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District Court of Appeal, Fourth District, California.


Civ. 1852.

Decided: July 27, 1937

Hugo McKinley, of Delano, for appeallant. Israel H. Ham, City Atty., of Tulare, for respondents.

This appeal has been taken by the plaintiff from a judgment dismissing the action after a demurrer to plaintiff's complaint, both general and special, interposed by the defendants had been sustained without leave to amend. The judgment also ordered that a temporary restraining order which issued upon the filing of the complaint be discharged and that plaintiff's application for a temporary injunction be denied.

The purpose of the action was to enjoin the enforcement as to plaintiff of a certain ordinance duly adopted by the city council of the city of Tulare. It is alleged in the complaint that plaintiff is a corporation which for several years has conducted and is now operating a certain business in the city of Tulare. The business in which plaintiff is engaged is alleged to “consist of buying, selling, receiving, distributing, and delivering all kinds of fresh, wholesome milk, bread, butter, and other cooked bakery goods, candies, fruits and vegetables, cured and uncured meats and other foods, intended for human consumption contained in cans, such as canned vegetables, canned meats, canned fish, and all commodities usually carried in an ordinary general grocery store.” The ordinance whose enforcement is sought to be enjoined is set out in hæc verba in the pleading. More detailed reference to it will hereafter be included. It is alleged that the provisions of the ordinance and more particularly those contained in sections 7 and 8 thereof are unreasonable, discriminatory, arbitrary, and invalid for various specified reasons. The prayer of the complaint is for the issuance of a permanent injunction against the enforcement of the provisions contained in sections 7 and 8 of the ordinance and that said sections be adjudged entirely void.

The two sections of the ordinance which are thus attacked are in the following language:

“Section 7. It shall be unlawful for any person, firm, association or corporation, maintaining, or that may hereafter maintain, a place of business, store or establishment in the City of Tulare, engaging in the business of selling, offering for sale, distributing, or in any way or manner disposing of any uncured or uncooked meats or other foods of any kind intended for human consumption, to keep any place of business or establishment open for the transaction of business to any extent whatever or permit such place to be kept open for business, or to receive at such place of business any uncured or uncooked meats or other foods of any kind intended for human consumption, except between the hours heretofore established for the hours of duty of the Municipal Meat and Food Inspector and the Municipal Meat and Food Inspection Department, or to have open any such place of business where any uncured or uncooked meats or other foods of any kind intended for human consumption are handled, sold or distributed, for transaction of business, or for selling or in any manner whatever distributing, any uncured or uncooked meats or other foods on any holiday or on any Sunday, or between the hours of 9 o'clock p. m. on every Saturday and 7 o'clock on every Monday.

“Section 8. The provisions of this Ordinance shall not apply to persons, firms, associations or corporations, engaged in operating bona fide hotels, boarding houses, lodging houses, restaurants, drug stores, confectionery stores, dispensers of beverage, distributors of milk and cream, ice cream and soda fountains, provided that in case one or more of the excepted business is carried on in the same room with any business coming within the provisions of this Ordinance and thereby required to be kept closed on Sundays and certain hours of other days, the part of the room in which said excepted business is carried on shall be separated and set apart from the said business coming under the operations of this Ordinance, by a permanent partition, without opening, not less than five feet in height, and said permanent partition shall enclose and separate said place where said excepted business is carried on, from the remaining part of the room or space where the business coming under the operation of this Ordinance is operated.”

The ordinance, of which the above–quoted sections form a part, is entitled as follows: “An Ordinance of the City of Tulare Creating the Office of Municipal Meat and Food Inspector and a Municipal Meat and Food Inspection Department, Providing for the Inspection of Uncured or Uncooked Meats and Other Foods, and for the Condemnation and Destruction of the Same When Found Unwholesome or Deleterious as Food, Fixing the Hours of Duty of the Inspector and of the Inspection Department, Establishing Opening and Closing Hours for Places of Business Selling Uncured or Uncooked Meats or Any Other Foods, Making a Violation Hereof a Misdemeanor and Prescribing a Penalty Therefor.”

