At the outset I cannot agree with the majority opinion that the activities of petitioner were such as to constitute him a solicitor of memberships “for compensation” under the provisions of said act.
The only evidence in this regard is that of the tax collector of the city of Redding, who testified that petitioner stated to him that his salary would be the same whether he obtained any members or not; that part of his duties were to solicit members but that nothing was said about petitioner being paid for such solicitation. Counsel for respondent testified that petitioner informed him he received a salary for all the services he performed; that a part of his duties was to solicit memberships for his organization; that he made no mention of being paid a fee or special compensation for such solicitation, and that his salary included all of his activities. The trial court in summation of such testimony stated it understood that the salary paid to petitioner would go on whether he obtained members or not. Section VI of the by-laws of the organization relating to the duties of the business manager thereof, and quoted by petitioner in his brief, makes no mention of the solicitation of members as a part of his duties or of compensation to be paid him for such solicitation.
If the construction placed upon the words ‘ ‘ solicit or obtain membership for compensation” by virtue of the judgment of the trial court were to be followed, then any individual within the.limits of the city of Redding who received any compensation from any organization which collected dues, and who might solicit a single membership in such organization, would be guilty of a crime under the ordinance in question. It is difficult to understand how such could have been the intent of the ordinance. The wording, in my opinion, does not lend itself to such interpretation.
The interpretation placed upon the ordinance by the city prior to the charge against petitioner, which, as testified to by the tax collector, was that during the four years subsequent to the adoption of the ordinance only one license fee was collected, and that was from an individual who admittedly received his entire livelihood from a percentage of the monies collected for memberships sold in a particular organization. Prom such testimony it would appear that it was the original intent of the city to prevent racketeering in the solicitation of memberships by one who existed solely by his wits in the sale of fraudulent memberships, that prompted the ordinance.
*539By reason of the conflicting interpretations given to the ordinance, particularly the word “compensation” and to which it is obviously susceptible, an objection upon the ground of uncertainty might well be made. However, petitioner’s contention in this regard appears to be directed to the uncertainty existing between section 1, which prohibits any solicitation in any organization by certain means, and the prohibition in section 2 prohibiting solicitation “for compensation” in any organization which collects dues. These sections would not seem to be irreconcilable. “An ordinance of a regulatory nature must be clear, certain and definite, so that the average man may with due care after reading the same understand whether he will incur a penalty for his actions or not. Otherwise it is void for uncertainty.” (19 R.C.L. 810.) But it cannot be nullified upon the ground of uncertainty if susceptible of any reasonable construction.
The petitioner, in addition to contending that the ordinance in question is uncertain, as previously mentioned, also contends that it is incapable of enforcement without abridging constitutional rights and is in violation of the Bill of Rights.
Respondent’s brief argues (1) that it is a matter of “common knowledge to everyone that in the past, there have been fraudulent solicitations, as well as solicitations by intimidation, threats, force and violence,” (2) that “the public interest is involved in solicitation of members in organizations, particularly labor unions, where fraud, force, violence, menace, threats, etc., are used,” and (3) that “the real test of an ordinance of the nature of the one involved is whether or not the subject matter is a valid exercise of the police power. In other words, the question to be answered is whether soliciting memberships in an organization for compensation may cause injury to the public health, comfort, morals or general welfare.”
If counsel for respondent in so commenting is stating the reasons which impelled the city of Redding to enact the ordinance, then the first and third contentions made, properly would come within the general rule that local authorities are the sole judges of the necessities of local situations calling for such legislation, and that the courts may not determine the question of the necessity of legislation so adopted. Undoubtedly, respondent does not seriously urge its second contention, for obviously to do so is to urge the validity of the or*540dinanee upon the ground of class legislation and thereby insure its invalidity.
