"The plaintiff furnished the land and the seed, advanced the cost of the summer-fallow, paid for the labor in putting in the crop, and paid me for superintending it, then released me from all these liabilities, and leaves me three-fourths of the crop for harvesting it."

The evidence of the inability of the defendant to respond in damages was sufficient. Absolute and complete insolvency need not be shown. The granting of injunctions are, to some extent, matters of discretion, and should be exercised in favor of the party most likely to be injured. (Hicks v. Compton, 18 Cal. 206; Real Del Monte Min. Co. v. Pond Min. Co., 23 Cal. 83, 85.)

The judgment and order appealed from should be reversed.

SEARLS, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are reversed.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[Crim. No. 112. In Bank.-April 14, 1896.]

EX PARTE J. E. HASKELL ON HABEAS CORPUS.

MUNICIPAL CORPORATIONS-HIGH LICENSE TO TRAVELING SALESMENVALIDITY OF ORDINANCE. -An ordinance of a municipal corporation having power to license all and every kind of business transacted or carried on within its limits, may lawfully impose upon traveling salesmen a license of fifty dollars per quarter, although a less amount is imposed upon those who sell at a fixed place of business within the municipality; and such ordinance is not unreasonable, oppressive, nor unlawful in its discriminations.

ID. INTENDMENTS IN FAVOR OF ORDINANCE-POWER OF MUNICIPALITY.— Every intendment is to be indulged in favor of the validity of a munici pal ordinance imposing a license fee for the carrying on of a particular business within its limits, and such ordinance must be very clearly unreasonable or oppressive, or unlawfully discriminating, in order to be held invalid, it being the province and right of the municipality to regulate its local affairs, and the duty of the court to uphold such regulations, unless manifestly transcending the power of the municipality. ID.-POWER TO LICENSE-DISCRIMINATION.-The power to license for purposes of regulation and revenue is a branch of the taxing power, and

involves the right to discriminate between different trades, and between essentially different methods of conducting the same general character of business or trade; and there is no unlawful discrimination, in requiring a special license fee for traveling salesmen, where there is no discrimination in favor of residents or against nonresidents of the municipality.

ID.-EFFECT OF TITLE OF ORDINANCE-CONSTITUTIONAL LAW.-The constitutional provision that acts of the legislature shall embrace but one subject, which shall be expressed in the title, has no application to municipal ordinances.

HEARING in the Supreme Court upon writ of habeas corpus to the marshal of Chico, Butte County.

The facts are stated in the opinion of the court.

D. E. Alexander, and Isaac Joseph, for Petitioner.

Paterson, 26 N. J. L. 298; 280; Boston v. Schaffer, 9 Stodder, 2 Cush. 562; 48

The authority of the board of trustees to impose fees for the purpose of revenue does not warrant their being made so heavy as to be prohibitory. (Ex parte Burnett, 30 Ala. 461; Craig v. Burnett, 32 Ala. 728; Burlington v. Putnam Ins. Co., 31 Iowa, 102; Kitson v. Ann Arbor, 26 Mich. 325; Mason v. Lancaster, 4 Bush, 406; Kniper v. Louisville, 7 Bush, 601.) They have the right to levy a license for regulation, but the fee must be only such as will legitimately assist in the regulation. (Ex parte Frank, 52 Cal. 606; 28 Am. Rep. 642; Freeholders v. Barber, 7 N. J. L. 64; Kip v. State v. Hoboken, 33 N. J. L. Pick. 415; Commonwealth v. Am. Dec. 679; Mobile v. Yuille, 3 Ala. 137; 36 Am. Dec. 441; Bennett v. Birmingham, 31 Pa. St. 15; Cincinnati v. Bryson, 15 Ohio, 625; 45 Am. Dec. 593; Mays v. Cincinnati, 1 Ohio St. 268; Collins v. Louisville, 2 B. Mon. 134; Ward v. Maryland, 12 Wall. 429; Dillon on Municipal Corporations, sec. 609.) Haskell is a merchant, and is entitled to do business in Chico upon the same terms as other merchants. (Mayor etc. v. Althrop, 5 Cold. 559; In re Siebenhauer, 14 Nev. 365; Ex parte Frank, supra; Graffty v. Rushville, 107 Ind. 502; 57 Am. Rep. 128; Benjamin v. Webster, 100 Ind. 15.) The ordinance discriminates against him because he does

