Flanigan v. Sierra County

• Decision Date: 04 March 1903
• Docket Number: 832.
• Citation: 122 F. 24
• Parties: FLANIGAN v. SIERRA COUNTY.
• Court: U.S. Court of Appeals — Ninth Circuit

122 F. 24

FLANIGAN v. SIERRA COUNTY.

No. 832.

United States Court of Appeals, Ninth Circuit.

March 4, 1903

A. E Cheney and Campbell, Metson & Campbell, for plaintiff in error.

Frank R. Wehe, Dist. Atty. Sierra County, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This action was brought by the county of Sierra, in the state of California, to recover of and from the plaintiff in error herein a license tax of $2,500, it being alleged that said plaintiff was engaged in that county in the business of sheep raising without having first paid the license tax required by Ordinance No. 54, passed by the board of supervisors of Sierra County, May 31, 1900. This ordinance consists of 10 sections, which are set forth at length in the complaint. The first section reads as follows:

'Each and every person, copartnership, firm or corporation engaged in the business of raising, grazing, herding or pasturing sheep in the county of Sierra, state of California, must annually procure a license therefor from the license collector, and must pay therefor the sum of ten (10) cents for each sheep or lamb owned by, in the possession of, or under the control of such person copartnership, firm or corporation, and used in such business in said county.'

This ordinance went into effect June 15, 1900, and 10 days thereafter this action was brought. At the time this ordinance was enacted, the board of supervisors of each county of California was authorized, subject to the restrictions and limitations imposed by the Constitution and general laws, to license, for the purposes of regulation and revenue, all and every kind of business carried on in the county. St. Cal. 1897, p. 465, c. 277. On March 23, 1901, a new section was added to the Political Code of the state of California, to be known as section 3366, which repealed the authority of the board of supervisors to license for revenue. St. & Amend. to Codes Cal. 1901, p. 635, c. 209.

The averments in the complaint are sufficient to entitle the county to recover, provided the ordinance referred to is constitutional, in all respects valid, and of full force and effect so far as this case is concerned.

The defendant in the court below (plaintiff in error) interposed a demurrer to the complaint, on the general ground 'that said complaint does not state facts sufficient to constitute a cause of action. ' This demurrer was overruled 'with leave to defendant to answer within twenty days. ' No answer being filed, the court directed judgment to be entered in favor of the plaintiff as prayed for in the complaint. From this judgment, a writ of error is brought to this court to have the alleged errors therein corrected. There are five assignments of error, which counsel for plaintiff in error have conveniently grouped under three propositions, viz.: '(1) The ordinance in question is an unjust, discriminating, oppressive, and unconstitutional exercise of the power to license for the purposes of revenue.

'(2) By the repeal of the statute authorizing boards of supervisors 'to license for purpose of regulation and revenue,' and restricting their powers to license 'in the exercise of their police powers, and for the purposes of regulation as herein provided, and not otherwise,' without any saving clause in favor of pending suits or unpaid license taxes, the Legislature of the state destroyed the cause of action which it had authorized the board of supervisors to create, denied any remedy for its enforcement, and abated this action.

'(3) The ordinance is a revenue, not a regulation, measure. As an ordinance for purpose of regulation, it is illegal and void, because it does not regulate, and the fee charged is so unreasonable that the courts will, as a matter of law, declare that its real purpose is revenue, and not regulation, and therefore void as a pretended exercise of the police power.'

In the consideration of the various questions raised in this case, it must be remembered that, at the time of the passage of the ordinance herein involved, it was expressly authorized by the 'Act to establish a uniform system of county and township governments,' approved April 1, 1897. St. 1897, p. 465, c. 277, Sec. 25, subd. 25.

The validity of similar ordinances, where several constitutional and other objections were raised, has been frequently sustained by the Supreme Court of California. In re Guerrero, 69 Cal. 88, 91, 10 P. 261; Ex parte Mirande, 73 Cal. 365, 372, 14 P. 888; County of El Dorado v. Meiss, 100 Cal. 268, 34 P. 716; County of Inyo v. Erro, 119 Cal. 119, 51 P. 32; County of Los Angeles v. Eikenberry, 131 Cal. 461, 465, 466, 63 P. 766. These decisions are binding upon this court, and will be followed, regardless of the decisions upon similar questions in other states. Williams v. Gaylord, 42 C.C.A. 401, 102 F. 372, 374, and authorities there cited; Id., 186 U.S. 157, 167, 22 Sup.Ct. 798, 46 L.Ed. 1102.

