Opinion
Hearing Granted by Supreme Court Jan. 27, 1938.
Appeal from Superior Court, Los Angeles County; Clement L. Shinn, Judge.
Petition by Lewis S. Hart and another for a writ of mandate directed to the City of Beverly Hills, a municipal corporation, and others. Judgment for the respondents, and petitioners appeal.
Reversed, and trial court ordered to issue writ of mandate pursuant to prayer of petition. COUNSEL
Desser & Rau, of Los Angeles (Jack L. Rau, of Los Angeles, of counsel), for appellants.
Richard C. Waltz, City Atty., and C. Richard Maddox, Asst. City Atty., both of Beverly Hills, for respondents.
OPINION
McCOMB, Justice.
This is an appeal by appellants from a judgment in favor of respondents after the trial court sustained a demurrer without leave to amend to a petition for a writ of mandate requiring respondents to issue petitioners a license to hold an auction sale.
The material facts alleged in the petition are:
Andrew Rice, a resident of the City of Beverly Hills, County of Los Angeles, State of California, living in zone R.4, a resident income property zone in the City of Beverly Hills, engaged on June 9, 1937, appellant Lewis S. Hart, a duly licensed auctioneer of the State of California, to conduct an auction sale of his household goods and furnishings located in his residence in the City of Beverly Hills. Thereafter appellant Hart made application to respondents for a license to conduct the afore-mentioned auction sale which was refused upon the ground that there was in effect in the City of Beverly Hills an ordinance reading in part as follows: "* * * provided, further, that no such auction sale for the sale of goods, wares or merchandise, or at which goods, wares or merchandise or personal property is sold, shall be held in any residential district in the City of Beverly Hills, to-wit: in Zones R.1, R1.5, and R.4; and all auction sales except for the sale of real property are required to be held in the retail business district, to-wit: C.3, or in the manufacturing district, to-wit: M.2." Ordinance No. 430, amending Ordinance No. 80 of the City of Beverly Hills.
This is the sole question presented for determination:
Is a municipal ordinance which prohibits an individual from selling his personal property located in his residence by auction sale at said residence a constitutional and valid exercise of the police power of the municipality?
This question must be answered in the negative. The Fourteenth Amendment to the Constitution of the United States of America provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Section 13 of article 1 of the Constitution of the State of California provides in part: "No person shall be * * * put in jeopardy * * * nor be deprived of life, liberty, or property without due process of law."
Both of the foregoing provisions have been construed by our courts as permitting a municipality to pass an ordinance, the effect of which is to take private property without compensation when the ordinance has substantial relation to the public (a) health, (b) safety, (c) morals, or (d) general welfare. Miller v. Board of Public Works, 195 Cal. 477, 490, 234 P. 381, 38 A.L.R. 1479. It is likewise the established law that the courts will unhesitatingly overthrow a municipal ordinance which results in the confiscation in one form or another of a citizen’s property when the ordinance is not a valid exercise of the police power. Curtis v. City of Los Angeles, 172 Cal. 230, 234, 156 P. 462.
It is particularly important that we strictly adhere to and observe this latter rule at the present time when it is a matter of common knowledge that the government--federal, state, and municipal--is continually reaching its tentacles into the field of private domain in an endeavor to wrest from the citizenry their hard-won constitutional guaranties of freedom of life, liberty, and the right to possess property.
It therefore becomes our duty to determine whether the conducting of a single auction sale of personal property by the owner thereof can reasonably be said to affect either the public (a) health, (b) safety, (c) morals, or (d) general welfare. Pacific Palisades Ass’n v. City of Huntington Beach, 196 Cal. 211, 217, 237 P. 538, 40 A.L.R. 782. It needs no argument to demonstrate that the conducting of an auction sale does not have any reasonable relation to the public health, safety, or morals. Therefore, it leaves for consideration the single query of whether it can reasonably be said that such an auction sale has a direct relationship to the "general welfare" of the community.
