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lished. Washburn on Easements (4th Ed.)

(149 Cal. 758) 156; 14 Cyc. 1147; Kripp v. Curtis, 71 Cal. PLUMAS COUNTY V. WIIEGLER et al.

. 66, 11 Pac. 879; Franz v. Mendonca, 131 Cal,

(Sac. 1,361.) 209, 63 Pac. 361. "A presumption that the (Supreme Court o, California. Oct. 1, 1906. use was under a claim of right and adverse

Rehearing Denied Oct. 31, 1906.) arises from an undisputed use of an ease 1. LICENSES--TAXATION FOR REVENUE-POWER ment for the established period of prescrip

or COLXTY-STATUTES.

Under Const, art. 11, $ 11, providing that tion; and the burden is upon the party al

any county may make and enforce within its leging that the use has been by virtue of a li limits all such local, police, sanitary, and other cense or permission to prove that fact by regulations as are not in conflict with General affirmative evidence.

Where an

Laws, and Pol. Code, ş 3366, declaring that

boards of supervisors shall, in the exercise of open and uninterrupted use of an easement

their police powers, and for the purpose of regufor a sufficient length of time to create the lation, and not otherwise, have power to license presumption of a grant is shown, if the other

all and every kind of business not prohibite

by law, etc., boards of supervisors are precluded party relies on the fact that these acts or

from issuing business licenses for revenue, as any part of them were permissive, it is in previonsly authorized by county government act cumbent on such party, by sufficient proof,

(St. 1897, p. 465, c. 277, § 27, subd. 25). to rebut such presumption on a non-appear

[Ed. Yote.--For cases in point, see Cent. Dig.

rol. 32. Licenses, $ 6.] ing grant; otherwise the presumption stands

2. CoysTITUTIONAL LAW POLICE POWER as sufficient proof, and establishes the right."

SCOPc. Jones on Easements, § 186.

It is within the legislative discretion to It is claimed that the testimony of the de

place such restrictions on the use of any propfendants, and of Casey in their behalf, satis

erty or the conduct of any business as may be

reasonably necessary for the protection of the factorily explains this use, and conclusively

public safety, comfort, or health. shows that it was by permission, and there [Ed. Yote.-For cases in point, see Cent. Dig. fore not adverse; but this testimony as to vol. 10, Constitutional Law, $ 148.] permission, though not directly contradicted, 3. LICENSES -- REGULATION OF BUSINESS was, in its most important part, inherently

FEES.

The power to regulate a business may be improbable, or at least it might reasonably

exercised by means of a license fee or charge, have been so considered by the court below. the amount of which is not greater than is reaIt was, to some extent, equivocal in the use sonably necessary to pay for such regulation. of terms. The defendants themselves were

[Ed. Xote.--For cases in point, see Cent. Dig. interested witnesses, and their testimony was

vol. 32, Licenses, $ 15.] contradictory to each other and of that of

4. SAME-SHEEP RAISING.

A county authorized to regulate every kind Casey in important details. Casey's testi

of business passed an ordinance for the regulamony was, to some extent, impeaclied by tion of sheep raising within the county, prohibitproof of inconsistent statements and con

ing the bringing of sheep or lambs within the duct, and he appears to have been somewhat

county infected with certain diseases, and the

grazing of sheep or lambs on public roads or interested in favor of the defendants. Some trails, the dipping thereof near public highways parts of his testimony slightly corroborated or buildings, and requiring that every sheep the plaintiff's case, as also do parts of the

herder should procure ? license and pay a li

cense fee of 10 cents for each sheep or lamb testimony of the defendants. Where a hos owned by or under his control. Hcld, that the tile witness uses expressions favorable to license fee was not so excessive that it could be the side he opposes, a court may properly

said, as a matter of law, that the ordinance attach more importancce thereto than to the

was a revenue measure, but that whether it was

so or not, should be determined from the conmain purport of his narrative. The com ditions existing in the particular county when bined effect of all these circumstances may

the ordinance was passed. have so impaired the credit of these wit

3. SAME.

Under Pol. Code, § 3366, restricting the linesses in the mind of the court below that

censing power of county supervisors to licensing it may have disbelieved them entirely, or for regulation, in the exercise of their police regarded only those parts of their testimony powers, and authorizing them to fix rates of liwhich were favorable to the plaintiff. Upon

cense tax, and providing for the collection there

of by suit or otherwise, the fact that an ordithis ground it may have considered their

nance imposing a license tax on sheep grazing attempted explanation of the character of authorized a suit by the county to recover the the use of the way as unreliable, unsatis

license fee did not indicate that the tax was exfactory, and insufficient to prove permissive

acted for revenue.

