Mann's Jewelers v. City of San Diego

BARNARD, P. J. This is an appeal from a judgment in declaratory relief upholding the validity of Ordinance Number 6665 of the city of San Diego. This ordinance amends the auction sale ordinance, which is a part of the Municipal Code, by changing the definition of an “auction sale” in several respects. So far as material here this amendment provides: “The term auction sale or sale by public auction . . . shall mean a sale of property by public outcry addressed collectively to a group of three or more persons assembled for the purpose of conducting sales of property.” Another section of the amending ordinance made a similar change in defining the word ‘ ‘ auctioneer. ’ ’

The complaint alleged that the plaintiff operates a jewelry store on Broadway in San Diego; that it has conducted and intends to conduct sales in the manner described; that the above quoted provision of the ordinance is unconstitutional in that it deprives the plaintiff of its property without due process of law, and illegally attempts to regulate the manner in which plaintiff conducts its business; and that it deprives the plaintiff of a method of operating its business by decreeing that the type of sale used by the plaintiff is an auction sale, which it is not. It is further alleged: “that the method of operation by this plaintiff is through a device commonly known and designated as an ‘Action Sale’; that the nature of such sale is that merchandise is displayed by a salesman who fixes a price on the merchandise and requests anyone present in the store to buy the merchandise at said price; that [580]said sale does not constitute an auction sale in that no bids are called upon from the customers and that title remains in plaintiff to the merchandise until an offer is made to purchase the merchandise at the price fixed by plaintiff’s agents”; and that an actual controversy exists between the parties as to plaintiff’s rights and duties under the ordinance. The prayer was for a declaration of plaintiff’s rights under the ordinance; that it be decreed “that said ordinances do not affect the operation of an action sale as conducted by plaintiff”; that the challenged portion of the ordinance be declared unconstitutional; and that the defendant be enjoined and restrained from attempting to enforce the challenged portions of the ordinances.

At the trial the cause was submitted on a stipulated statement of facts, including the following:

“6. That plaintiff’s method of operation is as follows: That a podium is built behind the counters of the store whereby a salesman is elevated above the counters and addresses the people who come into the store with the aid of a sound amplifier. That the salesman displays the item to be sold, describes the item and indicates the price for which he will sell said item. That no other items are added to any particular item nor is the price at which an item is offered for sale changed on any business day. There is no grouping of items and unless the specific item that is offered for sale is sold at the price indicated by the salesmen, the item is laid aside and another item is displayed and the same procedure is followed. That in all instances three or more persons are assembled for the purpose of attending the sale.”