It is established that aesthetic considerations alone are not sufficient to justify under the police power the enactment of an ordinance, the effect of which deprives a citizen of his property without compensation (Varney & Green v. Williams, 155 Cal. 318, 320, 100 P. 867, 21 L.R.A.[N.S.] 741, 132 Am.St.Rep. 88), and since the only reasons advanced in support of the ordinance under this branch of the police power fall under the class of reasons designated as aesthetic, we are forced to the conclusion that the ordinance may not be supported under that branch of the police power commonly denominated "general welfare."
It is an undoubted right, guaranteed by our Federal and State Constitutions, that every citizen may dispose of his property in such innocent manner as he pleases. Ex parte Quarg, 149 Cal. 79, 80, 84 P. 766, 5 L.R.A.(N.S.) 183, 117 Am.St.Rep. 115, 9 Ann.Cas. 747; People v. Davenport (Cal.App.) 69 P.2d 862. In Ex parte Quarg, supra, 149 Cal. 79, at page 80, 84 P. 766, 5 L.R.A.(N.S.) 183, 117 Am.St.Rep. 115, 9 Ann.Cas. 747, Mr. Justice Shaw says: "The constitutional guaranty securing to every person the right of ‘acquiring, possessing and protecting property,’ refers to the right to acquire and possess the absolute and unqualified title to every species of property recognized by law, with all the rights incidental thereto, and, in connection with the right of personal liberty, it includes the right to dispose of such property in such innocent manner as he pleases, and to sell it for such price as he can obtain in fair barter. * * * These rights are in fact inherent in every natural person, and do not depend on constitutional grant or guaranty. Under our form of government by Constitution, the individual, in becoming a member of organized society, unless the Constitution states otherwise, surrenders only so much of these personal rights as may be considered essential to the just and reasonable exercise of the police power in furtherance of the objects for which it exists. Cooley on Stat.Lim. pp. 68, 244; 1 Barb. on Rights, pp. 122, 284." (Italics ours.)
There can be no question that the sale of property at public auction is an innocent and legal manner of disposing thereof. Dornberg v. City of Spokane, 125 Wash. 72, 215 P. 518, 519, 31 A.L.R. 295; Hayes v. City of Appleton, 24 Wis. 542, 545; Miller v. City of Greenville, 134 S.C. 314, 132 S.E. 591, 592, 46 A.L.R. 155.
Applying the foregoing rules to the instant case, it is evident that the ordinance adopted by the City of Beverly Hills deprived appellant Rice, a citizen of the United States and of the State of California, without just compensation of his constitutional right to dispose of his own property in an innocent and legal manner and is therefore unconstitutional as depriving a citizen of his property without due process of law.
The judgment is reversed, and the trial court is ordered to issue a writ of mandate pursuant to the prayer of appellant’s petition.
I concur: CRAIL, P. J.
WOOD, Justice (dissenting).
I dissent:
A large discretion is vested in the legislative body of the City of Beverly Hills in the matter of the exercise of its police power. The courts should not nullify an ordinance enacted by a city board unless it is palpable that the ordinance has no real or substantial relation to the public health, safety, morals, or general welfare. In many decisions the so-called zoning ordinances have been upheld, ordinances in which cities have been divided into residential, commercial, and industrial districts. In Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 386, 38 A.L.R. 1479, an ordinance made it unlawful for any person to erect within the residential zone any building intended to be used for housing more than two families. The petitioner sought to compel the issuance of a permit to erect a four-family flat dwelling within such zone. In upholding the ordinance the court said: "The establishment of such districts [residential] is for the general welfare because it tends to promote and perpetuate the American home."
Auctioneering has become a well-established and well-defined business. A number of sections of the Civil Code are devoted to the rights and duties of auctioneers and to the manner of conducting sales by auction. The auctioneer may reserve the right of the seller to bid in his own behalf. Civ.Code, § § 1741, 2362, 2363. It is common knowledge that auction sales frequently attract bidders in large numbers and from great distances. In conducting auction sales in private residences a practice has developed which is frequently followed of transferring articles of merchandise from business establishments in the commercial districts to be sold together with the merchandise of the owners of the residences.
In my opinion it was within the discretion of the legislative body to prohibit auctioneering in the residential district. In so doing the city did not deprive petitioner of his property. It merely exercised a reasonable regulation of the manner of the sale of the property.