In re McCoy

Petitioner was, on August 3, 1908, complained against for a misdemeanor in violating an ordinance of the county of Lassen requiring a license to be paid for raising, grazing, herding and pasturing sheep and lambs within said county; a warrant of arrest was issued by a justice of the peace and was duly served by arresting the defendant (petitioner here) and bringing him into the magistrate’s court on said day, whereupon he was committed to the custody of the sheriff of Lassen county “pending the calling of his case for trial” and was by the sheriff taken into custody. Petitioner thereupon, to wit, on August 5, 1908, presented his petition to this court, alleging his imprisonment under said commitment, and the writ was ordered to issue directing the sheriff to produce the prisoner and have him in court on August 14, 1908, “and that in the meantime said petitioner be released on bail in the sum of $100.00 cash.” In his return the sheriff states that petitioner was committed to his custody by virtue of the commitment and was detained by virtue thereof; “that upon the service of said writ the said L. L. McCoy was admitted to bail in the sum of $100.00 cash as ordered by said writ, and that since such time the said L. L. McCoy has not been in, and is not now by me imprisoned or detained.” The matter came on to be heard on August 14, 1908, and was fully argued. It appearing, however, that the issues presented were such as to require evidence to be taken the court accordingly so ordered and appointed a commissioner for that purpose. The further hearing was continued until October 31, 1908. Meantime, the commissioner, without objection of respondent, proceeded to take testimony, of which there are several hundred pages, and many exhibits. For the first time, at the hearing, October 31st, the point was made by respondent that the case is moot and the writ must be dismissed. Citing Ex parte Schmitz, 150 Cal. 664 , [ 89 Pac. 438 ]. The facts here are wholly unlike the facts in that case and in the case of Ex parte Gow, 139 Cal. 242 , [ 73 Pac. 145 ]. The rule there applied was for the protection of the court against eases made for the sole purpose of testing the validity of the law under which the arrest was made and where the arrest was voluntary and procured by the defendant, not because he was being detained and deprived of his liberty, for in one of those cases the defendant was already enlarged

Section 1 of Ordinance No. 82, passed January 11, 1908,. by the Lassen county board of supervisors, for the violation-of which the petitioner was arrested, provides that “Every person, association, firm or corporation engaged or engaging-in the business of raising, grazing, herding or pasturing sheep- or lambs within the county . . . must annually, at the time-of engaging in said business each year, procure a license therefor from the license tax collector of said county, and must file-the affidavit hereinafter provided for and pay a license fee or-charge of five cents for each sheep or lamb raised, grazed,, herded, or pastured within Lassen County by such person. ...” Section 2 provides that in order to procure the license-the person must file with said license tax collector, with the-application, an affidavit showing the number of sheep and lambs then or thereafter to be raised, grazed, herded or pastured within said county; whether said sheep or lambs are or-have been infected with scab or any other infectious or contagious disease, and if so, when and where they were located when so infected; the portion of the county in which they are-to be grazed, etc., during the current year; whether the applicant has previously raised, herded, grazed or pastured!

This ordinance was passed pursuant to and, as claimed by respondent, agreeably to the power given to the board of supervisors by subdivision 22, section 4041, of the County Government Act of 1907 (Stats. 1907, at p. 370). See, also, section 3366 of the Political Code (Stats. 1901, p. 635). The power granted to boards of supervisors, by the act of 1907, is: “To license, in the exercise of their police powers, and for the purpose of regulation, as herein provided, and not otherwise, all and every kind of business not prohibited by law, and transacted and carried on within their respective jurisdictions ... to fix the rate of license tax upon the same, and

It is contended by petitioner: 1. That the license tax imposed by the ordinance in question is not in the exercise of the police powers of the board; 2. That the purpose of the ordinance and license tax is revenue and not regulation; 3. That the amount of the tax imposed is burdensome, oppressive, and unreasonable; 4. That the purported regulatory provisions of the ordinance are burdensome, oppressive, and unreasonable; 5. That many of these purported regulatory provisions are unreasonably and unlawfully discriminating against those engaged in the business sought to be regulated; 6. That the tax imposed upon lambs is burdensome, oppressive, and unreasonable, and is in violation of the act of February 26, 1903, entitled “an act restricting the powers of boards of supervisors in the matter of imposing licenses upon the business of raising, herding, grazing and pasturing sheep.” (Stats. 1903, p. 41.) This act forbids the imposition of a license tax greater than five cents per head “on the business of raising, herding or pasturing sheep.”

