Tarbox

Appellant here, petitioner below, appeals from the judgment denying his petition for a writ of mandate addressed to the respondent board of supervisors and the county tax collector and dismissing said petition. While the judgment appealed from purports to be based upon an order sustaining a demurrer to the petition without leave to amend, inasmuch as the petition set forth the entire record before the board of supervisors and as the return to the alternative writ issued by the superior court incorporated that record and as the superior court was not entitled to receive any other evidence than that which was before the board (Fascination, Inc. v. Hoover, 39 Cal.2d 260 [ 246 P.2d 656 ]), we treat the judgment as one upon the merits.

The petitioner is the owner of and since October, 1955 has operated a motion picture theater known as the Carmel Museum Theater in the county of Los Angeles. Each year he was issued a license by the county of Los Angeles to conduct the operation of that theater. In March of 1957 petitioner applied for a renewal of his license and, objection thereto having been made by the sheriff of the county, a hearing was held before a referee appointed by respondent…