Examination of the ordinance in its entirety discloses that it creates the office of “Municipal Meat and Food Inspector of the City of Tulare” and a department of the city government designated as the “Municipal Meat and Food Inspection Department of the City of Tulare,” which is to have two members, whose offices as such are likewise created. These two members are the city health officer and the municipal meat and food inspector. Section 5 of the ordinance provides that it shall be the duty of such inspector to inspect “all kinds of uncured or uncooked meats and all kinds of other foods handled by markets, establishments, stores and places of business in the city of Tulare intended for human consumption” and grants to the inspector the power to condemn and destroy all such meats and other foods as shall be found tainted, decayed, spoiled, unfit, unwholesome, deleterious, or injurious as food. Section 6 provides that the hours of duty of the meat and food inspector and of the above–mentioned inspection department “shall be any time between the hours of 7 o'clock a. m. and 7 o'clock p. m. on every week day, except Saturdays and the day immediately preceding a legal holiday, and on Saturday and any day immediately preceding a legal holiday the hours of duty” of such inspector and department “shall be any time between the hours of 7 o'clock a. m. and 9 o'clock p. m. except that neither said Municipal Meat and Food Inspector nor said Municipal Meat and Food Inspection Department shall have any hours of duty on Sundays or on legal holidays.”

It is apparent from the above–noted reference to various provisions of the ordinance that it is what is commonly known as a “Health Measure,” and that the expressed purpose of its enactment is the protection and preservation of the health of the inhabitants of the city of Tulare through the medium of food inspection.

No citation of authorities is required to support the proposition that a city possesses ample authority to adopt and enforce laws which have for their object the protection, promotion, and preservation of the health of its inhabitants. In California such power is expressly conferred upon municipalities by the State Constitution. Article 11, section 11, Constitution of Calif.

It is, however, urged that the provisions of section 7 regulating the hours within which stores and places of business wherein foods are offered for sale to the public may remain open constitutes an unreasonable and oppressive regulation of appellant's business which is not inherently dangerous or inimical to the public health. It is also contended that the section is discriminatory because section 8 specifically excepts from the operation of the “closing hours” provisions of the preceding section certain designated businesses which, it is said, are not so intrinsically different from the business conducted by appellant to justify the distinction thus drawn which is characterized as an arbitrary and capricious classification.

Appellant's contention with respect to the criticized portions of the ordinance constituting special legislation and improperly discriminatory to it and others engaged in similar business is fully answered by the decision of the Supreme Court of California in the case of In re Sumida, 177 Cal. 388, 170 P. 823. While it is true that the ordinance of the town of Fowler in the cited case was purely a Sunday closing law, the element of discrimination because of the exception of certain designated places of business from the operation of the ordinance was extensively relied upon as indicating that the law was so discriminatory as to amount to class legislation and therefore unconstitutional. This feature of the case was fully considered, and it was expressly decided that the classification made by the ordinance was not an arbitrary and unjustifiable classification but one that was natural and reasonable under the circumstances. With respect to the matter of discrimination it may be observed that with one exception the places of business which are exempted from the operation of the ordinance in the instant case were likewise exempted in the Fowler ordinance. This single exception consists of “distributors of milk and cream.” No difficulty is encountered in arriving at the conclusion that the desirability of having these articles available at all hours furnishes a natural and proper reason for exempting the distribution of them from the regulation of the ordinance. The importance of milk as a natural and necessary food for children is a matter of common knowledge and affords adequate and reasonable ground for the exemption. We think, therefore, that the reasoning of the opinion in the cited case on the feature of discrimination is peculiarly pertinent and that it is conclusive of this phase of the instant proceeding.