That an ordinance is a valid exercise of the police power is a general statement which must be qualified by the facts of a given case, bearing in mind the statement of the United States Supreme Court in the case of Thornhill v. Alabama, 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093], that a penal statute which “does not aim specifically at evils within the allowable area of State control, but on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press ... lends itself to harsh and discriminatory enforcement by local prosecuting officials . . .,” and “results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. ’ ’
Therefore the first test of the constitutionality of such ordinanee is whether or not it prohibits acts proper within themselves. If such is the ultimate result, then the act must fall, even though other acts contained therein properly may be made illegal. “Language prohibiting conduct that may be prohibited and conduct that may not affords no reasonably ascertainable standard of guilt and is therefore too uncertain and vague to be enforced. (Stromberg v. California, 283 U.S. 359 [51 S.C. 532, 75 L.Ed. 1117]; Herndon v. Lowry, 301 U.S. 242, 261-263 [57 S.Ct. 732, 81 L.Ed. 1066]; Lanzetta v. New Jersey, 306 U.S. 451 [59 S.Ct. 618, 83 L.Ed. 888]; De Jonge v. Oregon. 299 U.S. 353 [57 S.Ct. 255, 81 L.Ed. 278] ; Hague v. C.I.O. [307 U.S. 496 (59 S.Ct. 954, 83 L.Ed. 1423) ]; Schneider v. State, [308 U.S. 147 (60 S.Ct. 146, 84 L.Ed. 155)]; In re Harder, 9 Cal.App.2d 153 [49 P.2d 304].) A conviction based upon such a statute cannot stand even though the acts of misconduct in the particular ease could be validly prohibited by properly drafted legislation. (Thornhill v. Alabama, supra; Carlson v. California, [310 U.S. 106 (60 S.Ct. 746, 84 L.Ed. 1104)].)” (In re Bell, 19 Cal.2d 488 [122 P.2d 22].)
Secondly, I disagree with the majority opinion in its construction of the language, “that to some extent compulsion, coercion, intimidation or threat are employed does not detract from its peaceful nature so long as they constitute only economic, moral, or social pressure and not the pressure of violence” as used in the case of In re Bell, supra, to mean that *541anything which is “against the will of a person solicited” whether by physical violence or by “economic, moral, sociál, or any other type of compulsion” savors of “unfair and unwarranted means” to force one to join an organization against his will, and therefore doe§ not come “within the scope of legitimate persuasion.”
It would thereby appear from the wording of the majority opinion that it turns, in a degree at least, upon the assumption that mere solicitation by threat, menace, coercion, or fraud, carries with it a threat of physical violence.
The ordinance in question in the Bell case states in section 3 thereof, that “it is unlawful for any persons to beset or picket the premises of another . . . for the purpose of inducing [an] employee or person seeking employment, by means of compulsion, coercion, intimidation, threats, acts of violence, or fear to quit his or her employment or to refrain from seeking or freely entering into employment.” The words used in section 1 of the Redding ordinance are, “it shall be unlawful ... by force, violence, menace, threat, intimidation, coercion or corrupt means ... to solicit any person . . . to take membership in any organization.” Section 6 also uses comparable language—■ “. . . force, violence, threat, menace, coercion, intimidation or corrupt means in . . . solicitation.” Wherein is the distinction between the words used in the two acts ? The Supreme Court, in the Bell case, further stated that upon such words must be superimposed the question of kind, and as illustrative thereof said: “A picket may point to the possibility of ousting from the union any employee crossing the picket line and thereby compel or coerce him to quit his employment,” and as such compulsion could therefore be moral or economic and not necessarily physical violence, held the section in the Yuba ordinance to be invalid.
In my opinion the wording of the present ordinance falls directly within the rule laid down in the Bell case. The sweeping prohibitions contained in sections 1 and 6 thereof, even though containing acts which the city of Redding might validly prohibit, also contain acts which could not be prohibited, and therefore the section is invalid. It cannot be doubted that in every day life there may be many instances where one is compelled to do or accept certain things against his will.. For instance, when a local merchant, operating, his *542individual stor.e, sells to a large chain after the proposition has been made to him that he should sell. He knows full well that if he refuses he must take the inevitable consequences of financially disastrous competition, and if he so heeds either the direct or implied economic threat and sells, can it then be said that he has not done so against his will and by virtue of economic compulsion and threat? Is that not a present adaption of the situation described by Justice Holmes in his dissenting opinion in 1896, in the case of Vegelahn v. Guntner, 167 Mass. 92 [44 N.E. 1077, 57 Am.St.Rep. 443, 35 L.R.A. 722], when speaking of the competition between two merchants, one long established, one newly arrived, in a town too small to support more than one, said:
‘ ‘ The only debatable ground is the nature of the means. by which such damage may be inflicted. We all agree that it cannot be done by force or threats of force. We all agree, I presume, that it may be done by persuasion to leave a rival’s shop, and come to the defendant’s. It may be done by the refusal or withdrawal of various pecuniary advantages which, apart from this consequence, are within the defendant’s lawful control. It may be done by the withdrawal of, or threat to withdraw, such advantages from third persons who have a right to deal or not to deal with the plaintiff, as a means of inducing them not to deal with him either as customers or servants . . . I pause here to remark that the word ‘threats’ often is used as if, when it appeared that threats had been made, it appeared that unlawful conduct had begun. But it depends on what you threaten. As a general rule, even, if subject to some exceptions, what you may do in a certain event you may threaten to do—that is, give warning of your intention to do—in that event, and thus allow the other person the chance of avoiding the consequences. So, as to ‘ compulsion’ it depends on how you compel. ... So as to ‘ annoyance’ or ‘intimidation.’ . . .”