0. SAME-STATUTES. use. In view of the findings, we are bound A county ordinance regulating sheep grazto presume that it did so consider it. Its | ing, and imposing a license tax thereon “is a conclusions as to the credibility of the testi

law of this state" within Pen. Code, 435, pro

viding that every person commencing or carrymony in this respect cannot, under the cir

ing on any business for which a license is recumstances stated, be overturned or changed quired by any "law of this state," without takby the Supreme Court. Anglo-California

ing out or procuring the license prescribed, is Bank v. Cerf, 147 Cal. 396, 81 Pac. 1081.

guilty of a misdemeanor.

7. SAME-P'EXALTIES--COUNTY ORDINANCESThe order denying the defendants' motion

GENERAL LAW. for a new trial is affirmed.

Under Pen. Code, § 435, providing that every person who commences or carries on any

business for which a license is required by any We concur: ANGELLOTTI, J.; SLOSS, J. law of the state, without procuring such license,

shall be guilty of a misdemeanor, a county ordi the ordinance (except section 13, which will nance regulating sheep raising, and imposing a

be referred to hereafter) provide for the collicense on such business, was sufficient to prohibit the doing of such business without a license

lection of the license fee, section 16 declar and to attach a penalty thereto, though the ing that the license fee or charge is a debt ordinance in itself provided no punishment there- | owing to the county, and shall become due for.

and payable to the county in advance. SecIn Bank. Appeal from Superior Court, ,

tion 11 authorizes the district attorney to Plumas County; J. E. Prewett, Judge.

bring suit, in the name of the county, to Action by Plumas county against D. C.

recover license fees due. Wheeler and others. From a judgment in fa The complaint alleges that the defendants, vor of defendants, plaintiff appeals. Re between May 1, 1902, and June 19, 1902, were versed.

engaged in the business of raising, grazing,

herding and pasturing sheep and lambs in U. S. Webb, Atty. Gen., and L. N. Peter,

the county of Plumas, that during that time Dist. Atty., for appellant. Cheney & Massey

they owned and possessed in said county (Campbell, Metson & Campbell, of counsel),

13,000 sheep and lambs, and that they have for respondents.

failed and refused to take out a license or to

pay any license fee. If the ordinance in SLOSS, J. This is an appeal from a judg.

a . question is a valid exercise of the legislative ment in favor of the defendants, entered up- power of the county, the complaint states a on the plaintiff's failure to amend its com cause of action. And, on the record before plaint after a general demurrer thereto had us, consisting simply of the complaint and been sustained. The action was brought by the demurrer, the validity of the ordinance the county of Plumas to recover the sum of must be determined from an inspection of its $1,300, alleged to be due it from defendants provisions alone, read in the light of facts as a license fee for conducting the business within the judicial knowledge of the court. of raising, grazing, herding and pasturing Unless, so read, it appears that the ordinance sheep and lambs within the county. The is invalid on its face, the order sustaining the plaintiff's claim is based upon an ordinance demurrer cannot be upheld. Under the state adopted by the county supervisors, in Jan Constitution (article 11, § 11) "any county uary, 1902, and set forth in full in the com * * *

may make and enforce within plaint. The enactment is entitled “An or its limits all such local, police, sanitary and dinance regulating the business of raising, other regulations as are not in conflict with grazing, herding, and pasturing sheep and general laws.” Section 3366 of the Political lambs in the county of Plumas, state of Code, enacted in 1901, provides that "boards California." Section 1 requires persons en of supervisors of the counties of the state gaging in the described business in the coun

