In Re McKeon

[224]

TYLER, P. J.

Petitioner was charged with violating ordinance No. 3.0412 of the city and county of San Francisco relating to the payment of an inspection fee in the handling and sale of foodstuffs for human consumption. It appeared at the trial that petitioner was engaged in the retail butcher business in San Francisco; that his premises had been by the board of health, and though demand had been made upon him for payment of the inspection fee of $6, the amount provided for in the ordinance, he had refused to pay the same. The court found him guilty as charged and a fine of $25 or an alternative of five days in the county jail. Petitioner appealed his conviction to the appellate division of the superior court, contending that the ordinance fixing the fee was illegal, unconstitutional, discriminatory and in violation of the federal and state Constitutions, and in direct conflict with the municipal charter. He also contended that the ordinance does not license nor provide for any specific type of inspection and that it is clearly and avowedly a revenue measure. The ordinance in. question, among other things, provides in substance that for the purpose of defraying the cost of regulation and inspection of the premises of any person, firm or corporation engaged in the conduct or operation of the handling, manufacturing or sale of foodstuffs, with certain specified exceptions, a fee of $6 per annum shall be imposed.

The main contention of petitioner is that said ordinance is in direct conflict with section 24 of the charter of the city and county of San Francisco under the provisions of which the ordinance was adopted. -This section empowers the supervisors to regulate by ordinance the issuance of licenses or permits for the operation of businesses which affect the health and certain other conditions of the city and county, It provides that such ordinances shall fix the fees to be charged, which shall not be less than the cost of regulation and inspection. It further provides that the ordinance shall specify the department to make the necessary examination and inspection before acting upon the application for a permit. It also contains an excepting clause to the effect that no license tax shall be imposed on any seller or manufacturer of goods, wares or merchandise operating at a fixed place of business such as requires permits or licenses in accordance