The majority opinion, in holding that an act of compulsion, intimidation or threat, though only moral, economic or social, to induce a person to become a member of an organization may be prohibited under the police power of the city by virtue of the fact that such intimidation would be against the will of the person solicited is, therefore, in my opinion, directly contra to the rule as laid down in the Bell case and all of the more recent decisions, not only of the courts of' this state but also the federal courts as well. (See *543McKay v. Retail Automobile Salesmen’s Local Union No. 1067, 16 Cal.2d 311 [106 P.2d 373]; J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581 [98 P. 1027, 16 Ann. Cas. 1165, 21 L.R.A.N.S. 550]; Lisse v. Local Union No. 31, 2 Cal.2d 312 [41 P.2d 314]; Pierce v. Stablemen’s Union, 156 Cal. 70 [103 P. 324].)
The majority opinion does not explicitly determine that the business to be regulated by the ordinance in question is so inherently harmful to the general welfare of the community that the administration thereunder may be lodged in the reasonable discretion of the council. Bather it impliedly decides the case upon the ground that the business to be regulated is a lawful exercise of the police power of the city of Bedding in the interest of the general welfare, and that a reasonable standard of qualifications has been set. Such interpretation would appear to be a valid inference by virtue of the citation of the case of Fernel v. State Board of Medical Examiners, 91 Cal.App. 712 [267 P. 561].
If I be correct in my understanding of the conclusion reached by the majority it can be rationalized only by a determination of but one issue, and that is (1) that as the business of soliciting memberships for compensation, whether directly or indirectly, for a chamber of commerce, a luncheon club, a fraternal organization, a labor union, or any other organization which requires the payment of dues by its members, is a lawful occupation and is not inherently harmful to the morals, health or general welfare of the city, and that the provision relating to the necessity for the showing of good moral character on the part of the applicant that he is one who would not likely resort to force, violence, threats, menace, coercion, intimidation or corrupt means, is a proper standard of rules or regulation for guidance by the council, and also as information to a prospective applicant of the qualifications he must show in order to obtain a license.
In the Fernel case the petitioner claimed that the act in question (Medical Practice Act) did not authorize the medical board to decline to grant a certificate because it was not convinced that the applicant was possessed of good moral character, and, in addition, that the board had no jurisdiction to consider such subject. All that the court held therein was that the requirement contained in section 9 of said act, to wit: “every applicant must file with the Board . . . satis*544factory testimonials of good moral character,” was a reasonable condition precedent to the taking of an examination for a license. Further reading of that act discloses that in addition to the above requirement the act also provided for a complete standard of objective qualifications which an applicant had to meet before he could obtain a license to practice medicine in this state. Such case is, therefore, authority only for the one proposition, i.e., a showing of good moral character is a valid prerequisite to the granting of a license to practice medicine in the State of California.
Under the principle enunciated in the Fernel case it cannot be said that proof of good moral character is not a reasonable condition precedent to the granting of a license in so far as the practice of the healing arts are concerned. A similar provision in the present ordinance' is, therefore, undoubtedly valid. But to hold that a showing of good moral character is a valid requirement, is not to say, as in effect does the majority opinion, in following the argument of respondent, that the additional words, “if the council is satisfied that said applicant . . . will not resort to force, violence, threat, menace, coercion, intimidation or corrupt means,” does not add to such requirement of good moral character in that there is only a “slight distinction” between the acts attempted to be prohibited by the ordinance and the requirement of good moral character. From such observation the majority then concludes that a sufficient “standard of qualifications is prescribed.”