shall, in the exercise of their police ty to present annually to the license collector powers, and for the purpose of regulation, an affidavit showing the number of sheep as herein provided, and not otherwise, have or lambs owned or controlled by them in the power to license all and every kind of busicounty, and whether such sheep or lambs are ness not prohibited by law, and transacted infected with contagious disease. Section 2 and carried on within the limits of their reprohibits the bringing into the county of spective jurisdictions * * * to fix

the sheep or lambs infected with certain diseases. rates of license tax upon the same, and to Sections 3, 4, 5. 6, and 7 make certain provi provide for the collection of the same by suit sions regulating the conduct of said busi or otherwise." The effect of this statutory ness. In a general way, it is sufficient to provision was to cut off the power, theretosay that provision is made against the camp fore residing in boards of supervisors under ing or grazing of sheep or lambs on public the county government act (section 25, subd. roads or trails, against dipping near public 25, St. 1897, p. 465, c. 277) to'collect a license highways or buildings, and against such acts tax for revenue. "The words 'not otherwise as would cause injury to the roads or trails curtail and cut off all power boards of superof the county or delay and inconvenience to visors theretofore had to issue licenses and travelers. Section 8 makes a violation of any charge therefor as a revenue measure. of the preceding sections a misdemeanor.

Indeed, it may be said that every Section 9, which provides for the license here feature of this act of 1901 indicates a plain sought to be collected, reads as follows: "Sec purpose upon the part of the Legislature to tion 9. Every person, firm or corporation en restrict the licensing power of boards of gaging in said Plumas county in the business supervisors and city councils to matters of of raising, grazing, herding, or pasturing sheep regulation alone.” Ex parte Pfirrmann, 13+ or lambs must annually, at the time of the Cal. 143, 66 Pac. 205. commencement of said business, procure a li Can the ordinance now before us be suscense therefor from the license collector of tained as a valid exercise of the power of said county, and must pay for said license, the county to regulate the business of raisthe license fee or charge of ten cents for each ing, herding, grazing and pasturing sheep ? sheep or lamb owned by, in the possession The principles affecting the right of legisof, or under the control of such person, firm lative bodies in the exercise of what is known or corporation.” The remaining sections of as the “police power," to place restrictions

upon the conduct of lawful pursuits and legislative body in determining the amount of occupations, are well settled, although there license fee that may, for purposes of regulais often great difficulty in applying these tion, be imposed upon any business, are principles to a given state of facts. It is stated in two recent decisions of the United within the legislative discretion to place such States Supreme Court. Both were cases inrestrictions upon the use of any property or volving the validity of ordinances imposing the conduct of any business as may be rea license charges upon telegraph poles and sonably necessary for the public safety, com wires. Western Union Telegraph Co. v. New fort or health. "The police power, the pow Hope, 187 U. S. 419, 23 Sup. Ct. 204, 47 L. er to make laws to secure the comfort, con Ed. 240, was an action by the borough of venience, peace, and health of the communjay, New Hope to recover from the telegraph comis an extensive one, and in its exercise a pany a license fee of $1 per pole and $2.50 very wide discretion as to what is needful per mile of wire on the poles and wires mainor proper for the purpose is necessarily com tained by the defendant within its limits. mitted to the legislative body in which the The defendant contended that the requirepower to make such laws is vested." Ex ment of the fee amounted to a regulation of parte Whitwell, 98 Cal. 73, 32 Pac. 870, 19 interstate commerce. Judgment for the plainL. R. A. 727, 35 Am. St. Rep. 152. Rights tiff upon the verdict of a jury was affirmed, of property, like all other social and con the court quoting with approval the followventional rights, are subject to such rea ing language of the Supreme Court of Pennsonable limitations in their enjoyment as sylvania in Taylor v. Postal Tel: Cable Co., shall prevent them from being injurious, 202 Pa. 583, 52 Atl. 128: "Clearly the reaand to such reasonable restraints and reg sonableness of the fee is not to be measured ulations established by law, as the Leg- | by the value of the poles and wires or of the islature, under the governing and controlo | land occupied, nor by the profits of the busiling power vested in them by the Constitu

ness.