It is, however, claimed that the case in hand presents other objections that were not considered or decided in the decisions above referred to. The statute of 1897, among other things, authorized the board of supervisors to pass ordinances '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 collection of the same, by suit or otherwise. ' In 1901 the Legislature passed 'An act to add a new section to the Political Code of the state of California, to be known as section 3366, relating to the powers of boards of supervisors, city councils, and town trustees, in their respective counties, cities and towns, and to impose a license tax,' approved March 23, 1901. St. & Amend. to Codes 1901, p. 635, c. 209.

Section 3366 reads as follows:

'Boards of supervisors of the counties of the state, and the legislative bodies of the incorporated cities and towns therein, shall, in the exercise of their police powers, and for the purpose of regulation, as herein provided, and not otherwise, have power to license all and every kind of business not prohibited by law, and transacted and carried on within the limits of their respective jurisdictions * * * to fix the rates of license tax upon the same, and to provide for the collection of the same by suit or otherwise.'

The Supreme Court of California has held that section 3366 repeals, by implication, the prior act of 1897, in so far as the same relates to the power to collect a license tax for revenue, thus restricting the licensing power of boards of supervisors, under the act of 1897, to matters of regulation alone. Ex parte Pfirrman, 134 Cal. 143, 147, 148, 66 P. 205; City of Sonora v. Curtin (Cal.) 70 P. 674; Town of Santa Monica v. Guidinger (Cal.) 70 P. 732.

What effect does this repealing act have upon the present action, which was brought under the provisions of the law of 1897, before it was repealed? Counsel for plaintiff in error contend that, inasmuch as the law under which the ordinance for revenue purposes was passed has been repealed, the ordinance is repealed as to all such purposes, and must be regarded as if it never existed, except for the purposes of those actions which were commenced, prosecuted, and concluded while it was an existing law, and rely upon the rule, announced in many authorities, that, where the right and remedy is given by statute to bring a civil action for the collection of a license tax, the repeal of the statute destroys the remedy, unless the repealing statute contains a saving clause. Spears v. County of Modoc, 101 Cal. 303, 35 P. 869; Anderson v. Byrnes, 122 Cal. 273, 54 P. 821; State Hospital v. Flaherty, 134 Cal. 315, 66 P. 322; Ball v. Tolman, 135 Cal. 375, 67 P. 339, 87 Am.St.Rep. 110; City of Sonora v. Curtin (Cal.) 70 P. 674; Sutherland St. Const. Secs. 162, 163, 166, and authorities there cited; Endlich on Int. of St. Secs. 478, 480. This principle has been applied more frequently to penal statutes, and it may be regarded as an established rule that the repeal of a penal statute, without any saving clause, has the effect to deprive the court in which any prosecution under the statute is pending of all power to proceed further in the matter, and in such cases the proceeding will be arrested at the very point where it is at the time of the repeal (Spears v. County of Modoc, supra), because 'the repeal of the law imposing the penalty is of itself a remission' (Maryland v. Railroad Co., 3 How. 534, 552, 11 L.Ed. 714, and authorities there cited).

The ordinance under discussion was adopted May 31, 1900. It went into effect 15 days thereafter. This action was commenced June 25, 1900. The amendment to the Code, section 3366, was approved March 23, 1901. The judgment in this case was entered March 7, 1902. Under these circumstances, does it necessarily follow that, because a saving clause was not inserted, the act of 1901 should be given a retrospective operation? Does this question not depend upon the circumstances and conditions of each particular act, its nature and character? In the present case the transaction between the parties, under the ordinance of 1900, was closed nothing was left to be done except to collect the license due, which was authorized by the law then in force. Upon the facts of this particular case, can it be said that it was the...