Hennigan, In re

• Decision Date: 31 July 1956
• Docket Number: Cr. 5912
• Citation: 300 P.2d 7,46 Cal.2d 856
• Court: California Supreme Court
• Parties: In re J David HENNIGAN, on Behalf of Lynn GRITTON and Harce R. Bainbridge, on Habeas Corpus.

Page 7

300 P.2d 7

46 Cal.2d 856

In re J David HENNIGAN, on Behalf of Lynn GRITTON and Harce R. Bainbridge, on Habeas Corpus.

Cr. 5912.

Supreme Court of California.

July 31, 1956.

J. David Hennigan, Riverside, Joseph Shane, Ernest Silver, Los Angeles, and Hennigan & Ryneal, Riverside, for petitioners.

William O. Mackey, Dist. Atty., and Le Moyne S. Badger, Deputy Dist. Atty., Riverside, for respondent.

SHENK, Justice.

In this habeas corpus proceeding the petitioners, Lynn Gritton and Harce R. Bainbridge, seek their release from the custody of the sheriff of Riverside County. Together with one Watkins they were charged with violating Ordinance No. 393 of that couunty. They were convicted on a second trial by jury in the Municipal Court of the Riverside Judicial District. Each of the petitioners was granted probation on the condition that he pay a fine of $500 and serve six months in the county jail, all but thirty days of which was suspended. The judgments of conviction were affirmed without opinion by the Appellate Department of the Superior Court in and for the County of Riverside.

At the time of the alleged violations the pertinent provisions of Ordinance No. 393 read as follows:

'* * * No person, firm or corporation shall relocate on or move onto any premises, or permit to be relocated on or moved onto any premises owned by him, any building or structure or substantial portion thereof, which is designed for use or is intended to be used for human occupancy as a dwelling or place of business, without a relocation permit therefor having first been applied for and obtained from the Chief Building Inspector.

'* * * The fee for filing an application for a permit to move a building within or into the County of Riverside is $20.00; * * * If the application is approved, an additional fee of $10.00 shall be paid prior to the issuance of the relocation permit.

'* * * Permits for * * * buildings (moved onto premises which are not subject to the provisions of the county building code) shall be issued upon application and payment of the required fee.'

Petitioner Gritton, allegedly acting as the agent of petitioner Bainbridge, purchased 50 'G.I.' houses located in the City of Oceanside in San Diego County. Gritton knew of Ordinance No. 393 and consulted with the Riverside County Building Department regarding the issuance of permits to move the houses into Riverside County. The record indicates that the Building Department at all times knew that the petitioners contemplated moving approximately 50 houses. The ordinance required one permit costing $30 for each building moved, or a total payment of $1,500 for permits for the 50 houses. On December 27, 1954, Gritton purchased three permits. By February 1, 1955, Bainbridge had moved 30 to 35 houses onto Watkins' land in Riverside County without purchasing additional permits. On February 8, 1955, Gritton took out three additional permits and was told by the Building Department that he would have to secure still more. On February 28, 1955, the complaint against them was filed. On March 24, 1955, after all 50 houses had been moved onto Watkins' land, Bainbridge accompanied by Gritton purchased 44 additional permits.

At the trial the petitioners asserted as a defense that they had assurances from the Building Department that they could obtain the permits after the houses were moved, despite the requirement in the ordinance that the permits be obtained first. They now contend that the trial court committed numerous errors in admitting evidence. On appeal to the appellate department of the superior court the judgment was affirmed.

The main contention of the petitioners in the present proceeding is that Ordinance No. 393 as amended at the time of the alleged violations was constitutionally unenforceable as to them. It is not disputed that section 12 of article 11 of the Constitution and section 16100 of the Business and Professions Code prohibit a non-charter county such as Riverside County from requiring the purchase of a business license for the purpose of raising revenue. 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. See Wheeler v. Plumas County, 149 Cal. 782, 87 P. 802; Ex parte Pfirrmann, 134 Cal. 143, 66 P. 205; Hill v. City of Eureka, 35 Cal.App.2d 154, 94 P.2d 1025; In re Bock, 125 Cal.App. 375, 13 P.2d 836; In re McCoy, 10 Cal.App. 116, 101 P. 419. However, a non-charter 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. Bus. & Prof.Code, § 16100; County of Plumas v. Wheeler, 149 Cal. 758, 87 P. 909. The petitioners contend that the enforcement of Ordinance No. 393 as applied to them is to finance the general activities of the county by taxation and not to regulate or finance the regulation of relocation of buildings.

Ordinance No. 393 is entitled 'An Ordinance of the County of Riverside to Regulate the Moving of Houses and Other Buildings Onto Land in Unincorporated Territory.' As originally enacted on July 29, 1952, the ordinance contained many and seemingly complete regulatory provisions applicable throughout the county to buildings such as those moved by the petitioners. However, on May 6, 1953, approximately 21 months before the alleged violations took place, Ordinance No. 393B became effective. That ordinance amended the original...