The occupation of soliciting contributions to charitable purposes is clearly so far subject to the police power, that it may be regulated by laws or ordinances providing for a reasonable supervision over the persons engaged therein, and for the application and use of the contributions received to the purposes intended, in order to prevent unscrupulous persons from obtaining money, or other things, under the pretense that they were to be applied to charity, and to prevent the wrongful diversion of such funds to other uses, or to secure them against waste. Measures reasonably tending to secure these ends are unquestionably valid.
If the ordinances in question here were reasonably appropriate for the attainment of these objects, there could be no valid objection to them based on the ground that they deprived persons of liberty, or unduly restricted them in the pursuit of happiness. But they do not merely empower the Municipal Charities Commission to inquire or examine into the character of persons soliciting for charity and withhold permits from all who do not come within fixed standards of character and fitness. They give the commission absolute and arbitrary power to forbid any person from soliciting for charity, regardless of his personal character, worth, or fitness. No standard of character or fitness is set by which the commission is to be *Page 57 guided in giving or withholding permits. The only thing required is that the commission shall find that the "object of said solicitation is worthy and meritorious." Persons of the highest character, desiring to solicit for a worthy cause, might be refused a permit for no reason except the arbitrary will of the commission. Every person has the right, under our constitution, and perhaps without its guarantee, to solicit contributions for a worthy charitable purpose, provided he acts in good faith and honestly applies them to that purpose. The ordinances give the commission power to deprive persons of that right without cause or reason. To the extent that they give this arbitrary power they are contrary to the constitution and void. They come within the principles stated by the supreme court of the United States in Yick Wo v. Hopkins, 118 U.S. 356, [30 L.Ed. 220, 6 Sup. Ct. Rep. 1064], and by this court in Exparte Sing Lee, 96 Cal. 359, [31 Am. St. Rep. 218, 24 L. R. A. 195, 31 P. 245], County of Los Angeles v. Hollywood CemeteryAssn., 124 Cal. 349, 71 Am. St. Rep. 75, 57 P. 153];Schaezlein v. Cabaniss, 135 Cal. 469, [87 Am. St. Rep. 122, 56 L. R. A. 733, 67 P. 755], and Hewitt v. State Board ofMedical Examiners, 148 Cal. 593, [113 Am. St. Rep 315, 7 Ann. Cas. 750, 3 L. R. A. (N. S.) 896, 84 P. 39].
In the Yick Wo case, referring to ordinances prohibiting laundries in wooden buildings except by permission from the board of supervisors, the court said: "They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not only as to places, but as to persons. So that, if an applicant for such consent, being in every way a competent and qualified person, and having complied with every reasonable condition demanded by any public interest, should, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for redress by the judicial process of mandamus, to require the supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their consent, without reason and without responsibility. (118 U.S. 366, [30 L.Ed. 220, 6 Sup. Ct. Rep. 1069].) . . . It does not prescribe a rule and conditions for the regulation of the use *Page 58 of property for laundry purposes, to which all similarly situated may conform" (118 U.S. 368, [30 L.Ed. 220, 6 Sup. Ct. Rep. 1069]). And in County of Los Angeles v. HollywoodCemetery Assn., supra, the court said: "There is a wide difference between regulation and prohibition — between regulatory provisions as a condition imposed for the exercise of a lawful occupation, and making the right itself to depend upon the unrestrained will of the municipality. . . . If the business be lawful, and having no injurious tendency, they cannot say who shall and who shall not exercise the right itself. Under the guise of regulating a business the municipality cannot make prohibition possible by committing to the officers of the municipality the arbitrary power to deny permission to engage in that business." The proper method of regulating a lawful business is indicated in Hewitt v. StateBoard of Medical Examiners, supra, as follows: "The right of the physician to be secure in his privilege of practicing his profession is thus made to depend not upon any definition which the law furnishes him as to what shall constitute 'grossly improbable statements' but upon the determination of the board after the statement is made and simply upon its