Fong Bros. v. Geiger

WARD, J. An appeal by petitioner, a copartnership, from an order and judgment of the superior court dismissing its petition for a writ of mandate to compel respondents to issue a permit for the distribution of fluid milk and fluid cream under the provisions of section 486, part II, chapter V, article 9 of the Municipal Code of the city and county of San Francisco. This section provides that a permit must be obtained from the director of public health before there may be offered for sale, exposed for sale, sold or delivered for distribution, sale, use or consumption within the city and county of San Francisco, any milk, etc. In order to procure a permit the applicant must file a written application containing specified information. If the statements made therein are true, and it appears that the applicant does not intend to dispose of unwholesome milk as food for human beings, and that the handling is to be under sanitary conditions and in conformity with certain regulations, the permit must be issued.

The petition herein alleged that an application was filed in the manner prescribed by law for a permit to engage in the distribution of fluid milk and fluid cream, and that the application was refused; “That said refusal is and was arbitrary, capricious and based upon prejudice and bias in that petitioners herein are of Oriental extraction”; that petitioner has not been accorded equal rights under the law with others engaged in the same line of business, which “is an abridgment of constitutional rights”; that it has been engaged in delivery of milk exclusively in the Chinatown district, and that respondents have caused the arrest of one of the members of the copartnership and have harassed petitioner.

An order for an alternative writ was made on the date the petition was filed and the alternative writ thereafter issued. A demurrer filed to the petition was overruled, and subsequently after several continuances the matter was heard on [204]the order to show cause. Some time after the hearing an answer was filed which admitted and denied certain allegations of the petition, and alleged that “William Fong, one of the members of said partnership, was arrested on two different occasions, and further alleges that said petitioner, and particularly William Fong was convicted of the offense charged.” The answer “further alleges that under the law and ordinances in existence in the city and county of San Francisco, and the State of California, respondent is without authority or right to grant a peddler’s license as requested by petitioner, and further alleges that petitioner comes into this court of equity with unclean hands in this, that said petitioner has delivered milk in a falsely labeled truck, and has filled cans of milk from quart bottles, all of which is against the Agricultural Code of the State of California.” Petitioner moved to strike the answer from the file, which motion was denied. The court found in accordance with respondents' contentions and entered judgment.