premises for five years next before the filing of the complaint herein and the exclusion of the evidence thus offered is the only supposed error remaining to be considered.

The answer of the defendants was a mere denial of the allegations contained in the complaint.

There was no attempt whatever, even such an one as was made in McCreery vs. Sawyer, to plead the statute of limitations-nor was any affirmative defense whatever set up in the

answer.

In this condition of the pleadings the proof offered by the defendants, even if amouuting to anything in itself, was correctly excluded.

Judgment and order affirmed. Remittitur forthwith.

SECTION 49 of the Civil Code as amended passed both houses and is before the Governor for his signature. It provides for six terms of the Supreme Court in each year commencing on 2nd Mondays in January, April, May, July, October and November. The January and July Terms will be held at San Francisco, the April and October Terms at Los Angeles and the May and November Terms at the State Capital. Separate records to be kept at each place of holding the terms.

THE Assembly refusecd to concur in the amendments made by the Senate to the Constitutional Convention bill and the Senate has passed a resolution for a free conference concerning it.

We sincerely trust that these dilatory measures are not meant to defeat the bill as much is looked for in the anticipated change in the judiciary system of the State to result in some plea for the more speedy determination of causes in the various Courts.

Supreme Court of California.

[January Term, 1877.]

[No. 10,316.]

[Filed March I, 1878.]

EX PARTE FRANK ON HABEAS CORPUS.

MUNICIPAL CORPORATIONS-Powers of-A Municipal Corporation is the creature of the Statute invested with such power and capacity only as is conferred by the statute or passed by necessary implication.

2.

SAME In construing the words of the grant the whole chapter and the general legislation of the State respecting the matter must be consulted in order to determine whether by the terms "license and regulate" it was intended to authorize licenses for purposes of revenue. Acting on this rule of interpretation it is held that the act giving power "to license and regulate trades, callings and employment as the public good may require to be licensed and regulated" confers power to exact license fees for purposes of revenue. SAME-But an ordinance passed under a general authority of this nature must be-1. reasonable, consonant with the general powers and purposes of the corporation and not inconsistant with the laws or policy of the State. it must not be oppressive; 3. it must be impartial, fair and general; 4. it may regulate but must not restrain trade or contravene public policy. SAME Statement of case-Frank was convicted of a misdemeanor for violation of what is known as the Sample Sellers Ordinance and being restrained of his liberty upon process issued upon the judgment of conviction was before the Court on a writ of habeas corpus. The ordinance provides in effect that any person who shall sell or solicit for the sale or purchase of any goods, wares, merchandise, etc., without at the time having the goods at or in the city and county of San Francisco or a bill of lading of a common carrier showing the goods are in transitu to said city and county shall pay a license of $2,000 per quarter for every $250,000 of business done and then establishes other proportions. But the ordinance provides also for licensing other persons for buying and selling the same character of goods that are within the corporate limits of said city and county, fixing the fees at $100 per quarter for the same amount of business. Held that the ordinance is flagrantly unjust, oppressive, unequal and partial. It contravenes public policy and obstructs commercial intercourse between the principal seaport city of the State and the interior, and is in restraint of trade, and is therefore inoperative and void.

The petitioner having been convicted of a misdemeanor for the violation of what is known as the "Sample Seller's Ordin

ance" of the City and County of San Francisco, and being restrained of his liberty upon process issued upon the judgment of conviction is before us on a writ of habeas corpus, and claims that he is entitled to be discharged from custody, on the ground that the ordinance is unconstitutional and void.

