Searles v. Municipal Court

BISHOP, J. pro tem.* The petitioner, charged with a misdemeanor in that he had operated a number of stamp vending machines without the license that a city ordinance required, first demurred and moved to dismiss, without success, and then filed this petition for an alternative writ of prohibition, leading to a peremptory writ. He made the municipal court in which he was being prosecuted a respondent, and named the People of the State of California, by their [677]attorney Evelle J. Younger, District Attorney for the County of Los Angeles, as the real party in interest. When the court granted petitioner's prayer for the peremptory writ, the real party in interest appealed. We are reversing the order.

The real issue on this appeal is whether the order was required by the Supreme Court’s decision in the Matter of the Application of Ralph M. Richardson (1915) 170 Cal. 68 [148 P. 213]. There, the petitioner for a writ of habeas corpus had been convicted, and was in custody, on a charge of having operated a match machine with a niekel-in-the-slot attachment, without first having procured a license from the tax collector, as required by an ordinance “imposing a license on nickel-in-the-slot machines.” The conclusion reached was that an offense had not been created, because there was no legal justification for taxing one mode of carrying on a legitimate business when all other modes were left tax free. It will suffice to quote just these portions of the court’s opinion: (p. 72) “ [T]he tax imposed by section 2 of the ordinance is imposed solely on such vendors of small articles of merchandise as use such a machine in making their sales and deliveries as is described therein. The vendor who sells and delivers the same articles through the medium of a clerk, salesman, or other human agency is not required to pay any license-tax. Indeed, in view of the provisions of the San Francisco charter, no license-tax can be imposed upon any person who ‘at any fixed place of business in the city and county, sells . . . goods, wares, or merchandise,’ . . . [with a few exceptions, such as liquor dealers].” Quoting again: “If he uses such a machine, or machines, for that purpose, he must pay a license-tax of two dollars per annum. ... If he sells and delivers the very same merchandise in any other manner, he is not required to pay any license-tax at all. ’ ’

The ground on which the petitioner in the Richardson case escaped having to pay his $5.00 fine or be imprisoned one day, is not available to the petitioner in our ease. Sure, he can point to a number of business concerns who are using stamp vending machines such as his and paying no license tax specifically for so doing. The reason for their escape, however, is that they are licensed and paying a tax for carrying on a business in which their stamp machine is one means of doing business, but not the sole means. The ordinance that sets the license fee that the petitioner did not pay and would escape paying, calls for licenses, obtainable on a number of endeavors, which may include, without special mention, his single,