Certain questions arose at the argument which should first be disposed of. 1. It is claimed that the court cannot go beyond the face of the process to determine its validity except to inquire into the jurisdiction of the committing magistrate ; that as he clearly had jurisdiction by the terms of the ordinance and as the process is without flaw on its face there is an end of the matter. But this assumes that no infirmity of the ordinance, which is the basis of the imprisonment, can be inquired into on habeas corpus, and this, we think, is too broad a claim.

In Ex parte Hollis, 59 Cal. 405 , the court said: “Of course, where a court has jurisdiction of the subject matter, and the parties, its judgment is not reversible on such process. Being conclusive, courts will not go behind it to ascertain whether any errors of law were committed in the proceeding in which it was rendered. But the judgment is not conclusive upon the question of the authority of the court that rendered it. That, as well as any other matter which would render the proceeding void, is always open to inquiry. It were a legal absurdity to say that a judgment of conviction, valid in form, precluded inquiry into authority to render it.” In Ex parte Siebold, 100 U. S. 371 , the validity of an act of Congress was

2. It is also claimed, as a sequence of the foregoing proposition, that the court cannot on habeas corpus take evidence upon disputed questions of fact; that the writ must be granted, if at all, upon the petition and return. Section 1484 of the Penal Code specifically confers the right upon the defendant to controvert any of the material facts set forth in the return, “or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge”; and it authorizes the court “to proceed in a summary way to hear such proof as may be produced against such imprisonment,” and the court is given “full power and authority to require the attendance of witnesses . . . and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case. ’ ’ In Ex parte Cottrell, 59 Cal. 420 , it was held that if the return shows that the party seeking the writ is illegally detained, he may controvert the facts and allege any facts showing his unlawful detention. “In case he does so, he may introduce evidence to prove any issue which he thus raises.” In the case of In re Smith, 143 Cal. 368 , [ 77 Pac. 180 ], the facts pleaded in the petition were such as necessarily were de hors the ordinance; these facts were beyond the process and return and upon them the court declared the ordinance to be unreasonable and oppressive, an invasion of petitioner’s constitutional rights and therefore void. (See, also, Church on Habeas Corpus, secs. 160-165, 169-177, 230; Encyclopedia of Evidence, pp.

3. The contention that the action of the supervisors in adopting the ordinance is conclusive of its reasonableness and particularly as to the amount of the license tax, deserves attention, but we think it is not maintainable. Our reports abound with cases controverting this contention. Among them may be cited Ex parte Frank, 52 Cal. 606 , [ 28 Am. Rep. 642 ]; Ex parte Whitewell, 98 Cal. 73 , [ 35 Am. St. Rep. 152 , 32 Pac. 870 ]; Ex parte McKenna, 126 Cal. 429 , [ 58 Pac. 916 ]; City of Sonoma v. Curtin, 137 Cal. 583 , [ 70 Pac. 674 ]; In re Smith, 143 Cal. 368 , [ 77 Pac. 180 ]; P lumas County v. Wheeler, 149 Cal. 758 , [ 87 Pac. 909 ], And a very instructive ease is Postal Telegraph-Calle Co. v. Taylor, 192 U. S. 64 , 124 Sup. Ct. 208 ], In the ease In re Smith 143 Cal. 368 , [ 77 Pac. 180 ], the court said: “When the police power is exerted to regulate a useful business or occupation, the legislature is not the exclusive judge as to what is a reasonable and just restraint upon the constitutional right of the citizen 1o pursue any trade, business, or vocation which in itself is recognized as innocent and useful to the community. It is always a judicial question if any particular regulation of such right is a valid exercise of police power, though the authority of the courts to declare any regulation invalid will he exercised with the utmost caution, and only when it is clear that the ordinance or law declared void passes the limits of the police power and infringes upon rights guaranteed by the constitution.” Quoting from Lawton v. Steele, 152 U. S,

