ON MOTION FOR REHEARING.
LATTIMORE, Judge.In its motion for rehearing respondent seems not to have apprehended our opinion. We did not hold that the ordinance in question was void because it sought to impose an occupation tax upon relator. Our opinion is based on our conclusion that the effect of said ordinance was to forbid the relator the right to sell his products within the city limits of Temple, Texas, without procuring a license, the imposition of which license fee had no other or better reason than that relator did not operate a regularly established store or warehouse in Temple, and that he drove his truck delivering bread made in another city, from store to store of his customers in Temple, while others, — his competitors, who were engaged in a like business conducted in a similar manner, who did have established stores or warehouses within the city limits of Temple, and did drive their delivery trucks from house to house exactly in the same manner as did relator, — were not required to take out or pay a license fee as a prerequisite for so doing business. This, — we held an unwarranted discrimination between citizens of this commonwealth, — an abridgment of the rights and privileges guaranteed to all citizens alike in this country, — and a denial to one freeman of his just right to the equal protection of the laws of the land. Nothing in our opinion denies to the governing body of the city of Temple the right to enact laws fair and just to all alike, — providing for the same inspection, the same standards of fitness for food products of all kinds, whether fruits, vegetables or manufactured products, sold and offered for sale to the citizens of Temple. We said and intended to say that merely because a man or a group of men own and operate a bakery across the street outside the city limits of said city, neither he nor they should be compelled to pay a license fee of fifty dollars per year as a condition precedent to selling clean and fit bread within such city, while those whose bakery is within the limits of said city are not required to have a license for such selling, notwithstanding the inside products be exactly the same and the business carried on in exactly the same manner as that of the outside producer.
While contending that the ordinance is a health measure, respondent fails to point out any part of same which provides *598for the inspection of the merchandise or product handled or sold by the person defined in said ordinance as an intinerant vendor, it being only provided that the vehicle of such person may be inspected, and if such person sell, or have in possession, any unwholesome products, it shall be unlawful.
Respondent also sets up that we erred in holding that said ordinance permits any person having a store or warehouse within the city limits of Temple, to pursue the occupation of an itinerant vendor, as defined in said ordinance, without payment of a license fee, but does impose such payment upon all person's having no store or warehouse within said city limits, but who sell at wholesale in the same manner and. deliver in the same manner. Said ordinance plainly defines as an itinerant vendor any person who does not operate a regularly established store or warehouse in Temple, “And who shall by traveling from .place to place on and along the streets, etc., of Temple, sell or deliver * * * food products for human consumption.” It would hardly seem necessary to further call attention to the fact that said ordinance is not in any sense aimed at a “vendor,” but at a vendor who moves about and hence is itinerant. All vendors of food stuffs in Temple who merely move about as. they deliver their wares, are not penalized by this ordinance, but only those who come into the city to sell products made elsewhere.
No attempted distinction is based on the conditions surrounding such food products in transit, or in the manner or character of hauling or handling; no standards are therein set up of freshness, preparation or healthfulness of said products by which outside producers may measure their products. The only ground for discrimination is that if they live and manufacture outside and sell and deliver inside, and have no store or warehouse inside, — they become criminals unless they pay an annual license fee of fifty dollars, which is not demanded if they have a store or warehouse inside, even thought the product be identical from every standpoint of health, comfort or convenience.
We find nothing contrary to what we have held in this opinion in the cases of City of San Antonio et al. v. Teague et al., 54 S. W. (2d) 566; Gerald et al. v. Smith et al., 52 S. W. (2d) 347; Mims et al. v. City of Fort Worth et al., 61 S. W. (2d) 539; Ex parte Bradshaw, 159 S. W., 259.
While classification of subjects is a legislative function primarily, yet if such classification be as here, purely arbitrary, it will not be upheld under any authorities known to us. The *599fact that section ten of said ordinance forbids an itinerant vender to have in his possession food products which are unclean, unwholesome, etc., would in no way affect the classification attempted in said ordinance, and upon the existence of which the license fee was demanded. Relator was not charged with violation of section ten of said ordinance, but with failure to pay the license, and if the command of the ordinance in question went no further than to forbid the sale of food products by any vendors within the city of Temple, unless same be clean, wholesome, untainted, etc., and if the charge herein was a violation of such an ordinance, our conclusion would have been wholly different.
Not being able to agree with any of the contentions of the respondent, its motion for rehearing will be overruled.
Overruled.