The first point made by appellant, namely, " that the Board of Supervisors had no power to authorize a civil action to recover city licenses," is answered by reference to section four of the Consolidation Act, (Statutes of 1858, 269) where the power is directly given to the Board of Supervisors " to fix and collect a license tax * * * on all trades, professions and business."
The authority to collect includes the manner of collecting, that is, by the ordinary civil proceedings. (Burnett v. Sacramento, 13 Cal. 76 .)
Appellant's counsel bases his argument upon the first clause of that section, omitting any reference to the part just quoted. But section second of the same act (268) also contains ample authority for maintaining this action in the present form. By that section the plaintiffs are vested with all " rights of actions, moneys, revenues and income" appertaining to the city under the former charter. This would be sufficient, even if the express power " to fix and collect" the license were not contained in any other portion of the act.
The general right of the city to collect a license tax is fully sustained by this Court in the late case of the City of Sacramento v. The Stage Company (12 Cal. 134 .)
As to the second point: absolute equality and uniformity in taxation can never be reached. (People v. Coleman, 4 Cal. 46 .)
But the fixing of these licenses is wholly within the discretion of the Board of Supervisors. They may exempt any particular business from this occupation tax--or they may make the tax uniform on any one occupation, without reference to the amount of business done; or they may grade the taxas they have essayed to do in this instance.
But the appellant has no ground of complaint under this head, because there is nothing to show that all others in the same trade do not transact precisely the same amount of business with himself.
This Court will hardly take judicial notice that some other dealer in the same line trades a little more or a little less, and that appellant is, therefore, unfairly dealt by; nor will they take judicial notice that there are others in the same business in this city who may possibly be aggrieved by the same ordinance.
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
BALDWIN, Judge
This was a suit brought before a Justice of the Peace to recover of the defendant a license tax assessed against him under an ordinance of the Board of Supervisors. The tax was levied as a license tax upon the business of defendant as a merchant. The appellant, defendant below, appeals from the judgment, assigning as errors.
1. That the Board of Supervisors have no power to enforce the ordinance affixing this tax by suit. It is a sufficient answer to say that by the third section of the Consolidation Act of 1858, (Statutes, 268) power is given to the Board of Supervisors " to levy taxes and cause the same to be collected," and by the fourth section (269) the Board has power " to fix and collect a license tax on * * * all trades, professions and business." As the duty and power of causing this tax to be collected are given to this Board, we must presume, in the absence of anything to the contrary, that the Legislature meant to give to the Board the usual and appropriate means of doing what is enjoined or allowed; and we can conceive of no better mode of enforcing this requisition than the ordinary process of law. Indeed, as no remedy seems to be given by distress or summary sale of the property, it would seem that this was the only mode of giving effect to the power, and without it the power itself would be nugatory. There can be no doubt that the vending of merchandise is a business within the meaning of the act.
2. It is urged that this tax is unconstitutional because unequal. The twenty-third section of the ordinance imposing this tax provides that every person transacting the business of a merchant shall pay a license tax as follows: Monthly sales not over $ 1,000 a quarter, ten dollars; between $ 1,000 and $ 2,000 per quarter, twelve dollars and fifty cents; $ 2,000 and $ 4,000, fifteen dollars; $ 4,000 and $ 6,000, seventeen dollars and fifty cents; and so forth. The finding is that the monthly sales of the defendant exceeded the sum of $ 2,000. This is not a tax on the goods, but a tax on the business of the merchant; and though the license price is graduated by the amount of sales, yet this is only the standard adopted for determining the amount of the license tax; and this provision is uniform and equal, applying to all persons in the same category. It is nothing to the small dealer, selling not over $ 1,000 a quarter, that a less percentage is charged on the sales (to express the idea in the language of appellant's argument) above the amount of his own. On that amount the charge is equal. At all events, we see no such violation of the Constitution as to warrant us in holding the ordinance void.
The other points need not be noticed.
Judgment affirmed.