4. But it is contended that the legislature, by implication, conferred authority upon the supervisors to fix the license fee at five cents per head, in the act of 1903 (Stats. 1903, p. 41). It is there provided “that no license or licenses greater than five cents per head shall be imposed by the boards of supervisors of any county on the business of raising, herding or pasturing sheep, and any and all licenses imposed by the board of supervisors of any county on the business in excess of five cents per head shall be and are hereby declared to be void.” In the first place, the assumption that the legislature has here granted the power to fix the fee at five cents per head is not warranted by the language of the act, for it is declared to be “an act restricting the powers of boards of supervisors.” The act, if construed to give the power to fix the license fee the amount mentioned, is a limitation beyond which they may not go, and is not a grant to fix that amount. But if this distinction has little weight, it still remains true, as we have shown, that the legislature has no power to impose an unreasonable tax, much less has it power to delegate such power to a municipality. Besides, the act of 1907, supra,

5. It is claimed that if there is any evidence, however slight, upon which the board could base their action, the court will not inquire further, but will deny the writ. The courts have expressed themselves upon this point frequently, but nowhere, so far as we have found, to the effect that “any evidence, however slight,” will close the doors against relief by the writ. It has been said that “a clear ease should be made to authorize an interference on the ground of unreasonableness.” (In re Smith, 143 Cal. 368 , [ 77 Pac. 180 ]; Sonora v. Curtin, 137 Cal. 583 , [ 70 Pac. 674 ].) “When the validity of an ordinance is attacked on the ground that it is unreasonable, the burden of showing its unreasonableness is

We may pause here to observe that the court uses the term “motive” in an entirely different sense from the sense in which the legislature used the word “purpose,” that is, in conferring the power to fix a license tax “for the purpose of regulation.” The word “purpose” means “that which a person sets before himself as an object to be reached or accomplished; the end or aim to which the view is directed in any plan, manner or execution.” (Words and Phrases Judicially Defined.) “The purpose of legislation is to be determined by its natural and reasonable effect, and not by what may be supposed to have been the motives upon which the legislature acted.” (People v. Roberts, 171 U. S, 658 , [ 19 Sup. Ct. 58 ].) The court in the Smith case did not intend to use the word “motive” synonymously with the word “purpose” as used in the statute, for it said: “Evidence in such cases will be admitted to show existing conditions,” and from these we are to judge of the purpose which, in the present case, it is claimed is shown by the evidence to have been for revenue and not regulation.

But to recur to the particular point under discussion. It seems to us that when under the power of the court evidence is taken, the court must judge of its sufficiency to establish an issue precisely as in other cases except where the validity of a statute is in question, the evidence must clearly show the or

6. In the sense in which the term “purpose” is used in the-act, evidence is admissible which would tend to show that revenue and not regulation was the object or end to be attained; and also as bearing upon the necessity for and extent and character of the regulation required to be given the business. The court will consider the “circumstances in the light of existing conditions.” (In re Smith, 143 Cal. 368 , [ 77 Pac. 180 ].) These conditions are multifarious and indefinable by fixed rules. In Plumas County v. Wheeler, 149 Cal. 758 , [ 87 Pac. 909 ], the supreme court said: “We cannot undertake to specify all the particulars which should be brought into view where the reasonableness of a municipal ordinance-is challenged.” The court there undertakes to enumerate-some of the expenses to the municipality which may be shown in addition to such as arise directly in the enforcement of the-regulatory provisions themselves. “In fixing the fee, it is proper and reasonable to take into account not the expense-merely of direct regulation but of all the incidental consequences of the business licensed. ... To arrive at the amount of such expense, it would be necessary to "consider the topographical condition of the country, the extent of the industry as practiced there, the effect of the industry on the roads, trails and other public property of the county, the probable-cost of prosecution for violations of the ordinance and any other matters having a reasonable tendency to indicate the-

The case of Postal Telegraph Cable Co. v. Taylor, 192 U. S. 64 , [ 24 Sup. Ct. 208 ], involved the reasonableness of an ordinance which imposed an annual license fee of one dollar on each pole and two and one-half dollars on each mile of wire used in the borough. The court said: “We come, then, to an examination of the question whether this fee, in the light of the admitted facts as set forth in the affidavit of defense can, by the widest stretch of the imagination, be regarded as reasonable. The borough is, where the poles are planted and the wires stretched, sparsely settled and the danger to be apprehended from the poles and wires reduced to a minimum. The borough has in fact done nothing in the way of inspection or supervision during the time covered by the license in question. It has not expended one dollar for any such purpose. It has incurred no liability to pay any expense arising from inspection or supervision on its behalf. . . .