My third objection is directed at the last quoted statement.
What facts could be held to be sufficient to prove to the satisfaction of the council that one of good moral character to-day would not commit one of the acts mentioned in the future, and if the council was not satisfied with the evidence so submitted, what additional facts might be produced to satisfy the council? In other words, what might be satisfaction to one might be utter dissatisfaction to another. One test might be applied to one applicant and a different one to another.
In the ease of Hewitt v. State Board of Medical Examiners, 148 Cal. 590 [84 P. 39, 113 Am.St.Rep. 315, 7 Ann.Cas. 750, 3 L.R.A. N.S. 896], the court, in holding a provision of chapter 51, Statutes of 1901, void, stated: “As the provision of the act in question does not define what shall constitute 'grossly improbable statements/ but leaves it to be determined *545according to the opinions of the particular members of the board who happen to constitute it ... it is obvious, if such a provision can be sustained, that it could operate disastrously not only to individual physicians, but upon physicians of a particular school.”
In a later case, Matter of Dart, 172 Cal. 47 [155 P. 63, Ann.Cas. 1917D 1127, L.R.A. 1916D 905], wherein an act not wholly unlike the present one was at issue, the court held unconstitutional an ordinance of the city of Los Angeles, whereby the city council attempted to set up a permit system of charities, and stated: “Can the municipal authorities of a city arbitrarily say what person or what institution may or my not engage in charitable work dependent wholly or in part upon voluntary contributions from the public? Unhesitatingly we answer that this cannot be done, that it constitutes an attempt to use the police power in an arbitrary, unreasonable, and oppressive manner. It necessarily contains an assertion of the power to prohibit and suppress vocations and occupations. . . . The power to pass reasonable regulations in such a case bears no relationship to the power to prohibit or suppress.” Mr. Justice Shaw, in his concurring opinion, added the further comment that “no standard of character or fitness is set by which the commission is to be 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 S.Ct. 1064], and by this court in Ex parte Sing Lee, 96 Cal. [354] 359, [31 Am.St.Rep. 218, 24 L.R.A. 195, 31 P. 245], County of Los Angeles v. Hollywood Cemetery Assn., 124 Cal. [344] 349, 71 Am.St.Rep. 75, 57 P. 153]; Schaezlein v. Cabaniss, 135 Cal. [466] 469, [87 *546Am.St.Rep. 122, 56 L.R.A. 733, 67 P. 755], and Hewitt v. State Board of Medical Examiners, 148 Cal. [590] 593, [113 Am.St.Rep. 315, 7 Ann.Cas. 750, 3 L.R.A.N.S. 896, 84 P. 39]____
“The proper method of regulating a lawful business is indicated in Hewitt v. State Board 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, ... 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 or ordinance by or under which a lawful occupation, in itself, when properly conducted, in no wise 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.”
In the light of the Hewitt and Dart cases can it be said that the individual and personal satisfaction of the members of the council of the city of Redding constitutes a more reasonable standard of qualifications to be met by an applicant than the provisions of the ordinances in such cases? Or in any event, can the personal satisfaction of the council ever *547be made the criterion of the right to engage in a lawful business ?
In my opinion it must be admitted that by the wording of the Redding ordinance it is a manifest attempt to confer upon the council of the city of Redding the power to grant or deny a license to an applicant arbitrarily no matter what may be the present facts which may be submitted by the applicant for the purpose of obtaining a license. Under the wording of such ordinance subjective objections could be raised to an applicant for almost any personal reasons conceivable, be it good or bad, thereby resulting in a denial to him of the privilege of having an equal opportunity with others to make an honest livelihood. Under such unbridled authority unjust discrimination may be made because of nationality, religion, political adherence, or any other real or fancied dissatisfaction. Such a delegation of arbitrary authority is contrary to the basic principles upon which American liberties are founded. The right of citizens to pursue any lawful business or vocation in any manner not inconsistent with the equal rights of others must be free to all alike and upon the same conditions.
