In Re Dondero

HALL, J.

Upon application of petitioner a writ of

habeas corpus

was issued out of this court, to which a return has been made by the chief of police of the city and county of San Francisco. From the record thus made up it appears that the petitioner has been charged, convicted and sentenced for violating section 197 of ordinance No. 1008 (new series) of the board of supervisors of the city and county of San Francisco. It is not disputed but that the complaint is sufficient to charge an offense, if the section of the ordinance is valid. The only question to be determined by this court is as to the validity of the provision of the ordinance for the violation of which petitioner was convicted. The section is as follows:

“Section 197. It shall be unlawful for any person, firm or corporation hereafter to construct any building or premises to be used as a stable for horses, mules, cows or other animals without first obtaining a permit from the board of supervisors and the board of health, specifying the name of the permittee and the location of building to be used as a stable, and the number of animals intended to be kept therein.

“It shall be unlawful for any person, firm or corporation to maintain as a stable for horses or mules any existing structure not used at the date of the passage of this ordinance for stable purposes, without first obtaining a permit from the board of supervisors and board of health, specifying the name of the permittee, the location of the building or premises to be used as such, and the number of animals to be kept therein.”

Petitioner was charged with having constructed and maintained, at a time subsequent to the enactment of the ordinance, a stable for horses without first obtaining a permit from the board of supervisors and the board of health.

It is claimed by petitioner .that the ordinance is invalid, first, because it makes the right to construct and maintain a stable dependent upon the permission of the boards of supervisors and.health, which permits may be granted or withheld at the discretion of said boards, to be exercised upon each case; and second, because it discriminates between stables in

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