize imposing a tax upon the individual acts connected with such business; and that a license tax required for one business cannot be demanded for any act or business not. specified in the ordinance providing for such taxes. The distinction between a single act (such as selling liquors), and the business in which the act is done (such as being engaged in the business of selling liquor) was pointed out, and the adjudged cases cited; and it was clearly shown that the ordinance did not purport to impose a tax for carrying on the business, but was for the sale, and applied to each sale before it was made, fixing a liability for the full amount of the tax for a single sale.

There is no brief on file for the respondent, and we have no intimation as to what its reply is to the claim of appellant based upon the Merced County case, supra, except as it is found in the opinion of the learned trial judge, which appears in the transcript, given on overruling appellant’s demurrer.