[Crim. No. 591.

Second Appellate District.

March 29, 1918.]

#### In the Matter of the Application of GEORGE HART for a Writ of Habeas Corpus.

Municipal Corporations — Business License Ordinance — Establishments Outside City Limits—Discriminatory Regulation.— A city ordinance requiring the payment of a license fee of twelve dollars per annum by every person selling or contracting to sell merchandise, whose establishment is within the boundaries of the city, and the payment of a license fee of sixty dollars per annum by every person selling or contracting to sell merchandise, whose establishment is outside of the city limits, is discriminatory and void, as an attempted protective tariff for the benefit of businesses located in the city.

APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District.

The facts are stated in the opinion of the court.

Hutton, Fogel & Coffin, for Petitioner.

Charles W. Lyon, City Attorney, and Fredericks & Hanna, for Respondent.

WORKS, J., *pro*term.

The petitioner operates a mercantile business at an establishment within the city of Santa Monica and sells his commodities in the contiguous city of Venice, sales and deliveries being made by him after the manner which is employed by dealers in articles of the same character, which dealers have their places of business located within the limits of Venice. An ordinance of the last-named city provides for the licensing of certain businesses and contains a section to the following effect: “For every person . . . selling or contracting to sell articles” of various kinds, including the' commodities dealt in by the petitioner, “to persons not regularly engaged in carrying on such lines of business, whether by sample or otherwise, . . . not otherwise provided for herein, $60.00 per annum; provided that this shall not apply to persons having regularly licensed places of business, in the city of Venice, taking orders for or sell*628ing, goods handled hy them in their respective business.” The petitioner was arrested and is imprisoned for making sales within Venice, without having taken out the license required by the section, it being conceded that his case is “not otherwise provided for” in the ordinance. It appears that persons whose places of business are within the boundaries of Venice and who conduct establishments similar to that of the petitioner, pay a license fee of only twelve dollars per annum under the ordinance.

The petitioner contends that the ordinance unjustly discriminates against him, in that it requires from him a license fee of sixty dollars per year, while it exacts but twelve dollars per year from others similarly situated, except that his place of business is without, while theirs are within, the city of Venice. He points to section 21 of article I of the constitution of California, providing that no “citizen, or class of citizens,” shall “be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens”; and to the fourteenth amendment to the constitution of the United States, section 1, to the effect that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

Questions similar to the one now propounded to us have been before the courts of this state several times. The respondent claims that the ordinance now in question, so far as the provisions quoted from it are concerned, is constitutional under the decision in *Ex parte Haskell,*112 Cal. 412, [32 L. R. A. 527, 44 Pac. 725]. The ordinance involved in that case was an ordinance of the city of Chico and the person imprisoned pursuant to its terms was a traveling salesman for a concern in Oakland. It was insisted that he could be required, constitutionally, to pay a higher license than that exacted from merchants selling from a fixed place of business within the municipality. The supreme court upheld this view in the following language: “The very power to license for purposes of regulation and revenue involves the right to make distinctions between different trades and between essentially different methods of conducting the same general character of business or trade. And that is all that *629is done here. While it may be true, as suggested by petitioner, that Haskell is, in a sense, a merchant equally with those having a fixed place of business, it is nevertheless true that the manner in which he conducts and carries on his business is so distinct from that of the merchant of the latter class as to make it essentially a different business.”

The petitioner relies upon the *Matter of Hines,*33 Cal. App. 45, [164 Pac. 339]. In that case one who operated and maintained a laundry wagon was under imprisonment for a failure to take out a license under an ordinance of the city of Venice. He delivered laundry work in Venice from an establishment outside the corporate limits of the city, in the same manner that laundry work was delivered to the people of the city from laundries within its limits. A greater license fee was sought to be required from him for operating and maintaining his wagon than from those conducting laundry businesses within the city, for the conduct of such businesses. In, the opinion in the case we said: “We are of the opinion that the provisions of the ordinances under which petitioner has been convicted attempt to create and enforce a discrimination not based upon differences in the nature of the business being transacted or differences in the manner of conducting the same business, or any other difference other than the mere fact of difference in destination of the goods collected and delivered by wagons collecting for laundries located outside of the city and the destination of goods collected for delivery to laundries within the city. The license provisions in question are plainly devised as a protective tariff for the benefit of laundries located in the city of Venice or laundry wagons doing business with laundries located in the city of Venice, and apparently they have no other purpose.” We then declared the assailed provisions of the ordinance to be void. We are convinced that the provisions which are attacked, of the ordinance now before us, are also “devised as a protective tariff for the benefit” of businesses located in the city of Venice and that “apparently they have no other purpose.” Ordinance provisions having their origin in such a purpose cannot stand. This proceeding is ruled by the *Matter of Sims*and not by *Ex parte East veil.*

The petitioner is discharged from custody.

Conrey, P. J., and James, J., concurred.

*630A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 9, 1918. (See *In re Zany,*164 Cal. 724, [130 Pac. 710].)