In Re Tepper

Petitioner is in the custody of the chief of police of Los Angeles under a judgment convicting him of a violation of section 79 of Ordinance No. 41,950 of the. municipality, as amended by a later enactment. Section 11 of the ordinance, which is introductory to the sections following it, reads: “The amount or rate of license fees to be paid to the City of Los Angeles by any person, firm, association or corporation engaged in or carrying on any profession, trade, calling, or occupation hereinafter designated is hereby fixed and established as hereinafter in this ordinance provided, and such license fee shall be paid by every person, firm, association or corporation engaged in carrying on any such profession, trade, occupation or calling in the City of Los Angeles.” Section 79 provides: “For every person, firm or corporation conducting, managing or carrying on the business of a retail drugstore where spirituous, vinous or malt alcoholic liquors, containing more than one-half of one per cent of alcohol by volume, are sold, distributed or given away for medicinal purposes upon a physician’s prescription, fifty cents (50c) for each such prescription filled; provided nothing in this…

Under the freeholders’ charter of Los Angeles, subdivision 21 of section 2 thereof, the power of the municipality to discriminate in the amount of license taxes between persons engaged in the same business is limited to discrimination “by proportioning the tax to the amount of business done. ’ ’ Respondent insists that the ordinance here under consideration divides those engaged in the retail druggist business into two classes, the first consisting of those who sell liquor upon prescription by a physician, and the second being those who do not.

Assuming that this is the intent of the ordinance, and that it is a lawful classification, the levying of a definite tax upon each prescription, regardless of its value, is an unlawful discrimination between members of the first class. It cannot be said that the number of prescriptions filled is in any sense a measure of the “business done.” Upon this ground I concur in the conclusion of my associates.