The elements which enter into the tion, may think necessary and expedient.” | charge are the necessary or probable expense Commonwealth v. Alger, 7 Cush. 53. "The incident to the issuance of the license and most proper business may be regulated to the probable expense of such inspection, regprevent its becoming offensive to the publiculation, and police surveillance as municipal sense of decency, or for any other reason authorities may lawfully give to the erection injurious or dangerous.” Cooley, Const. Lim. and maintenance of the poles and wires. (6th Ed.) 753. The manner and extent of * * Whether or not the fee is so obvisuch regulation are primarily legislative ques- ously excessive as to lead irresistibly to the tions, and the courts will not interfere unless conclusion that it is exacted as a return for it clearly appears that the Legislature has, the use of the streets, or is imposed for under the guise of regulation, imposed an ar revenue purposes, is a question for the courts bitrary or unreasonable burden upon the use and is to be determined upon a view of the of property or the pursuit of an occupation. facts." In Atlantic & Pac. Tel. Co. v. PhilaBut the legislative determination is not con delphia, 190 U. S. 160, 23 Sup. Ct. 817, 47 L. clusive. As this court said, in Re Smith, 143 Ed. 995, action had been brought on a simiCal. 368, 77 Pac. 180: "The law will not lar ordinance. In holding that the reason allow the rights of property or business to be ableness of the charge was a question of invaded under the guise of police regula. fact upon which the parties were entitled to tion for the benefit of the public health or the finding of a jury, the court states the good order, when it is manifest that such rule in the language of Mr. Justice Shiras is not the objecť or purpose of the enactment in a similar case in the Circuit Court of or by-law." "The question in each case,” Appeals (Philadelphia v. Western U. Tel. Co., says the Supreme Court of the United States, 89 Fed. 454, 32 C. C. A. 246), i. e. “When it “is whether the Legislature has adopted the is said, in some of the cases, that such a statute in exercise of a reasonable discretion, question is for the determination of the or whether its action be a mere excuse for court, it is not meant that the question may an unjust discrimination, or the oppression, not properly be submitted to a jury. What or spoliation of a particular class.” Holden is meant by such observations is that courts v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 are not precluded from considering the reaL. Ed. 780. It is also well settled that the sonableness of the legislative act prescribpower to regulate a business may be exer ing the terms and amount of the charges. cised by means of a license fee or charge.

• Regarding, then, the issue to be The amount of the license fee, however, must tried as one of fact, we think it is one which, not be more than is reasonably necessary from its nature, is eminently fit for the de for the purpose sought, i. e., the regulation of termination of a jury. The expenses atthe business. If it is so great that the court tending direct regulation and oversight are can plainly see that the purpose of its impo not only to be considered, but also the incisition was to realize a revenue under the dental cost to which the municipality is subguise of regulating the business, the provision jected in providing for and maintaining a for the fee cannot stand as an exercise of proper system of supervision. We cannot un. the police power. The elements that may dertake to specify all the particulars whicb properly be taken into consideration by the should be brought into view where the rea.

sonableness of a municipal ordinance is chal the duty of the peace officers in the various lenged in a court; but we think that the townships to cause the ordinance to be enrule laid down in Cooley, Const. Lim. (Ed. forced and to report all violations thereof, 1886) p. 242, may be safely adopted : 'A mu and claims for services rendered or expenses nicipal corporation may impose, under the incurred in performing these duties are police power, such a charge for the license as claims against the county. Section 13. will cover the necessary expenses of issuing What expense the county will be put to in it, and the additional labor of officers and the enforcement of the ordinance cannot be other expenses, thereby incurred.'” It is not determined from an inspection of the ordito be understood from these citations that

nance itself. It is a question of fact, the the costs to the municipality which may be decision of which will depend upon the considered are simply those which arise di evidence to be introduced at a trial. If it rectly in the enforcement of the regulatory should appear that all the items of expense provisions themselves. The license fee may which could reasonably be anticipatel-inproperly be fixed with a view to reimbursing cluding not only the cost of issuing the lithe city, town or county for all expense im cense but every other expense arising from posed upon it by the business sought to be

the proper supervision or control of the busiregulated. “In fixing upon the fee, it is ness-would amount to less than ten cents proper and reasonable to take into account

per sheep (or lamb) the ordinance could not not the expense merely of direct regulation, be sustained as a regulatory measure. If, but all the incidental consequences that may on the other hand, it should appear from the be likely to subject the public to cost in con facts shown that the reasonably anticipated sequence of the business licensed." Cooley

