People v. Cole

Myrick, J.

Action to recover a license tax of one hundred dollars. The court below granted a nonsuit, and on this appeal two points are presented by the respondent as to the correctness of the ruling:—

1. The ordinance was not passed on the first Monday of October, as required by section 4045, subdivision 3, of the Political Code.

2. The ordinance was not recorded by the clerk in the ordinance-book until after the defendant made the sales complained of. (Act to establish a uniform system of county governments, approved March 14,1883, secs. 2, 21.)

It appears from the transcript that, on Monday, October 1st, the matter of fixing rates for county licenses came on for consideration by the board of supervisors, and the board, by entry in its minutes, continued the matter until the third; on the third the matter was continued until the fourth; and on the fourth was again continued until the fifth; on the fifth, the ordinance was passed by unanimous vote. We think this was a substantial compliance with the statute. We do not think a proper construction of the language of the statute is that all power over the subject is to cease with the end of the first Monday. We think rather, a proper construction is, that the board should on that day take up the subject for consideration, and conclude it as soon as may be.

As said above, the ordinance was passed October 5th, and was duly signed and published as required by law, but was not recorded until about the 1st of February following. The sales complained of took place between the publication and the recording. It is claimed, by the defendant, and the court below seems to have been of that opinion, that the document was not an ordinance until recorded. We do not read in the statute a requirement that the ordinance shall be recorded before it shall take effect; by the statute, publication or posting is made necessary before it takes effect (section 26, act above referred to), but not recording.

The judgment and order are reversed, and the cause is remanded for a new trial.

Eoss, J., Sharpstein, J., Thornton, J., and MoKinbtry, J., concurred.