Montgomery v. City of San Diego Health Department

McCABE, J, pro tem.* Plaintiff, appearing in propria persona, brought this action in declaratory relief against the City of San Diego Health Department seeking relief from the provisions of section 42.0130, San Diego Municipal Code. Prom the judgment and decree entered in favor of defendant, plaintiff appeals.

Plaintiff, a vendor of citrus fruits, sells his products from an open trailer drawn by a vehicle. His customers are householders in the city of San Diego, to whom he delivers the fruit at their homes. Prior to the trial he had been conducting this business for a period of approximately seven or eight years. Plaintiff picks up the fruit at the wholesalers in counties other than San Diego County and brings it into the city of San Diego by the above described process. It is conceded by plaintiff that his trailer is open and uncovered and that flies, dust and dirt could get onto the citrus fruits. Plaintiff sought a certificate of inspection described in the ordinance. After being denied the certificate plaintiff brought this action.

Although the named defendant was the City of San Diego Health Department, the city of San Diego, through its city attorney, appeared in the action and the ease was tried by all parties upon the principle that the city of San Diego was in fact the defendant and, further, that the constitutionality of the ordinance in question was to be determined. Regardless of the form of pleadings we will accept the ease upon the theory and principles upon which it was tried.

Section 42.0130 was amended in 1956, adding certain sub[586]sections to it. The new subsections of section 42.0130 about which plaintiff complains read as follows:

“ (c) 3. Every vending vehicle shall be constructed in such a manner that all foods are protected from dust, dirt, flies, and other injurious materials . . .

“ (e) 9. Each vending vehicle shall be inspected semiannually on scheduled dates by the Health Officer, or more frequently if in the opinion of the Health Officer such additional inspections are required in order to protect the public health and safety. The vending vehicle shall be loaded and ready for operation at the time of inspection. The Health Officer shall issue a certificate of inspection for the inspected vending vehicle if his inspection discloses that the vending vehicle and the operation thereof conform to the requirements of this Code. The certificate of inspection shall expire six months from and after the date of its issue and shall specify the particular food products or beverages which will be sold from the vending vehicle.”