Assuming that an applicant with an unblemished record was denied a license on the basis that the council- was not satisfied that he would not resort in the future to the acts prohibited, what, then, might be included in a petition to the courts to show that the council was not in fact satisfied he would not use various means prohibited in the solicitation of memberships? As the question of satisfaction is one which could exist only in the minds of the members of the council, how then can it be construed to be an objective standard of qualifications? Is that not the very situation which the Supreme Court of the United States condemned and found to be invalid in the case of Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220], when, in ruling upon certain ordinances passed by the Board of Supervisors of the City and County of San Francisco granting to itself the power to prohibit the operation of a laundry in a wooden building, the court stated:
“There is nothing in the ordinances which points to such a regulation of the business of keeping and conducting laundries. They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the. *548circumstances 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 required 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. The power given to them is not confined to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint. ’ ’
See, also, Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R 1352]. .
The case of Riley v. Chambers, 181 Cal. 589 [185 P. 855, 8 A.L.R. 418], is relied upon by respondent and quoted with approval in the majority opinion. However, the Riley case would seem to be directly contra to the purposes for which it is cited. It holds (1) that the right to engage in a lawful occupation cannot be taken away under the guise of regulation but that such business (real estate broker) may be regulated in the interest of the public even though such regulation involves a degree of limitation upon the exercise of the right; (2) that the powers of the Real Estate Commissioner as set forth in the act are not arbitrary in that to deny a license “there must exist facts which reasonably justify his conclusion that the applicant is not of good character and reputation.” (Italics added.) The court therein further held that as the single and primary purpose of the act was to require that real estate brokers “be honest, truthful and of good moral character,” the prerequisite of written applications accompanied by a certificate of good character was a reasonable requirement, and that if the commissioner should decide to refuse a license, such refusal must be based on existing facts which reasonably justify such conclusion.
In the present ease the ordinance under consideration contains no requirement as to existing facts. To the contrary the prohibition against one “likely to” commit the acts mentioned compels the council to speculate upon what may or may not happen in the future. In other words, to leave *549the realm of present fact and by assuming to look into the future, make a present finding, and upon such ethereal facts to grant or deny a license. How can it be said that belief or mere suspicion as regards an act which may or may not take place in the future, is a valid enumeration of conditions to which all persons similarly situated may knowingly conform and thereby qualify for a license? How can it be said that the inherent right of an American citizen to engage in a lawful occupation can be subjected to the whim and caprice of a subjective belief or suspicion in the minds of a city council, or anyone else? Obviously such a provision is impossible of execution.
No case has been cited nor has one been discovered holding that mere suspicion, surmise, fear or belief concerning what an applicant for a license may or may not do in the future would warrant a refusal thereof. To the contrary, the only cases found in which the courts have passed directly upon such questions have been uniformly in accord with the decision in the case of State ex rel. Haddad v. Charleston, 92 W.Va. 57 [114 S.E. 378, 27 A.L.R. 323], wherein the court held that a council may not refuse a license upon the bare fear or surmise that an applicant, if a license were granted to him, would violate any of the conditions imposed by the ordinance. Also, see, People v. Hilliard, 50 N.Y.S. 909; Hipes v. State, 18 Ind.App. 426 [48 N.E. 12].
In the case of Gates v. Haw, 150 Ind. 370 [50 N.E. 299] the court, recognizing the impossibility of such provisions, stated that as “the things forbidden in the section relate to acts and things that may transpire after the grant of the license, it would be unreasonable to suppose that a trial of such questions was intended to precede the granting of the license.”
A cursory examination of the Business and Professions Code, under which the Biley and Fernel cases arose, will convince the examiner that every act set forth therein regulating and licensing a business or profession has as an integral part thereof certain objective requirements and standards as of the present which the applicant must meet before a license will be issued. Such legislative acts come squarely within the rule that:
“An ordinance forbidding the conducting of certain kinds of business without permission of council . . . which does not prescribe any rules or conditions with which the applicant *550must comply, or by which the council is to be governed in determining whether the permit will be granted or refused, does not establish a uniform regulation, but on the contrary, vests the council with an arbitrary discretion, which it may exercise in favor of one citizen and against another, although the circumstances may be practically the same. ’ ’ (McQuillan on Municipal Corporations, vol. 3, p. 667.)