expenses would equal or exceed the fee on Taxation, p. 599. Thus, in Philadelphia exacted, the ordinance must be held valid. v. W. U. Tel. Co., 89 Fed. 460, 32 C. C. A. 216 Which of these two states of facts existed in which the rule was stated in language in Plumas county at the time of the adoption which has had the approval of the United of the ordinance, this court cannot say. The States Supreme Court, it was held to be

expense to which the county would be put, error, in a case involving the reasonableness

or could reasonably expect to be put, by the of a charge for maintaining telegraph poles herding, grazing, raising, and pasturing of and wires, to exclude evidence tending to

sheep within its borders depends upon a show that the city was, by reason of the variety of circumstances of which we do not wires, put to additional expense in provid have judicial knowledge. To arrive at the ing a greater number of fire companies and

amount of such expense it would be necesapparatus.

sary to consider the topographical conditions Applying these rules to the ordinance be

of the county, the extent of the industry as fore us, can it be said that the charge of 10 practised there, the effect of the industry on (ents per head of sheep and lambs is so the roads, trails and other public property clearly excessive, so grossly disproportionate of the county, the probable cost of prosecuto the expense incurred by the county by rea tions for violations of the ordinance, and son of this business, that the enactment is

any other matters having a reasonable tenvoid upon its face? It is to be remembered dency to indicate the cost to which the counthat the presumption is in favor of the rea ty would be subjected by the business sought sonableness of the charge, and that the coun to be regulated. From these elements there ty is not limited to the exact amount of the could be a determination of the ultimate expense, as it may subsequently develop. question of the reasonableness of the charge. "The municipality is at liberty to make the And this ultimate question must be determincharge large enough to cover any reasonable ed by a jury (or by the court, if a jury be anticipated expenses." A. & P. Tel. Co. v. waived) which has before it the facts from Philadelphia, supra. The herding, pasturing, which a conclusion can be drawn. In the aband raising of sheep is undoubtedly a lawful," sence of any such facts, we cannot say that indeed a necessary, vocation. But there can the charge here imposed is unreasonable. be no question that it, in common with the We do not intend to hold that there may keeping of other kinds of livestock, is an not be ordinances imposing license fees so occupation which may properly be subjected large that they appear, upon a mere reading. : to reasonable restrictions for the purpose to go beyond any reasonable limits allowed of preventing or lessening the annoyance or under the rules of law which have been disdiscomfort which, if unrestrained, it would cussed. But we think a fee of 10 cents per he likely to cause. Tiedeman, State & Fed head on sheep and lambs does not come witheral Control, p. 838; Sifers v. Johnson (Ida in this category. ho) 65 Pac. 709, 51 L. R. A. 785. The first Much stress is laid upon the fact, which eight sections of the ordļinance under ex appears from decisions of this court in amination indicate the nature of some of earlier cases (Ex parte Mirande, 73 Cal. the objectionable features of this business. 365, 14 Pac. 888; El Dorado v. Meiss, 100 Certain acts are prohibited, and the violation Cal. 268, 34 Pac. 716; Inyo County v. Erro, of these acts is made a misdemeanor. As 119 Cal. 119, 51 Pac. 32; Mono County v. bearing upon the expense to which the coun- | Flanigan, 130 Cal. 105, 62 Pac. 293) that, ty may be subjected, we note that it is made even when counties had the power to license

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for revenue, a tax of only five cents per the adoption of that section repealed the
head was inaposed by various counties. But tax in each case, and that the right of action
this is not conclusive. The conditions in to recover the tax fell with the tax. But
the counties which fixed those taxes may it was not held that a charge which a county
have been entirely different from the con or city is authorized to impose under Pol.
ditions existing in Plumas county. "What is Code, $ 3306, cannot be collected by Civil
reasonable in one municipality may be op suit.
pressive and unreasonable in another." At The point is made that the provision re-
lantic & Pacific Telegraph Co. v. Phila quiring the payment of a license fee cannot
delphia, supra. And that the reasonableness be regarded as a regulation, inasmuch as
of such a license fee is peculiarly a question the ordinance does not "forbid the carrying
of fact to be determined upon the conditions ; on of the business mentioned unless a li-
that may be shown to exist in the particular cense be procured.” If such prohibition be
governmental subdivision imposing the fee an essential element of a regulatory license
is well illustrated by the two cases of West-

