Groves, In re

• Decision Date: 13 May 1960
• Docket Number: Cr. 6598
• Court: California Supreme Court
• Parties: , 351 P.2d 1028 In re William Edmond GROVES, on Habeas Corpus.

Page 844

4 Cal.Rptr. 844

54 Cal.2d 154, 351 P.2d 1028

In re William Edmond GROVES, on Habeas Corpus.

Cr. 6598.

Supreme Court of California, In Bank.

May 13, 1960.

Rehearing Denied June 8, 1960.

William O. Burt, Santa Monica, for petitioner.

Jerome J. Bunker, City Atty., Palm Springs, for respondent.

TRAYNOR, Justice.

By petition for a writ of habeas corpus petitioner challenges his conviction of engaging in business in the city of Palm Springs without a license as required by the Palm Springs Ordinance Code. We issued an order to show cause directed to the Chief of Police of Palm Springs and ordered petitioner released on his own recognizance.

Petitioner secured a state license to operate a 'milk products plant' in Palm Springs for the manufacture and sale at retail of ice cream products. Agr.Code, §§ 660, 661. He contends that the state statutes establish a complete system for the licensing and regulation of his business and that the city cannot therefore require him to secure an additional license to conduct that business. The city contends that the state statutes have not occupied the field of regulation of businesses such as petitioner's and that in any event its licensing ordinance does not conflict with state regulatory laws, since as applied to petitioner, the ordinance requires a business license for revenue only.

Chapters 21 and 22 of the Palm Springs Business License Ordinance (Division 2 of the Palm Springs Ordinance Code) provide for the licensing of businesses and the payment of business license fees by those engaged in business in the city.

Section 2111 of Chapter 21 provides that 'It is unlawful for any person (whether as owner, manager, principal, agent, clerk, employee, offcer of lessee, either for himself for any other person, or for any body corporate, or as an officer of any corporation, or otherwise) to commence, manage, engage in, conduct or carry on any business, vocation, profession, calling, show, exhibition or game, in Chapters 21 and 22 specified, in this City, without first having procured a license from the City of Palm Springs to do so or without first complying with any and all regulations for such business, vocation, profession, calling, show, exhibition or game contained in Chapters 21 and 22.' Section 2131 provides that no person shall be licensed to carry on an activity requiring a state license unless he has such a license, section 2133 provides that no person shall be licensed to carry on an activity requiring a permit under some other city ordinance unless he has secured such a permit, and section 2135 provides that no perosn shall be licensed to carry on an activity at a place where the activity is prohibited by a zoning ordinance. Other provisions of Chapter 21 set forth the conditions on which the city council may issue special permits for activities requiring such permits, additional regulations applicable to peddlers and solicitors, and remedies for enforcement of the licensing ordinance including the collection of the business license fees set forth in Chapter 22. The fee applicable to petitioner's business is $100 per year.

Although the ordinance provides generally both for the regulation of the businesses involved and the collection of revenue by business license fees, it has been invoked specifically against petitioner solely for revenue purposes. Other than the requirements with respect to state licenses and zoning, which are not here involved, the ordinance contains no provisions regulating the conduct of plaintiff's business.

Whether or not state law has occupied the field of regulation, cities may tax businesses carried on within their boundaries and enforce such taxes by requiring business licenses for revenue and by criminal penalties. Gov.Code, § 37101; In re Galusha, 184 Cal. 697, 699, 195 P. 406; Franklin v. Peterson, 87 Cal.App.2d 727, 731, 197 P.2d 788; City of San Mateo v. Mullin, 59 Cal.App.2d 652, 654, 139 P.2d 351; In re Johnson, 47 Cal.App. 465, 468, 190 P. 852; see also, Ainsworth v. bryant, 34 Cal.2d 465, 476-477, 211 P.2d 564; Horwith v. City of Fresno, 74 Cal.App.2d 443, 445, 168 P.2d 767. This court stated the applicable law when it discharged a writ of habeas corpus sought by an attorney who had been arrested for carrying on the practice of law in the city of Los Angeles without paying the license tax imposed by a city ordinance. 'As in the case of other professions or businesses which can be taxed by the state, the cases hold that the state can delegate to a municipality the power to impose a tax for the privilege of following the practice of the profession within the jurisdiction of the municipality. (Citations.) The imposition of an occupational tax by a municipality upon those engaged in the practice of the legal profession is not an interference with state affairs. The mere compliance with certain prerequisites, in return for which a license to practice law is granted by the state, does not place a person beyond the range of additional regulation of the conditions upon which the license may be used. The municipality, in imposing an occupational tax upon attorneys, is not interfering with state regulations, for it is not attempting to prescribe qualifications for attorneys different from or additional to those prescribed by the state. It is merely providing for an increase in its revenue by imposing a tax upon those who, by pursuing their profession within its limits, are deriving benefits from the advantages especially afforded by the city. The tax is levied upon the business of practicing law, rather than upon a person because he is an attorney at law. (Citations.) A license to practice does not carry with it exemptions from taxation.' In re Galusha, supra (184 Cal. 697, 195 P. 407).

