Hart V. City Of Beverly Hills

HOUSER, J. From the record herein, it appears that by the terms of a zoning ordinance, a specified portion of the City of Beverly Hills is set apart as a residential district. In substance, by the terms of a separate ordinance of said city it is provided that no auction sale of personal property shall be held in such an area, but that "all auction sales except for the sale of real property are required to be held in the retail business district, . . ." It further appears that Andrew Rice maintains his home in a residential district of said city; that at a time after said last-mentioned ordinance became effective and was in force, he employed one Lewis S. Hart to conduct at said residence an auction sale of certain household goods of which Rice was then the owner, -- in pursuance of which Hart made application to the said city for a license to conduct said auction sale at the home of said Rice, and thereupon,  in proposed payment thereof, tendered to the said city the sum of $10 which was the appropriate fee for that privilege, in accordance with the requirements of the said ordinance. The said city refused to accept the fee so tendered, or to issue to said Hart a license for which he had thus applied. Thereupon, on the application of the said Rice and Hart, an alternative writ of mandate was issued out of the superior court in and for the county of Los Angeles, by which the respondent city and its proper officials were required either to issue to the said petitioners a license to sell the aforementioned personal property at auction, or on a date specified, to show cause why they should not do so. A general demurrer to the application for the writ which was interposed by the said defendants was sustained "without leave to amend". It is from the ensuing judgment that the instant appeal has been presented to this court.