In Re Gilstrap

I see nothing in this case requiring elaborate statement, prolonged discussion, or the citation of many authorities. Assuming that the law in controversy is an exercise of the police power and not of the power of taxation, the questions presented have long been settled by numerous decisions and are comparatively simple and easy of solution. Upon that hypothesis, the decisions in Baccus v. Louisiana, 232 U.S. 337, [58 L.Ed. 627, 34 Sup. Ct. Rep. 439], Ex parte Campbell,74 Cal. 20, [5 Am. St. Rep. 418, 15 P. 318], and Ex parteCoombs, 169 Cal. 484, [147 P. 131], establish the proposition that a law regulating a business which, if unrestricted, may be injurious to the public health or safety, violates neither the state nor the United States constitution.

If, however, the act is not a police regulation but an act imposing a tax for revenue, it might, perhaps, be plausibly urged that a law imposing an occupation tax solely upon itinerant drug peddlers, leaving all other peddlers and all other mercantile pursuits free from such taxes, would be an improper discrimination against one class of peddlers, on the ground that there is no just basis for the classification. The petitioner argues that it is a revenue tax and that it arbitrarily places an unequal burden upon a class. Justice Lawlor has not discussed this objection. The terms of the act, and of the Pharmacist Act to which it refers, satisfactorily show that it was enacted for the purpose of regulation and not for revenue. The charge is denominated "a license fee." It is required to be paid to the state board of pharmacy for use in enforcing this act and the Pharmacist Act also. The latter creates a state board of pharmacy and regulates the business of selling drugs and compounding prescriptions in this state, being undoubtedly a police measure. The two acts are, therefore, supplementary to each other and together constitute the legislative plan for regulating the entire business of selling drugs, nostrums, and ointments. The legislative conclusion that the fees received from the peddlers should be added to the fees paid under the Pharmacist Act, and the whole devoted to the use of carrying out and enforcing the general plan, is a legitimate exercise of its discretion to apportion and apply the fund, in view of the fact that the two laws are to be regarded as one covering the entire subject. This indicates the intent to regulate, rather than to tax. The law comes within the rule thus stated in Plumas v. Wheeler,149 Cal. 763, [87 P. 911]. "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." The legislative judgment as to the amount is conclusive, unless it clearly appears to be wrong. In view of the uses to which the license fees are to be devoted we cannot say it exceeds the amount reasonably necessary.

The objection growing out of the supposed exemption of ex-Union soldiers and sailors has no foundation in fact. As Justice Lawlor shows, there is no exemption from the state license fee. The act of 1905 merely exempts peddlers of all kinds of goods who are honorably discharged ex-Union soldiers and sailors from paying local license fees imposed by county, city, or town ordinances. It has no application to a state license.

I believe that the law in question is valid and I concur in the judgment that the petitioner be remanded.

Sloss, J., and Melvin, J., concurred.