Petitioner contends, however, citing Agnew v. City of Los Angeles, 51 Cal.2d 1, 330 P.2d 385, Agnew v. City of Culver City, 51 Cal.2d 474, 334 P.2d 571, and Agnew v. City of Culver City, 147 Cal.App.2d 144, 304 P.2d 788, that city business taxes may not be enforced against persons licensed under state law by requiring them to secure business licenses or suffer criminal penalties. In the Agnew cases the license fees were not imposed solely for revenue purposes but as an inseparable part of a regulatory scheme excluded by state law. See also, Agnew v. City of Los Angeles, 110 Cal.App.2d 612, 619-623, 243 P.2d 73; Lynch v. City of Los Angeles, 114 Cal.App.2d 115, 118-120, 249 P.2d 856; City and County of San Francisco v. Boss, 83 Cal.App.2d 445, 452, 189 P.2d 32. In the present case, however, the city seeks to enforce its licensing ordinance against petitioner for revenue only, and as the Agnew cases expressly recognized, such taxation is not excluded because the state has occupied the field of regulation. 51 Cal.2d 1, 7, 330 P.2d 385; 51 Cal.2d 474, 477, 334 P.2d 571; 147 Cla.App.2d 144, 149, 304 P.2d 788.

Petitioner contends, however, that by express provision the ordinance excludes criminal enforcement against him. Section 2132.1 provides that 'The criminal penalties provided for by this Code shall not be applied to businesses or professions requiring a State license as a condition precedent to doing business in the City, nor as a method of obtaining collection of the license fees.' This provision was added to the ordinance in 1959 following the decisions of this court in the Agnew cases to make 'it clear that the business fees imposed are for revenue only and clearly collectible within the meaning of the decisions of the Supreme Court of this State.' Palm Springs Ordinance No. 444. Although section 2132.1 precludes the application of the criminal penalties provided by the Palm Springs Ordinance Code, it does not make lawful the carrying on of a business without a license, dispense with the obligation to secure a license (Business License Ordinance, § 2111, supra), or exclude the application of the state criminal penalty for carrying on a business without a license required by law.

Section 16240 of the Business and Professions Code provides that 'Every person who commences or carries on any business, trade, profession, or calling, for the transaction or carrying on of which a license is required by any law of this State, without taking out or procuring the license prescribed by such law, is guilty of a misdemeanor.' The Legislature added this section to the Business and Professions Code in 1941 at which time it repealed the identical provisions of section 435 of the Penal Code. At that time it was settled that a city ordinance was a law of this state within the meaning of section 435. Teachout v. Bogy, 175 Cal. 481, 484-485, 166 P. 319; Ex parte Bagshaw, 152 Cal. 701, 703, 93 P. 864; In re Johnson, supra, 47 Cal.App. 465, 467, 190 P.852; see also, County of Plumas v. Wheeler, 149 Cal. 758, 768, 87 P. 909; Ex parte Stephen, 114 Cal. 278, 282, 46 P. 86. By transferring the statute from the Penal Code to the business and Professions Code the Legislature did not change the meaning of its terms. Bus. & Prof.Code, § 2.

Petitioner was charged with the misdemeanor of operating his business 'without having first secured a business license as required by Section 2111 of Division 2 of the 'Palm Springs Ordinance Code. " These allegations state the precise facts made a misdemeanor by section 16240 of the Business and Professions Code. Petitioner was therefore fully informed of the charges against him and in no way prejudiced by the failure of the complaint to cite section 16240. Under these circumstances failure to cite this section in the complaint is not grounds for setting aside the judgment on habeas corpus. As stated in In re Mingo, 190 Cal. 769, 771, 214 P. 850, 'The mere fact that the complaint alleged a violation of the county ordinance instead of the state law would not render the judgment void in so far as the facts alleged and proved showed a violation of the state law. * * *' See also In re Murphy, 190 Cal. 286, 291-293, 212...