The record-union., 1891-08-29
WHOLLY WITHOUT DEFENSE.
So Says Judge CatIin of the License
Contestants.
Tie Overrules the Demurrer of II. f.
Dillman in an Exhaustive Opin-
ion on the Subject.

Clinton l.. White on behalf Of the city in
suit for the collection of S45 retail liquor
license claimed under the ordinance now
III force. In making the order the court
filed long decision, covering every point
raised by the defense, in which he finds
for the city in each instance.
This is an action" says the court, ito
recover license money due from defend
ant under city ordinance No. 276, to wit:
The sum of $45 for the quarter in advance,
commencing July l, 1891.
Demurrer is interposed to the COM
plant, under which it is urged that the
ordinance is unconstitutional and void;
also, that the action cannot be maintained
In the name of the city, but should be
prosecuted, if at all, in the name of the
people; and in this connection it is urged
that the ordinance is police regulation,
and for that reason civil action cannot
be maintained to recover the amount of
the license fee.
1T is also urged that the ordinance is
void because it is alleged to be in conflict
with Subdivision of Section of the
city charter-in this, that it fixes an arbi-
trary sum to be paid by all alike, without
regard to the amount of the business
done.
1T is further urged that the ordinance
is unconstitutional, because, as alleged,
Its title does not embrace all its objects.
Also, that the ordinance was not pub
Hshed ten days prior to the 1st of july,
and that it could not take effect until after
it had been published ten days.
Some other objections are made, which
will be noticed further on.
with respect to the first specific OBJ
lection, it Is sufficient to say that, by Sec
ton so Of the charter Qaws 1868. p. 432),
ii is expressly provided that actions in
nRh Ilx
due for hcenses-may be brought in the
name OF The City of Sacramento.'
ut is claimed by counsel for defendant
that this provision of the charter is in
effect repealed by the Act of March 16,
1854 Qawsl663-4, p. lS3), which provides
for actions to collect delinquent muni-
cIpal or levee taxes, or street assess
ment,' being brought in the name of the
people, etc, and not in the name of the
corporation.
II do not think this contention is good.
There is no intention manifested on the
lace OF this Act to interfere with those
portions of the city charter upon which
this suit is based; neither is there any
conflict between them. The collection of
4Icenses at the instance of the Collector by
suit III the name of the city, pursuant to
Section 90 of the charter, and the col
lection OF delinquent municipal or levee
taxes, or street assessment, at the instance
OF the District Attorney, pursuant to the
Act Of March Is, 1854 are not inconsist-
ent proceedings and may proceed har-
7nonlously together.
THE objection that civil action will
not lie TO recover the amount of the Ii
CenSe because penalty is also provided
IS likewise untenable. Section 81 of the
Code Of Civil Procedure provides that
when the violation of a right admits of
both civil and criminal remedy. the
right to prosecute the one is not merged
in the other
The fact that the neglect to paw the Ii
cense is also made a misdemeanor, with
u penalty attached, cannot, upon any
principle of law, nor upon any authority
that l have seen, have the effect to alb
solve the debtor from his liability to paw
The license: Ifthere is a seeming hard
snip IN such cases, it is mitigated-in fact
Temoved-in the case at bar by Section so
OF the charter, which provides that the
defendant may plead in bar of the Grim
lnal action recovery against him, and
the payment by him in civil action of
the proper license money, damages and
costs laws of 1863, p. 432)
The objection that the ordinance is in
conttlcowith Subdivision of Section 2 of
the charter, is obviously founded upon a
mIsreadlng or misunderstanding of
that subdivision, as will be readily seen
upon an examination of it.
That portion of the subdivision which
requires regard TO the amount of bust
ness done by each person to be had in
liking the amount of the license, does not
refer to 'tippling-houses, dram-shops.
saloons, bars, barroOms,' etc. It is the
concluding paragraph of rather long
subdivision, and expressly refers ONLY to
professions, trades, or business not here
tofore specified. Saloons, barrooms. etc.
v we're specified in the preceding Dart of
the subdivision, and with reference to
them the city was given the power to
license, tax, regulate, prohibit, or sup
press
THE argument that the ordinance is
oppressive upon some by reason of its
alleged inequality, as an argument
against the validity of the ordinance. has
no weight. The power of the CITY not
only to oppress, but to suppress saloons
where liquors are retailed, is undoubted.
and high license-so high as to amount
10 prohibition and suppression-is is clearly
within the power conferred on the city by
Section so of the charter.
Tho objection that the ordinance is
invalid because its title does not embrace
all its objects, is readily disposed of bv
reference to the title itself, which reads as
follows:
An ordinance regulating saloons.
barrooms, etc, and providing the
amounts of city license to be paid by
keepers of saloons, barrooms and other
places whore wines and liquors are sold.
y
there are other matters in the ordinance
to which the title makes no reference.
since, If there were, ii would not affect
the validity Of the ordinance, so far as It |
relates to these saloon and barroom
licenses.
with regard to the publication of the
ordinance being necessary before it could
take effect, it is only necessary TO saw
there is nothing requiring such pubiica-
ton as condition to put the ordinance
IN force. neither in the city charter. the
general laws, nor the Constitution.
The publications required by Section
16 of the charter are manifestly for the
information of the public only. The
requisition that the Trustees shall pub
lish all ordinances for ten days in some
newspaper published in said city.' is
merely directory. If this duty were
wholly neglected, the validity of the or
dinance would not thereby be affected.
1t is the duty of all law-givers TO promptly
inform the people of the laws they enact
"a duty often slowly performed, and
perhaps sometimes wholly neglected
but the laws take effect all the same.
except in such cases where las in the
is specially provided that the law shall
not take effect until ten days after publi-
cation.
"The objection that Section so of the
charter is obnoxious to Section Il of Ar
ticle XI. of the Constitution is not ten
able. The licenses complained of are not
fixed or imposed by the Legislature. as
they were by the Political Code referred
to IN the case of the People VS.. Mastin
liked by the city, the power to do which
Is expressly given by the section of the
constitution referred to.
Let the demurrer be overruled."