If, then, the business to be regulated by the ordinance in question is a lawful occupation, the case of In re Blanc, 81 Cal. App. 105 [252 P. 1053], would appear to be controlling. The court there stated:
“In any case the authority to withhold a permit to engage in lawful business, to be sustained, must be regulated by provisions of the law which are reasonable and which apply to matters of conduct upon the part of the applicant in some way affecting the health, morals, or safety of the community. The law must fix standards with such certainty that the citizen may be apprised of their requirements, and it is not enough that the commissioners may establish their own conditions. If they have the power to act regardless of any legislative guidance and control, the authority conferred is arbitrary and unlawful.” (Italics added.)
It is impossible for me to conceive how and in what manner the morals, health or general welfare of this court, or those of the community, would be affected by solicitation to join the Sacramento Chamber of Commerce, the Blank Luncheon Club, the California Conference of Judges, or a. Union of the California State Employees. Nor can I conceive of anyone seriously so contending. And if this be true, how, then, can the plain, unambiguous language of the Blanc case, that the law must establish definite standards, be avoided ?
It was also held in the later case of South Pasadena v. San Gabriel, 134 Cal.App. 403 [25 P.2d 516], wherein the court had before it an ordinance requiring a permit to drill for water, oil, etc., that:
“Where a business is lawful, and permits for its inauguration are required, an ordinance providing the requirement must contain rules and regulations to be followed by the officer or officers who consider applications for permits.” (Italics added.)
That California is not alone in this regard is evidenced by the statement of the general rule found in 12 A.L.R. 1436:
*551“The generally accepted rule is to the effect that a statute or ordinance which vests arbitrary discretion with respect to an ordinarily lawful business, profession, appliance, etc., in public officials, without prescribing a uniform rule of action, or, in other words, which authorizes the issuing or withholding of licenses, permits, approvals, etc., according as the designated officials arbitrarily choose, without reference to all of the class to which the statute or ordinance under consideration was intended to apply, and without being controlled or guided by any definite rule or specified conditions to which all similarly situated might knowingly conform,—is unconstitutional and void.”
The majority opinion, in conclusion, states that “petitioner may not complain of the possibility of arbitrary or discriminatory conduct on the part of the council in passing upon applications for licenses or that it might deny such applications on the ground that the applicant was likely to resort to force, violence, etc.,” since petitioner made no application to the council for a license and thereby gave it no opportunity to determine his qualifications. “Proof of an abuse of power . . . has never been deemed a requisite for attack on the constitutionality of a statute . . . the rule is not based upon any assumption that application for the license would be refused. . . . One who might have had a license for the asking may therefore call into question the whole scheme of licensing when he is prosecuted for failure to procure it. ...” (Thornhill v. Alabama, supra); Uhden, Inc. v. Greenough, 181 Wash. 412 [43 P.2d 983, 98 A.L.R. 1181].)
It is true, as the majority opinion states, he was not charged with a violation of section 1, which makes solicitation by force and violence a crime, and it is also true that he was charged with failing to secure a license in accordance with section 2. It is to be noted, however, that the last mentioned section provides “it shall be unlawful ... to solicit membership for compensation . . . without first having procured a license ... as in this ordinance provided.” (Italics added.) Obviously, then, one must turn to the provisions in the ordinance relating to the procedure to be followed by an applicant desirous of obtaining a license. Such provisions are that an application shall be made in writing to the council (section 4); that such application shall be filed with the clerk at least one week prior to the meeting of the council *552at which it is to be heard (section 5), and at such hearing the council shall determine to its satisfaction whether or not the applicant is not likely to use force, violence, threat, menace, coercion, intimidation or corrupt means in his proposed work of solicitation (section 6).
By virtue of such reference in section 2 to the procedure, as set forth elsewhere in the ordinance, all sections relating thereto must be read in conjunction with each other.
The majority opinion states that even though it be assumed that the provision relating to the satisfaction of the council as to the possibility of an applicant using force, violence, threat, menace, coercion, intimidation or corrupt means, is unreasonable and uncertain because it involves speculation as to what one might do in the future, by virtue of the saving clause contained in the ordinance, the provision with respect to a showing regarding the use of such acts may be eliminated, and the balance of the ordinance, including sections 2, 4, and 7 under which petitioner was convicted, may stand as valid. However, as previously noted, by virtue of the reference in section 2 and to other sections within the ordinance, the present ease is taken out of the rule laid down in the Bell ease that if valid and invalid sections of an ordinance be severable, the valid portions may stand if complete within themselves. Insofar as the present ease is concerned it would be of little consequence whether one or more innocuous sections of the ordinance were valid if the provision relating to the procedure necessary to acquire an application is held to be invalid. Assuming that only that portion of section 2, which prescribes that it shall be necessary to first obtain a license to solicit, be valid, the question of how to obtain a license still remains, and if section 6 be invalid, then neither regulation nor rule, whether valid or invalid, can be found in the ordinance, and the ultimate result is the same.
