City & County of San Francisco v. Larsen

SHAW, J.

This action was begun to recover of the defendant the sum of forty-two dollars, claimed to be due from him to the plaintiff for license-taxes imposed upon him for keeping a restaurant in the city for the period of six months, ending December 31, 1909. The court below gave judgment for plaintiff. Defendant appeals from the judgment and from an order refusing a new trial.

The ordinance imposing the license-tax sued for is numbered 1677. It imposes a license-tax upon the owners or keepers of hotels, boarding houses, lodging houses, apartment houses, restaurants, and upon caterers, the amount of the tax depending upon the amount of the quarterly gross receipts from the business. Upon that basis the quarterly tax upon the business of the defendant was twenty-one dollars.

The validity of the ordinance is attacked upon the ground that it is contrary to the provisions of the city and county charter prescribing the powers of the board of supervisors, referring to section 1 of chapter II, article II (Stats. 1899, p. 248). The section contains thirty-five subdivisions. The parts of it with which we are here concerned are the opening sentence and subdivision 15, which are as follows:

“Subject to the provisions, limitations and restrictions in this charter contained, the board: of supervisors shall have power;

“15. 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. ’ ’

The exception covering kinds of business requiring a police permit refers to the business of selling intoxicating liquors and the kinds of business mentioned in section 1 of chapter III, article VIII, and chapter IV, section 7. (Stats 1899, p. 327.) This exception does not affect the present case.

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On behalf of the appellant, the argument is, that one who keeps a restaurant is engaged in the business of selling goods, and, hence, that he comes within the terms of the prohibition against the imposition of license-taxes on a person who sells goods, wares, and merchandise at a fixed place of business.