“To uphold it in such case as this is to say that it may be passed for one purpose and used for another; passed as a police inspection measure and used for the purpose of raising revenue; that the enactment of a police measure may be used as a subterfuge for the purpose of raising revenue, and yet, because it is said to be an inspective measure, the court must take it as such and hold it valid, although resulting in a rate of taxation which if carried throughout the country, would bankrupt the company were it added to the other taxes properly assessed for revenue and paid by the company. It is thus to be declared legal upon a basis and for the reasons that do not exist in fact. . . . Confessedly there has been here no inspection, no expense incurred to provide for one even though not made, and all expenses and liabilities that might fairly and reasonably be incurred on the part of the borough are not one-twentieth of the amount it exacts for an inspection which it has not made. Under such facts it would seem to be plain that the ordinance was adopted as a means .for the raising of revenue and not to repay expenses for inspection. Judging the intention of the Borough by its action it did not

intend to expend anything for an inspection of the poles and wires, and did intend to raise revenue under the ordinance. Courts are not to be deceived by the mere phraseology in which the ordinance is couched.”

The supreme court said in Plumas County v. Wheeler, 149 Cal. 758 , [ 87 Pac. 909 ]: “It is also well settled that the power to regulate a business may be exercised by means of a license fee or charge. The amount of the license fee, however, must not be more than is reasonably necessary for the purpose sought—i. e., the regulation of the business. If it is so great that the court can plainly see that the purpose of its imposition was to realize a revenue under the guise of regulating the business, the provisions for the fee cannot stand as an exercise of the police power.”

7. With these principles as our guide let us examine the facts in the ease. The county of Lassen may be designated as mountainous, the greater portion of the western part being: of high elevation and in the belt of heavy winter snows; is in considerable part timbered and of such climatic conditions as to admit only of summer pasturing and by sheep is generally so used for three’to five months of the year, depending upon the seasonal storms. A somewhat similar region is found in a large area of the northern and eastern part of the county, but less timbered, less snow and rain, to some extent a sagebrush country and used for summer and fall pasture of livestock and some portions so used in the winter. Of valleys more or less cultivated, Honey Lake Valley, elevation about four thousand feet, the lowest in the county, and Big Valley, are the principal ones, with here and there small valleys in the eastern and northern parts of the county. The total area of the county is about three million acres, of which a little over six hundred thousand acres are assessed, and of this only about one hundred thousand acres are assessed as agricultural land. The population is centered in and around these valleys. The western, along most of the northern and in the eastern parts of the county few persons have permanent residence—these are essentially summer grazing regions for stock, mostly driven to them in the spring and taken out in late summer. Except in the more thickly inhabited portions of the county, there are very few public roads, and the topography of the country and the settlements in the county

The evidence is that about two hundred and seventy-five thousand sheep and lambs are grazed and pastured in the county during a portion of the year. The tax collector reported to the board of supervisors, July 9, 1908, that “six sheep owners in Lassen county pay taxes on 12,825 sheep, leaving 254,700 sheep on which no tax for revenue is received unless by license.” Respondent stated in his return that “there are at the present time 275,000 sheep and lambs in said county.” He states that at the time the ordinance v/as passed the average annual number did not exceed one hundred and fifty thousand. The evidence of men engaged in the business and familiar with all the facts shows that the number is and has been for several years about two hundred and seventy-five thousand. The number paying property tax is as above stated, which leaves two hundred and sixty-two thousand one hundred and seventy-five of what may be termed

