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he determines that the applicant (1) is of bad moral character; or (2) has failed to comply with any of the other provisions of the ordinance; or (3) has been convicted of an offense involving moral turpitude. Section 13 provides that a violation of § 9 is a misdemeanor, punishable by a fine of not more than $500, or imprisonment for not more than six months, or both.

Appellants were convicted of violating § 9, and each was fined $250. They appealed to the Superior Court of California, in and for the County of San Diego, Appellate Department, where the judgments were affirmed. 101 Cal. App. 2d Supp. 912, 226 P. 2d 87. That court, by allowing an appeal to this Court, confirms our understanding that no further review was available in the California courts. Accordingly, we noted probable jurisdiction. 28 U. S. C. § 1257 (2).

sheriff which, when completed, will contain full personal information concerning the applicant.

"Upon obtaining a permit as herein required the holder of such permit shall be entitled to an identification card of such design, and bearing such number as the sheriff may prescribe, upon payment of a fee of $1.00 annually, therefor, which shall be paid by the applicant to the tax collector and shall be due on the 1st day of June of each year. Such card shall be carried by the permittee during all business hours and shall not be transferable.

"Each applicant for a permit shall be examined by the sheriff as to his knowledge of the provisions of this ordinance, the Vehicle Code, traffic regulations and the geography of the county, and if the result of the examination is unsatisfactory he shall be refused a permit. The sheriff may deny the application or having issued the permit may revoke the same if the sheriff shall determine that the applicant or taxicab driver is of bad moral character or is guilty of violation of any of the provisions of this ordinance or of any lawful regulation promulgated pursuant thereto or has been convicted of any offense involving moral turpitude. . . .

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2 See Cal. Penal Code, § 1466; Cal. Const., Art. VI, § 4; People v. McKamy, 168 Cal. 531, 143 P. 752; People v. Reed, 13 Cal. App. 2d 39, 56 P. 2d 240.

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Of the multiple errors assigned, only one need be considered, for it disposes of the case: That the California courts erred in holding that § 9 of Ordinance No. 464, as construed and applied to this complaint, does not exceed the constitutional limits of the power of San Diego County to regulate foreign commerce. This question was raised in the trial court by motion for arrest of judgment, and was treated as properly in issue by both California courts. Clearly they rejected, as a matter of California law, appellee's contention that the constitutional questions were not properly presented because appellants had failed to exhaust the administrative or other judicial remedies allegedly available for review of the denial of the driver's permits, the Superior Court saying: ". . . we will have to decide whether the ordinance is valid as tested by the commerce clause . . . We are, of course, bound by this determination of California law. It is therefore unnecessary to consider whether there was available to appellants any effective method to test in the California courts the constitutionality of the denial of their permits, or whether-if such remedies were available-the failure to exercise them would preclude the defense of unconstitutionality in this criminal prosecution.

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The case was tried on a stipulation of facts. It is not disputed, therefore, that appellants applied for the driver's permits required by $9 of the ordinance. These applications were denied, although the record does not show the reasons for the denials. The Superior Court stated: "Each of the defendants had applied for and been

3 Opinion of the Superior Court, Appellate Department, 101 Cal. App. 2d Supp. at 914, 226 P. 2d at 89.

Since appellants are complaining of the denial of the permits, not of exaction of the $1 fee, we assume, without deciding, that San Diego County can constitutionally require a $1 fee for the identification card, on the theory that the $1 is reasonably calculated to reimburse the County for the costs of administering its valid traffic regulations.

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denied the license [permit] required by the ordinance in question." No issue was made as to the sufficiency of the application, and the opinion makes no point of any irregularity in applying. Thereafter, appellants, on the advice of counsel, continued nonetheless to transport persons by taxicab to and from Mexico across the unincorporated territory of the County. It is this transportation, after denial of the driver's permits, for which appellants are being prosecuted in this case.