not reside in Chico, because he does not sell to the trade, and also because he has no fixed place of business in Chico, and is void. (Const., art. I, sec. 21; Lassen County v. Cone, 72 Cal. 387; Ex parte Frank, supra; County of El Dorado v. Meiss, 100 Cal. 273; Mayor etc. v. Althrop, supra; Budd v. State, 3 Humph. 483; 39 Am. Dec. 189; Wally v. Kennedy, 2 Yerg. 554; 24 Am. Dec. 511; Officer v. Young, 5 Yerg. 320; 26 Am. Dec. 268; Jones v. Perry, 10 Yerg. 59; 30 Am. Dec. 430; Tugman v. Chicago, 78 Ill. 405; Shreveport v. Levy, 26 La. Ann. 671; 21 Am. Rep. 553.) It is not reasonable nor in harmony with the general laws or constitution. (Ex parte Kearny, 55 Cal. 225; Ex parte Hodges, 87 Cal. 162; Ex parte Whitwell, 98 Cal. 73; 35 Am. St. Rep. 152; Ex parte Sing Lee, 96 Cal. 354; 31 Am. St. Rep. 218; 17 Am. & Eng. Ency. of Law, 250.) It contravenes common right in preventing citizens of this state from freely trading with the people of Chico upon the same terms as they trade among themselves, and is against public policy. (Dillon on Municipal Corporations, sec. 325; Ex parte Frank, supra.) It is void because it is. left to the discretion of the recorder whether persons violating it shall be punished with the severest penalty which the city has power to inflict, or whether a light penalty, commensurate with the gravity of the offense, shall be inflicted. (In re Ah You, 88 Cal. 101; 22 Am. St. Rep. 280.) It is also void because its objects are not specified in the title. (Const., art. IV, sec. 24.) It is an exercise of the taxing power, and the municipality has no power to tax property except such as may be situated in the city. (Brennan v. Titusville, 153 U. S. 289-308; Emert v. Missouri, 156 U. S. 319; McCall v. California, 136 U. S. 104.)

F. C. Lusk, for Respondent.

The presumption is that a municipal ordinance is reasonable, and the burden is upon the parties who deny the validity of the ordinance, and it will only be held invalid with extreme caution. (St. Louis v. Weber,

44 Mo. 542; 100 Am. Dec. 324; Ex parte Whitwell, 98 Cal. 79; 35 Am. St. Rep. 152.) If part of an ordinance, or part of a section in it, is invalid, but can be separated from the remainder, the latter can stand and the former be rejected. (Ex parte Christensen, S5 Cal. 211.) There is no unlawful discrimination in the ordinance. A municipality has the right to discriminate between different businesses. (Warren Borough v. Geer, 117 Pa. St. 211; Quartlebaum v. State, 79 Ala. 1; Martin v. Rosedale, 130 Ind. 109; Ex parte Hanson, 28 Fed. Rep. 127; State v. O'Hara, 36 La. Ann. 94; St. Louis v. Spiegel, 8 Mo. App. 478; Cherokee v. Fox, 34 Kan. 16; East St. Louis v. Wehrung, 46 Ill. 394; St. Louis v. Sternberg, 69 Mo. 301; St. Louis v. Bowler, 94 Mo. 634; Machine Co. v. Gage, 100 U. S. 679; Titusville v. Brennan, 143 Pa. St. 648; 24 Am. St. Rep. 580; Ex parte Hurl, 49 Cal. 557; County of Amador v. Kennedy, 70 Cal. 460; Ex parte Heylman, 92 Cal. 492; Ex parte Felchlin, 96 Cal. 360; 31 Am. St. Rep. 223.) The ordinance is not unreasonable or oppressive. (Sipe v. Murphy, 49 Ohio St. 536; Glaser v. Cincinnati, 31 Week. Law Bul. 243; Brooks v. Mangan, 86 Mich. 576; 24 Am. St. Rep. 137.) An ordinance is not void by reason of the punishment imposed, if a case can be conceived where the punishment would not be unreasonable. (Ec parte Miller, 89 Cal. 41; Ex parte Mansfield, 106 Cal. 400.) The provision of the constitution providing that no law shall contain more than one subject, which shall be clearly expressed in the title, has no application to city ordinances. (Tarkio v. Cook, 120 Mo. 1; 41 Am. St. Rep. 278.)

VAN FLEET, J.-The city of Chico is a municipal corporation of the fifth class, having power as such to license, for purposes of regulation and revenue, all and every kind of business transacted or carried on in such. city, and to fix rates of license tax upon the same, and provide for their collection. It has an ordinance which, among other provisions thereof relating to the revenue, has the following:

"Persons, outside of those conducting regular places of business, selling different articles of apparel, dry goods, fancy goods, notions, jewelry, cutlery, groceries, harness, pianos, organs, machinery of all kinds, vehicles, hardware, tinware, mill products, or merchandise of any class or character, to persons not regularly engaged in, or carrying on, such lines of business, whether by sample or otherwise, shall pay a license of fifty dollars per quarter."

Haskell, a traveling salesman for a shirt house in Oakland, was arrested, and is held by the marshal of Chico, upon a warrant issued from the recorder's court of said city, upon a complaint which charges Haskell with a misdemeanor in vending within said city wearing apparel, to wit, shirts by sample, without a license therefor, in violation of the provision of said ordinance above quoted.

The petitioner asks that Haskell be discharged on habeas corpus, upon the ground that the ordinance is void and of no effect for various alleged reasons, and so furnishes no competent authority for his detention.

It is urged, in effect, that the particular provision in question is unreasonable and oppressive, and that it is unequal and unlawfully discriminating. But we are unable to regard it as open to either or any of these objections. A municipal ordinance must be very clearly obnoxious to such objections as those made, or some one of them, before it will be declared invalid by the courts. Every intendment is to be indulged in favor of its validity, and all doubts resolved in a way to uphold the lawmaking power; and a contrary conclusion will never be reached upon light consideration. It is the province and right of the municipality to regulate its local affairs

within the law, of course-and it is the duty of the courts to uphold such regulations, except it manifestly appear that the ordinance or by-law transcends the power of the municipality, and contravenes rights secured to the citizen by the constitution, or laws made. in pursuance thereof. That the ordinance in question violates any such right we are unable to perceive. It