Cooper v. Michael

PIERCE, P. J. Plaintiff sued on a written contract alleging that defendant employed him as an auctioneer to sell farm machinery, then repudiated the contract and hired another. The trial court sustained a special demurrer to the complaint. The sole basis of the court’s order was that plaintiff did not have an auctioneer’s license under a Glenn County ordinance requiring one. The questions on appeal from the judgment following plaintiff’s refusal to amend arise from plaintiff’s contention that he did not have to comply with the ordinance because (1) it is solely a revenue measure adopted contrary to constitution and law, and (2) violation of the ordinance, even if it were valid, does not invalidate his contract. Since the first contention posited is sound, we do not reach the second.

“The general policy of the state is opposed to the raising of revenue by the collection of direct taxes as a condition precedent to the conduct of business. [Citations.] How[178]ever, a noncharter county may require a legitimate business to obtain a license if the county’s purpose is to regulate or to raise funds to be used in regulating the business. ’ ’ In re Gritton, 46 Cal.2d 856, 858-859 [300 P.2d 7].) Professor Sato has reached the conclusion, expressed with some doubts, that ease law indicates the California Constitution (art. XI, §§11 and 12) denies to counties—especially to noncharter counties1 —the power to levy occupational taxes for revenue-raising purposes—in the absence of legislation expressly granting such power. (Sho Sato, Municipal Occupation Taxes in California (1965), 53 Cal.L.Bev. 801, 806, 807.) We need not explore that proposition. Whatever may be the effect of the constitutional provisions mentioned themselves to prohibit revenue-raising ordinance, they authorize the Legislature to do so beyond doubt. The prohibition against such ordinances by noncharter counties is expressly contained in Business and Professions Code section 16100.2 It will be noted that a similar statutory prohibition does not extend to cities.

The ordinance involved here is Glenn County Ordinance 207. It declares itself in the title to be adopted “for police regulation” and, in section 1, to be an exercise of the county’s “police power and for the purpose of regulation.” However, it is to the purpose actually contemplated and not that professed to which we must look. (City of Los Angeles v. Lankershim (1911) 160 Cal. 800, 801 [118 P. 215] ; In re Johnson (1920) 47 Cal.App. 465, 466 [190 P. 852].)

By the terms of the ordinance persons operating businesses within the unincorporated portions of the county are made liable to pay specified license taxes. Some, like auctioneers and persons operating other businesses, both named and unnamed, are charged a fixed annual fee. (An auctioneer is charged $10 per year.) Others operating carnivals, circuses or engaged in theatrical performances, etc. are required to pay specified daily fees with annual maximum fees. Storage and other warehouses are taxed on a square inch basis. Fixed annual fees are not prorated, i.e., a full annual fee is exacted even though the business is in operation less than a year. To