The stipulation further discloses that appellants neither picked up nor discharged passengers in San Diego County. Their only operations in the County consisted of driving passengers through the County, to and from Mexico. So far as the record shows, appellants are engaged solely in foreign commerce. Thus it is clear that San Diego County, by refusing to issue the driver's permits, is attempting by regulation to exclude appellants from transporting persons in foreign commerce across San Diego County unless they meet the qualifications for drivers established by the ordinance. The issue is whether this exclusion can be reconciled with the constitutional delegation to Congress of the power to regulate foreign


Generally, it is well settled that the power to regulate foreign commerce is lodged in the Federal Government. U. S. Const., Art. I, § 8. Of course, this does not mean that the states are powerless in all cases to take reasonable measures to protect their legitimate interests." For example, in the absence of conflicting congressional

Union Brokerage Co. v. Jensen, 322 U. S. 202, 211-212: "In the absence of applicable federal regulation, a State may impose non-discriminatory regulations on those engaged in foreign commerce 'for the purpose of insuring the public safety and convenience;

a license fee no larger in amount than is reasonably required to defray the expense of administering the regulations may be demanded.' Sprout v. South Bend, 277 U. S. 163, 169."

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legislation, we assume that San Diego County might require that loads should not exceed a reasonable minimum weight and that, if appellants violated such regulation, the County could properly prohibit them from driving their taxicabs across the County."

The burden, of course, is upon appellants as challengers of the validity of the ordinance to establish its unconstitutionality. That burden is met prima facie when they show that the ordinance exacts payment from foreign commerce of fifty dollars ($50) for an operator's license, note 10, infra, plus the driver's permit. The stipulated facts show the foreign commerce; the opinion of the trial court shows that appellants relied upon the $50 license fee as an unconstitutional burden." Thereupon the government body, seeking to regulate, must make it affirmatively appear in some way that the regulation is directed toward an incident subject to state control. Cf. Interstate Transit, Inc. v. Lindsey, 283 U. S. 183, 186; Ingels v. Morf, 300 U. S. 290, 294; Clark v. Paul Gray, Inc., 306 U. S. 583, 599. A taxing municipality must show, for example, that the tax on interstate commerce is in

6 Because the regulation here attacked should fall in any event, it is not necessary to consider what, if any, effect the existing federal legislation might have on the validity of this ordinance. See 49 U. S. C. (1946 ed.) § 303 (b) (2). See also 49 CFR (1949 ed.) § 192.2.

7 South Carolina State Highway Department v. Barnwell Bros., Inc., 303 U. S. 177. Cf. Morf v. Bingaman, 298 U. S. 407; Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653.

8 The opinion reads in part: "The defendants . . . advance the following contentions: . . . That the fifty dollar license fee is an unreasonable burden on foreign commerce. . . . The defendants contend that the fifty dollar annual license fee is an unreasonable burden on foreign commerce. There is no evidence in the stipulated facts as to the cost of enforcing the Ordinance, and, in the absence of such evidence, the Court will assume that the fee was reasonable." This objection was pressed throughout the appeal in the Superior Court and in this Court.

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tended to compensate for facilities provided by the state. Aero Mayflower Transit Co. v. Commissioners, 332 U. S. 495, 505; Capitol Greyhound Lines v. Brice, 339 U. S. 542; see Elgin v. Capitol Greyhound Lines, 192 Md. 303, 310, 318, 64 A. 2d 284, 288, 291-292. This does "not remotely imply that the burden is on the taxing authorities to sustain the constitutionality of a tax. But where the power to tax is not unlimited, validity is not established by the mere imposition of a tax." Mullaney v. Anderson, 342 U. S. 415, 418.

While this permit might have been properly denied for an adequate state reason and not for lack of the $50 operator's license, it is incumbent on the State (or, in this case, the County) to state that reason at the trial. Appellants need not, and as a practical matter could not, explain why the Sheriff of San Diego County denied their permits. The alternative to requiring explanation by the County of the reason for refusing a license would be to compel the applicants to prove their compliance with all valid requirements. Thus, assuming that the remainder of the ordinance is valid, they would be compelled under the terms of the ordinance to show, for example, that the Sheriff believes that they are of good moral character, and that they have never been convicted of an offense involving moral turpitude. In view of the fact that only the County through its officers can know the reasons for denial of the permits, and can, by placing these reasons on the record, narrow the issues to manageable proportions and give appellants a fair opportunity to present their objections, the burden of going forward with this evidence must rest on the County.

In this case, San Diego County has offered no explanation for its action. The record shows no basis for any conclusion by us. Cf. Hooven & Allison Co. v. Evatt, 324 U. S. 652, 658. We cannot determine, on this record, whether the Sheriff denied the permits because he had

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