fee, it is supplied by the provisions of Penal ern Union Tel, Co. v. New Ilope and Atlantic Code, $13.), to wit, "Every person who & Pacific Tel Co. 5. Philadelphia, supra, commences or carries on any business, trade. both decided by the Supreme Court of the

profession, or calling, for the transaction or United States during the same year. Eachi carrying on of which a license is required case involved the validity (as a measure of by any law of this state, without taking out regulation) of an ordinance imposing a li or procuring the license prescribed by such cense fee on the maintenance of telegraph law, is guilty of a misdemeanor.” county poles and wires. The amount of the charge ordinance is a "law of this state" within was the same in both cases. In the New

the meaning of this section. In re Lawrence, Ilope Case the question of reasonableness 69 Cal. 608, 11 Pac. 217. An ordinance prowas submitted to a jury, which found in viding no punishment for doing business favor of the tax. The judgment was affirm without a license, but merely providing what ed. In the Philadelphia Case the court took

the license should be, is therefore, when read the question from the jury, and directed a in connection with the Penal Code, suificient verdict upholding the tax. The judgment to prohibit the doing of such business, and was reversed, the court holding that the ques to attach a penalty to the commission of the tion was one of fact which should have gone prohibited act. Ex parte Christensen, 85 Cal. to the jury.

210, 24 Pac. 767. See, also, In re Sic, In the case at bar we are not aware of Cal. 148, 14 Pac. 405; Ex parte Mansfield any facts from which we can say, as matter 106 Cal. 100, 39 Pac. 773; Ex parte Stephen, of law, that the license fee imposed is nec 114 Cal. 282. 16 Pac. 86. Various other essarily, under all circumstances and in every points are made by the respondents, but, in locality, unreasonable or excessive. It may our judgment, they are all reducible to, or be unreasonable and excessive, in view of the

are based upon, the proposition that the conditions existing in Plumas county. If ordinance in question is necessarily to be it is, the defendants may so allege, and if regarded

as

a revenue measure. These they prove their allegations they will be un points are therefore sufficiently answered by der no liability. But, in view of the purpose what has already been said in this opinion of the ordinance, as declared in its. title, regarding the character of the enactinent. and the presumption of validity attending The judginent is reversed. such enactments, it should not be held that the ordinance is, on its face, a revenue meas

We concur: BEATTY, C. J.; SIIAW, J.; ure disguised as a provision for regulation. ANGELLOTTI, J. We see no force in the contention that the provision in the ordinance authorizing a

We dissent: HEXSIIAW, J.; MCFARsuit by the county to recover the amount of

LAXI, J.
the license fee indicates that the tax is ex-
acted for revenue, rather than as an exercise
of the police rower. Pol. Code, § 3360,

119 Cal. 76:!! which restricts the licensing power of the SIERRA COUNTY V. FLAVIGAN. (Sac. county supervisors to licensing for regula

1,303.) tion, in the exercise of their police powers,

(Supreme Court of California. Oct. 1, 1901. expressly authorizes them to fix the rates

Rehearing Denied Oct. 31, 1906.)
of license tax, and "to provide for the col-
lection of the same by suit or otherwise."

In Bank. Appeal from Superior Court,
Sonora v. Curtin, 137 Cal. 583, 70 Pac. 67-4,

Sierra County; Stanley A. Smith, Judge. and Santa Monica v. Guidinger, 137 Cal. 658,

Action by Sierra county against P. L. 70 Pac. 732, decide nothing inconsistent with

Flanigan. From a judgment for plaintiff, this view. Those were cases of ordinances

defendant appeals. Aflirmed. imposing license fees for revenue and pro Campbell, Metson & Campbell, A. E. Chenviding for the collection of the fees by suit. ey and Thomas H. Breeze, for appellant. The ordinances were passed prior to the en Frank R. Wehe, W. I. Redding, and Solinactment of section 3366. It was held that sky & Wehe, for respondent.

87 P.-58

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