opinion of its improbability. No definite standard is furnished by the law under this provision whereby a physician with any safety can advertise his medical business; nor is there any definite rule declared whereby after such advertisement is had the board of medical examiners shall be controlled in determining its probability or improbability. The physician is not advised what statements he may make which will not be deemed 'grossly improbable' by the board. No rule is provided whereby he can tell whether the publication he makes will bring him within the ban of the provision or not. . . . (148 Cal. 595, [113 Am. St. Rep. 315, 7 Ann. Cas. 750, 3 L. R. A. (N. S.) 896,84 P. 41].) If a physician's license is to be revoked for 'grossly improbable statements'; if he is to be thereby deprived of his means of livelihood, of his right to practice a profession which it has taken him years of study and a large expenditure of money to qualify himself for, on the ground that he has made 'grossly improbable statements' in advertising his medical business — it is requisite that the statute authorizing such revocation define what shall constitute such statements so that the physician may know in advance the penalty he incurs in making them." Other methods of regulation may also be allowable; but a law *Page 59 or ordinance by or under which a lawful occupation, in itself, when properly conducted, in nowise injurious to persons, property or the public interest, may be absolutely prohibited at the dictation of any official body without other cause than its own will or desire, is beyond the legislative power and to that extent void.
There is a class of cases upon which the respondent relies as contravening the above-stated principles, such, for example, asEx parte Fiske, 72 Cal. 127, [13 P. 310]; In re Flaherty,105 Cal. 558, [27 L. R. A. 529, 38 P. 981], and Barbier v.Connelly, 113 U.S. 27, [28 L. Ed. 923, 5 Sup. Ct. Rep. 357]. It will be found, however, that these cases relate to things which in their nature are or may be injurious to public health, safety, comfort or welfare, and that they do not infringe upon the principles above stated with regard to the regulation of occupations which are both lawful and innocuous. In the Flaherty case the distinction is stated. After holding that an ordinance forbidding the beating of drums upon the streets without a permit from the president of the board of trustees was valid, the court, referring to other cases which seemed to conflict with the decision, and which are similar to the case at bar, said: "But upon closer examination they will be found to go upon a distinction or principle, whether sound or not, that is not applicable to the case at bar. They are based upon the theory that the lawful inherent rights of men cannot be entirely suppressed or destroyed by statute or ordinance, but can only be regulated, and that all regulations of such rights must be uniform" (105 Cal. 565, [27 L. R. A. 529, 38 P. 983]), and again, "At all events, the cases referred to deal with a right. But the proposition that a man has a natural, ingrained, inviolate, common law or constitutional right to beat a drum on the traveled streets of a city has no foundation in reason or authority. As, therefore, it is not a right that may not be entirely suppressed, it may be regulated as the law making power may determine," and that "as it could be suppressed, no one could be heard to complain of an ordinance regulating it because thereby special privileges accrued to particular persons" (105 Cal. 566, [27 L. R. A. 529, 38 P. 983]). The distinction between cases like Ex parte Fiske,72 Cal. 127, [13 P. 310], and the present case, is that in this case the right which the commission has power absolutely to take away is a lawful and innocent occupation which the legislature *Page 60 cannot entirely suppress, and as to which its functions are merely to regulate its conduct and prevent abuses. There are other cases relating to ordinances which, after prohibiting certain things, delegate to some officer or board the power to decide whether or not a given person or subject comes within the terms of the prohibition. These are not in conflict with the principles above stated, nor are they applicable to this case. For these reasons I am of the opinion that the portion of the ordinance in question imposing a penalty upon anyone who solicits contributions for charitable purposes without a permit from the commission, is void. The section of the ordinance prohibiting the sale of any goods donated to charity without first obtaining a similar permit is invalid for like reasons.
I concur in the judgment discharging the prisoner.
Sloss, J., Lawlor, J., and Angellotti, C.J., concurred.