In Re Hadeler

California Court of Appeal Apr 11, 1923 No. Crim. No. 1120.Published

Before: Richards, Sure, Tyler

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Holding. The court held that the San Francisco board of supervisors lacked the authority to impose license fees on grocery stores because the city charter expressly prohibited such charges on businesses not requiring police permits, notwithstanding the city's general police powers under the state constitution.

Issues

Whether the San Francisco board of supervisors has the power to impose license fees on grocery stores despite charter prohibitions.
Whether the state constitution's grant of police power overrides specific charter limitations on the imposition of license taxes.

Disposition. granted

Quotations verified verbatim against the opinion

“the board of supervisors of the city and county of San Francisco have no power to impose the license charge or fee upon the petitioner as a condition of engaging in the grocery business in said municipality”

“said ordinances, in so far as they attempt so to do, must be held to be void.”

RICHARDS, J.

The petitioner herein was convicted of a violation of Ordinance No. 5398, New Series, as amended by Ordinance No. 5490, New Series, of the city and county of San Francisco. The petitioner conducts a grocery-store in the city and county of San Francisco. Under the above-mentioned ordinances any place used for the handling, manufacturing, or sale of foodstuffs in said municipality is required to be inspected by the board of public health to determine whether it is sanitary and in order to do business is required to have issued to its proprietor a certificate by the said

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board of health upon such inspection, which certificate must be annually renewed. Section 2 of the amended ordinance provides that “for the purpose of defraying the cost of making such inspection and issuing the certificate provided for in this ordinance, a fee of five dollars is hereby imposed and shall be collected by the Board of Health prior to the issuance of such certificate. ’ ’ The petitioner having failed and refused to pay said inspection fee, was arrested, tried, and convicted of a violation of said ordinances as above stated. The sole question presented upon his application for this writ is as to the power of the board of supervisors of the city and county of San Francisco to impose upon those who engage in the grocery business the license tax, fee, or charge provided for in these ordinances, and which the petitioner has refused to pay.

In support of his contention herein the petitioner directs our attention to the case of

Rapp & Son

Kiel,

159 Cal. 702 [115 Pac. 651], wherein the provisions of the charter of the city and county of San Francisco relating to the power of the board of supervisors in the matter of the imposition of license fees and taxes were the subject of review. Subdivision 15 of section 1, chapter 2, article II of said charter provides that the board of supervisors shall have power “to impose license taxes and to provide for the collection thereof; but no license taxes shall be imposed upon any person, who, at any fixed place of 'business in the City and County, sells or manufactures goods, wares or merchandise, except such as require permits from the Board of Police Commissioners as provided in this Charter.” It is conceded that the keepers of grocery-stores are not within the enumerated list of persons who are required to obtain permits from the board of police commissioners under the provisions of chapter 3 or of section 7 of chapter 4 of article VIII of said charter, and hence do not come within the exception in the above-quoted subdivision. The case of

In Re Hadeler

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RICHARDS, J.

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