In Re Lowenthal

[201]

TYLER, P.

J.

Habeas corpus.

Petitioner was accused of the violation of a certain ordinance of the city of Fresno which imposes certain restrictions upon the sale of uncured and uncooked meats. On application to this court he was granted a writ of

habeas corpus

by which he seeks to have determined the legality of his arrest and detention. From the return filed herein it appears that petitioner was charged in the police court of the city of Fresno with the violation of Ordinance 1320 of said city as amended by Ordinance 1327 which declares in substance that it shall be unlawful and a misdemeanor, punishable by fine or imprisonment, or both, for any person to sell or offer for sale any uncured or uncooked meats, or to remove the same from any established place of business in said .city, or to keep open for business any place where such meats are sold or offered for sale between the hours of 7 o’clock P. M. and 7 o’clock A. M. of the following day, or on any Sunday. That petitioner violated said ordinance and was arrested and now is held upon such charge by respondent the chief of police of said city. Petitioner seeks his release upon the ground that the ordinance which he is charged with violating is invalid and void for the reason that it is in conflict with the California Meat Inspection Law, and, therefore, contravenes the provisions of section 11 of article XI of the constitution. The law invoked was approved June 3, 1921 (Stats. 1921, p. 1269). In substance it provides that the director of agriculture is given supervision over all establishments used in the business of slaughtering and preparing animals for food purposes in the state of California, except establishments under the supervision of an inspection department of any chartered or incorporated city where inspection is made by certain qualified officers or where inspection is maintained by the bureau of animal industry of the United States department of agriculture, or under and in accordance with a county meat inspection ordinance. The state director is also given broad powers to provide suitable rules and regulations to insure a healthful, wholesome, and safe meat supply for the state of California. Section 8 of the act expressly inhibits any further restrictions than those imposed by the act itself on the sale of meats. It is conceded that the city of Fresno has never