Even assuming that the conclusion of the majority that speculation to the subjective satisfaction of the conscience of the council is a reasonable standard of qualifications for the guidance of such body, cannot it be said that the wide difference of opinion between the construction placed upon the words, force, violence, threat, menace, coercion, intimidation or corrupt means by the majority and the construction applied to the same words by the Supreme Court in the Bell case is a very practical illustration of the necessity for *553the rule that if an average man, after reading a regulatory-ordinance with due care, cannot understand whether he will incur a penalty or not, then such ordinance is void for uncertainty. (19 E.C.L. 810.) Surely a layman is not to be held to a higher degree of understanding of the legal implication of his acts under such an ordinance than the degree of misunderstanding with which the Supreme Court and the majority of this court view the same language. If there can be no unanimity of interpretation of such regulatory language by the courts, surely it cannot be said that the average individual not schooled in the law can read the same with understanding and readily conclude whether he will incur a. penalty or not.
In my opinion, the ordinance viewed from every perspective is void upon its face, and therefore it was not necessary for petitioner to seek a license under it to attack its constitutionality. (Lovell v. Griffin, 303 U.S. 444 [58 S.Ct. 666, 82 L.Ed. 949].)
The underlying viciousness of such an ordinance is in the uncontrolled and arbitrary suppression which may be exercised through personal whim and caprice, thereby effectively suppressing legitimate business activity. It is an evil inherent in the licensing system. The power of the licensing body is pernicious not merely because of a sporadic abuse of the power but more so because of the pervasive threat inherent in the very existence of the power. The existence of .an ordinance which readily lends itself to such harsh and discriminatory enforcement results in a continuous restraint of everything which reasonably might be regarded within its purview. (Thornhill v. Alabama, supra.) This does not mean that our constitutional guarantee of liberty amounts to an unrestrained disregard of the rights of others. Such guarantee only implies an absence of arbitrary restraint and does not deny to government the power to provide such restrictions upon one’s acts as are reasonable and imposed in the interests of the community.
The business of soliciting memberships in organizations being a lawful occupation, the power of a municipality to regulate such a business is limited to the exercise thereof, and such regulation must be by fixed rules and regulations and cannot be left to a subjective determination of the question to the personal satisfaction of a city council. Other*554wise it thus could be made the instrument of arbitrary suppression of free enterprise. Denial of an application under the Redding ordinance would amount to a conviction upon a charge neither made nor proven, and would be an absolute denial of due process. Such uncontrolled official suppression cannot be made the substitute for the duty to maintain order in connection with the exercise of the right. (Hague v. C.I.O., 307 U.S. 496 [59 S.Ct. 954, 83 L.Ed. 1423].)
That another unfortunate effect of the ordinance is to confer upon the City Council of Redding the power to determine the extent to which the ordinance will be operative is well illustrated by the record in this ease. The tax collector testified that more than forty notices were sent out and in each instance it was either a labor organization or an individual connected with such an organization to whom the notice was addressed. The only limitation upon the exercise of such arbitrary power exists solely in the consciences of the present members of the council. The succeeding members of the council might have an entirely different view, i. e. instruct the tax collector to send notices only to veteran organizations, fraternal bodies or luncheon clubs. It is not enough to say, as does the majority opinion, that it must be presumed that the council will act properly. It is not a question of whether the power conferred will be properly exercised, but whether an ordinance which attempts to grant such sweeping arbitrary power is valid. If it is not, then it is no answer to say that it will not be abused. The mildest form of despotism has no place in our constitutional government. In a nation existing under a government of laws the conduct of its citizens cannot be subjected to the arbitrary will of either an official or . an official body.
A petition for a rehearing was denied April 11, 1944. Peek, J., voted for a rehearing.