The ordinance in effect provides that any person who, in the city and county of San Francisco, shall sell, or contract to sell, or cause to be sold, or solicit for the sale or purchase of any goods, wares, merchandise, distilled liquors, or drugs or medicines, jewelry, or wares of precious metals or stones, or any other property of any kind, except wheat, wine, wool brandy, agricultural productions in the raw state, and imports of foreign goods, wares and merchandise upon which duties have been paid or secured to be paid to the United States, and which have never been sold in the United States and are still in original packages, whether on commission or otherwise, without, at the time, having the goods at or in the said city and county or a bill of lading or receipt of a common carrier, showing on its face that the goods named therein have been shipped and are in transitu to said city and county "shall pay a license in proportion to the amount of business done by him or them as follows:" The ordinance then provides that those doing business to the amount of $250,000 and over per quarter, shall constitute the first class and shall pay a license fee of $2,000 per quarter, and then establishes seven other classes, according to the amount of business done, regulating the license fee to be paid by the amount of business done. Another chapter of the same ordinance provides for licensing persons engaged in the same general business of buying and selling the same kinds of merchandise within the corporate limits, and divides them into several classes, according to the amount of business done, but the license fee to be paid in this class of cases is far less than is exacted for a sample-sellers license. For example, the merchant whose goods are within the corporate limits, and who does a business to the amount of $250,000 per quarter, is required to pay a license fee of $100 per quarter, while a merchant engaged in the same business, but whose goods are not within the corporate limits, or actually

in transitu to San Francisco, under a bill of lading, and whose business amounts to $250,000 per quarter, is required to pay a license fee of $2,000 per quarter-just twenty times more in the latter case than in the former. About the same ratio of inequality pervades all the other classes established by the ordinance. The result is that a merchant whose business it is to sell goods which at the time of the transaction are not actually within the corporate limits or in transitu under a bill. of lading, is required to pay about twenty times more for the privilege of pursuing his avocation than another merchant doing business in the same city and who deals in the same kinds of merchandise, but who buys and sells only goods. which are actually within the corporate limits or in transitu under a bill of lading. The discrimination is made to depend solely on the fact that in the one case the goods are either within the corporate limits or in transitu under a bill of lading, and in the other case they are not.

It is contended on behalf of the petitioner that the ordinance violates several provisions of the Federal Constitution, and particularly that which confers upon Congress the power to regulate commerce with the foreign nations and among the several States. But we do not find it necessary for the purposes of this decision to examine the questions of Constitutional law which have been so ably and elaborately discussed by counsel, and shall rest our judgment on other grounds. "A municipal corporation is the creature of the statute invested with such power and capacity only as is conferred by the statute, or passes by necessary implication from the statutory grant." Herzo vs. San Francisco, 33 Cal., 143. Argenti vs. San Francisco 16 Cal., 282. Wallace vs. San Jose, 29 Cal., 180. Dillon on Municipal Corporations, section 55, et seq.; Cooley on Const. Lim., 191 to 195.

It becomes material therefore to inquire what powers have been conferred upon the Board of Supervisors of San Francisco in respect to licensing occupations. By the third section of the Act of March 30, 1872 (Statutes 1871-2, 736) it is provided that the Board of Supervisors shall have power, by ordinance, to license and regulate all such callings, trades and

employments as the public good may require to be licensed and regulated, and as are not prohibited by law." When the power conferred upon the corporation, as in this case, is to "license and regulate" callings and occupations, a question has sometimes arisen in the courts, whether under such a grant of power, the corporation could exact license fees for purposes of revenue, or should be limited to a sum reasonably sufficient to defray the expense of granting the license. (Dillon on

Mun. Corp., § 291.)

But the rule, as stated by Judge Dillon, is, that in construing the words of the grant, the whole charter and the general legislation of the State respecting the subject matter, must be consulted in order to determine whether by the terms "license and regulate" it was intended to authorize licenses for purposes of revenue. Acting on this rule of interpretation, we are of opinion, that it was intended to authorize the City and County of San Francisco to exact license fees as a source of revenue. There are, however, certain rules adopted by the Courts in construing the ordinances of a municipal corporation, passed under a general power conferred by statute on the corporation to pass ordinances on a given subject, which it is necessary to consider. An ordinance passed under a general authority of this nature must be, first, "reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State;" second, it must not be oppressive; third, it must be impartial, fair and general; fourth, it may regulate, but must not restrain trade. (Dillon on Mun. Corp., § 253 to 257 inclusive, and authorities. there cited).

By its charter the city of St. Louis was authorized to establish markets, market places and meat shops, provide for the government and regulation thereof, and the amount of licenses to be paid therefor, and to regulate the vending of meat, etc. A city ordinance was passed which prohibited any person, not being the lessee of a butcher's stall, from selling, or offering for sale any fresh meat in quantities less than one quarter. In St. Louis vs. Weber, 44 Mo. 547, this ordinance was assailed on the ground that it was an unreasonable exercise by the