In Plumas County v. Wheeler, 149 Cal. 758 , [ 87 Pac. 909 ], the court said: “The amount of the license fee must not be more than reasonably necessary for the purpose sought—i. e., the regulation of the business.” How wide a scope must be given to the term “regulation”? How are we to determine where the purpose to regulate ceases and the purpose to obtain revenue begins ? In the exercise of the police power of the board, under which alone the ordinance may be passed, to what extent may the board go in the direction of exacting the payment of money, for the privilege of engaging in a useful and harmless business? Clearly no further than is necessary to regulate the business. What do we mean by regulate? To regulate means to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles of law. It does not include a power to suppress or prohibit (24 Am. & Eng. Ency. of Law, pp. 234, 235). The elements which enter into the charge are the necessary or probable expense incident to the issuing of the license and the prohable expense of such inspection, regulation and police surveillance as municipal authorities may lawfully give to the particular business; the expenses attending direct regulation and oversight and the incidental cost to which the municipality is subjected in properly supervising the business (Plumas County v. Wheeler, 149 Cal. 758 , [ 87 Pac. 909 ]); the municipality may impose under the police power such charge for the license as will cover the expense of issuing it, and the additional labor of officers and other expenses incurred (Cooley’s Constitutional Limitations, ed. 1886, p. 242); if all the items of expense reasonably necessary for the

License collector’s commissions... „..............$ 850.00

Printing licenses, affidavits, etc.................. 50.00

Expense of enforcing section 2 of ordinance No. 82

........................................ 1,000.00

Expense of criminal prosecution for violation of the

ordinance................................ 1,200.00

Damage to public roads........................ 10,000.00

$13,100.00

This estimate, the witness testified, was made at the request of the board “for the purpose of the hearing of this case”; not by the board as a basis for its ordinance previously passed. The bills presented in support of the estimate for printing licenses amounted to less than $20. In further support of the item, a bill was presented for publishing the ordinances, $60, which certainly was not pertinent.

The ordinance makes no provision for payment of commissions to the license tax collector, set down at $850. The tax collector receives a salary and is allowed a deputy at a stated salary (Stats. 1907, p. 536), and by section 4126, page 391, it is made his duty to “collect all county licenses.” The district attorney and sheriff are also paid salaries, and the statute (sec. 4290, p. 545) provides that “the salaries and fees provided in this title shall be in full compensation for all services and fees of every kind and description rendered by the officers named in this title, either as officers or ex-officio officers, their deputies and assistants, unless otherwise provided, and all deputies employed shall be paid by their principals out of the salaries provided in this title, unless in this title otherwise provided.”

The item of $1,200 for expense of criminal prosecutions for violations of the ordinance is largely conjectural. Presumptively, civil actions, if successful, will pay their cost by the fines collected, and if unsuccessful it should not be fastened on the business regulated. The district attorney and peace officers charged with the duty of enforcing the ordinance are entitled to no compensation for such service except that provided by law. The district attorney may incur certain liabilities in the preparation and prosecution of cases which

It is contended that many of the regulatory provisions are unlawfully discriminating against those engaged in the said business. The evidence is that a great many sheep, as well as other livestock, pass through the county over its roads to

Finally, it is contended that the license tax upon lambs is burdensome, oppressive and unreasonable and is violative of the act of February 26, 1903, supra. The evidence is that about one-third of the flocks are lambs, born in March and April. This is especially true of petitioner’s sheep and substantially all, for but few sheep are raised in Lassen county. These nursing lambs are but two or three months old when taken to the ranges, and leave when six or seven months old. They are not taxed for state and county purposes, and are not treated as sheep by the national foresters. It appeared by the evidence that in buying and selling sheep, and in transactions relating to the business, lambs are not known as sheep,

It is furthermore contended that if there be doubt as to whether the legislature meant to include lambs in the act, the lamb should have the benefit of the doubt because of its tender age and much less value, and because it would be unreasonable to treat it for purposes of licensing or taxation the same as an old sheep. In interpreting the meaning of the word, with reference to taxation for state and county purposes, it is universally interpreted to exclude unweaned lambs just as the young of other animals are excluded. The statute provides that words “are construed according to the context and the approved usage of-the language.” (Civ. Code, see. 13.) “In construing statutes, words are to be taken in their usual and popular sense, unless they have a well understood technical meaning.” (Houghton’s Appeal, 42 Cal. 35 .) We do not find it necessary to decide the point. We think it otherwise plainly appears that the ordinance is unreasonable, and was adopted for the purpose of raising revenue and was not intended to be, and is not, an ordinance adopted for regulation only, and is therefore void.

It is ordered that the petitioner be discharged.

Hart, J., and Burnett, J., concurred.