McMURRAY, J. pro tem.
This is an appeal from a judgment denying recovery of sales taxes paid. Appellant operates an establishment in Sacramento where hamburgers, cheeseburgers, French fried potatoes, milkshakes and soft drinks are sold to the public. The customers do not enter the building where the food is prepared, but place and receive their orders through one of four windows or ports. There is no car or other service except that an employee keeps the grounds clear of litter. Surrounding the building in which the food is prepared and dispensed there is a parking area
Respondent imposed, and appellant paid, a sales tax from the receipts of its business. This action was brought to recover the taxes so paid on the ground that its sales are of "food products" which are exempt from taxation. (Rev. & Tax. Code, § 6359.) Respondent contends that appellant's operations constitute the serving of "meals" and the preparing and serving of food for consumption "from trays" and therefore are not "food products" within the meaning of section 6359 of the Revenue and Taxation Code, which in material part provides:
"`Food products' also do not include meals served on or off the premises of the retailer or drinks or foods furnished, prepared, or served for consumption at tables, chairs, or counters or from trays, glasses, dishes or other tableware provided by the retailer."
"... Under our modern system of living a sandwich served in good faith as a meal would constitute a meal as contemplated by law."
And in that decision the court also said that the question whether within the import of the statute a sandwich constituted a "meal" was in each instance primarily a question of fact, that a general rule of law could not be laid down in all cases with reference to a question so intricately connected with and controlled by individual tastes and conditions of diet and circumstances. The trial court here further found that the trays upon which appellant furnished food to its customers were trays within the contemplation of the statute. Appellant has advanced a substantial amount of semantic argument as to the meaning of "trays," as to the meaning of "meals," and as to what constitutes "service" by the retailer of food. We think, however, that the matters from which the appeal is here taken were matters within the fact-finding power of the trial court and that it is unnecessary to attempt to define as a matter of law what is a tray or what is a meal.
The judgment appealed from is affirmed.
Van Dyke, P.J., and Peek, J., concurred.
A petition for a rehearing was denied November 30, 1956, and appellant's petition for a hearing by the Supreme Court was denied January 4, 1957. Schauer, J., was of the opinion that the petition should be granted.