Appellant's chief attack upon the ordinance is directed to the provisions of section 7 which, as above noted, require all places of business wherein uncured or uncooked meats or other foods of any kind intended for human consumption are offered for sale and sold to remain closed during certain hours of each day and on Sundays and holidays. It is argued that the regulation thus attempted constitutes an unwarranted invasion of appellant's constitutional right to operate a business which is a perfectly lawful and necessary occupation. It is conceded that prohibition of the sale of uncured and uncooked meats and “a limited number of other foods” may be proper, but it is contended that the enforced closing of all stores and establishments where foods of any kind are sold is so drastic as to indicate that the attempted regulation is unreasonable and that it constitutes an improper exercise of the police power which the municipality admittedly possesses.

Appellant's concession that the sale of uncured or uncooked meats may be prohibited during designated hours is proper. It has been expressly so decided in the recent cases of In re Lowenthal, 92 Cal.App. 200, 267 P. 886, and In re Gatsios, 95 Cal.App. 762, 273 P. 826. In the first of the above–cited decisions it is pointed out that the conduct of a meat market has always been the subject of regulation under the police power of the state or any municipality and that the manifest purpose of the ordinance which was being discussed was to prevent the sale of unfit or tainted meat at a time when those employed to safeguard purchasers of meat were not on duty. The last–mentioned observation is peculiarly apropos to the present discussion, since the closing hours designated in section 7 of the Tulare ordinance are precisely the hours during which the meat and food inspection department of the city and the municipal meat and food inspector are not on duty as provided in section 6 of the ordinance.

Appellant nevertheless insists that the requirement that all places of business where foods of any kind are offered for sale shall be closed during the specified hours is so broad and so comprehensive as to amount to an unreasonable restriction on an admittedly legitimate business. However, appellant's concession that the sale of some foods in addition to uncured meat may properly be prohibited during certain specified hours serves to emphasize the difficulty of declaring that the regulation imposed by the ordinance is unreasonable. As heretofore noted, the ordinance is essentially a health measure, having for its object the promotion and preservation of public health through the medium of expert inspection. It may be assumed that in a grocery store of the character of that operated by appellant many articles of food are offered for sale the inspection of which would not disclose their defectiveness or unfitness for human consumption. The fact remains nevertheless that vigilant and careful inspection of materials designed for human consumption is approved generally today as a precautionary measure tending to safeguard the public health. The manifest object of the closing hours regulation provided by section 7 of the ordinance is to prevent the sale of unfit or unwholesome food during times when those who are employed to furnish the service of inspection are not on duty. Since it is apparent that the ordinance under consideration is designed to protect the public health and it is not palpable that the regulation prescribed by section 7 thereof has no substantial relation to the matter of public health, it may not be declared that the law–making body of the city has acted arbitrarily and unreasonably in prescribing the criticized regulation. Miller v. Board of Public Works, 195 Cal. 477, 490, 234 P. 381, 38 A. L.R. 1479.

Appellant's suggestion that the regulation prescribed by section 7 of the ordinance is unreasonable for the reason that it prohibits, during the hours designated, the sale of numerous articles which do not fall in the category of foods and in which appellant deals, is not impressive. It is common knowledge, we presume, that the modern grocery store offers for sale a variety of articles which are not foods and which have no connection with foods. Undoubtedly appellant may, if it chooses so to do, provide a separate inclosure within its store where it may freely offer for sale such articles as brooms, matches, soap, etc., during the hours when the sale of food is prohibited. So far as here appears, appellant has not manifested any desire to engage in the sale of nonfood articles during closing hours in the manner suggested. The argument that the regulation provided by section 7 is unreasonable because it prohibits the sale of nonfood articles during the specified hours of closing is fully answered by the decision in Re Sumida, supra.

For the reasons stated herein the judgment from which this appeal has been taken is affirmed.

JENNINGS, Justice.

We concur: BARNARD, P.J.; MARKS, J.

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Docket No: Civ. 1852.

Decided: July 27, 1937

Court: District Court of Appeal, Fourth District, California.

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