People v. Williams

• Decision Date: 17 September 1962
• Docket Number: Cr. A
• Citation: 207 Cal.App.2d Supp. 912,24 Cal.Rptr. 922
• Court: California Superior Court
• Parties: 207 Cal.App.2d Supp. 912 PEOPLE of the State of California, Plaintiff and Respondent, v. Gordon K. WILLIAMS, Defendant and Appellant. 131. Appellate Department, Superior Court, Alameda County, California

Page 922

24 Cal.Rptr. 922

207 Cal.App.2d Supp. 912

PEOPLE of the State of California, Plaintiff and Respondent, v. Gordon K. WILLIAMS, Defendant and Appellant.

Cr. A. 131.

Appellate Department, Superior Court, Alameda County, California.

Sept. 17, 1962.

Gordon K. Williams, Oakland, appellant, in pro. per.

J. F. Coakley, Dist. Atty., and Martin Ruane, Deputy Dist. Atty., for respondent.

QUAYLE, Judge.

Defendant appeals from judgments of conviction on both counts of a complaint which contains the following charges: Count One--On or about February 1, 1961 he carried on his profession of practice of the law in the City of Oakland without the license prescribed by Section 5-1.02 of the Oakland Municipal Code thereby violating Section 16240 of the California Business and Professions Code, a misdemeanor. Count Two--On or about February 1, 1961 he practiced law in the City of Oakland without the license prescribed by Section 5-1.02 of the Oakland Municipal Code thereby committing a misdemeanor under the penal provisions of said Code. He admits that he practiced law at that time and place without obtaining such a license. The only issues raised are:

1. Do the penal provisions in the Oakland Business Licensing Law render it invalid?

2. Do the convictions constitute double punishment for a single act on Appellant's part?

IS THE OAKLAND BUSINESS LICENSING LAW VALID?

Appellant concedes that the City of Oakland may collect a tax from him for practicing law within the city and that a proper ordinance could be enacted to effect the raising of revenue by such means (In re Groves, 54 Cal.2d 154, 4 Cal.Rptr. 844, 351 P.2d 1028). But he contends that the Oakland Business Licensing Law, purporting to be a revenue measure, is in fact a regulation of the practice of the law in that city.

The State of California has preempted the field of regulating and licensing persons entitled to practice law within the state (Section 6000 et seq., Bus. & Prof.Code). Under such circumstances no city can impose restrictions upon persons duly licensed by the state, except to require them to pay a tax for the privilege of maintaining within the city a place in which, or from which, they practice their profession. Any other restriction would conflict with the general law of the state (Article XI, Section 11, California Constitution; Franklin v. Peterson, 87 Cal.App.2d 727, 732, 197 P.2d 788).

Municipal ordinances have been held invalid where qualifications or tests have been required, other than the possession of a license to carry on the business or profession duly issued by the state. (See Horwith v. City of Fresno, 74 Cal.App.2d, 443, 168 P.2d 767; City and County of San Francisco v. Boss, 83 Cal.App.2d, 445, 189 P.2d 32; Lynch v. City of Los Angeles, 114 Cal.App.2d 115, 249 P.2d 856; Agnew v. City of Los Angeles, 51 Cal.2d, 1, 330 P.2d 385; Agnew v. Culver City, 147 Cal.App.2d, 144, 304 P.2d 788). Therefore we must accept as settled law that to uphold the validity of the ordinance in question it must be found to be, in fact, a purely revenue measure.

The ordinance professes, on its face, to be a revenue measure. Section 5-1.04 provides: 'The term 'license' as used in this Article shall not be construed to mean a permit. The fees prescribed by this Article constitute a tax for revenue purposes, and are not regulatory permit fees.'

Section 5-1.02 referred to in both counts of the complaint provides:

'License Required. It shall be unlawful for any person either for himself or for any other person, to commence or carry on any business in this Article specified, in the City of Oakland, without first having procured a license from said city so to do, or without complying with any and all regulations of such business contained in this Article; and the carrying on of any business without first having procured a license from said city so to do, or without complying with any and all regulations of this Article, shall constitute a separate violation of this Code for each and every day that such a business is so carried on.'

No other provision of the Article therein referred to affects the practice of the law except Section 5-1.29, which specifies the amount of license fee to be paid by professional men doing business within the city. Section 16240 of the Bus. & Prof.Code provides:

'Engaging in business, etc., without a license: Misdemeanor. 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.'

A city ordinance is a law of this state within the meaning of this section of the Business and Professions Code (formerly Penal Code, Section 435). In re Sweetman, 5 Cal.App. 577, 90 P. 1069; In re Johnson, 47 Cal.App. 465, 190 P. 852. But obviously a conviction under this provision of the state law would fail if the city ordinance relied on was invalid.

Section 1-3.01 of the Oakland Municipal Code provides:

'Violations, A Misdemeanor. Any person violating any of the provisions or failing to comply with any of the regulatory requirements of this Code, shall be guilty of a misdemeanor. Any person convicted of a misdemeanor under the provisions of this code shall be punishable by a fine of not more than $500.00 or by imprisonment in the City Prison for a period of not more than six months, or by both such fine and imprisonment.'

Appellant cites cases where local ordinances have been held to be invalid where municipalities have sought to punish under local law, acts which are punishable by state law. Analysis of these cases reveals that each was an attempt to invade a field which had been pre-empted by the general law of the state. In re Portnoy, 21 Cal.2d, 237, 131 P.2d 1, involves an attempt by the County of Riverside to make possession of a slot machine a misdemeanor. Such was already declared by the state to be a misdemeanor under Section 330a of the Penal Code. Pipoly v. Benson, 20 Cal.2d, 366, 125 P.2d 482, 147 A.L.R. 515, involves an attempt by the City of Los Angeles to impose additional traffic regulations to control public roadways in conflict with the California Vehicle Code. This would invade a field fully pre-empted by the state. The Oakland ordinance has none of the objectionable features discussed in these cases.

Section 37100 of the Government Code empowers municipal bodies to 'pass ordinances not in conflict with the Constitution and laws of the State or the United States.' Section 37101 of that Code empowers them to 'license, for revenue and regulation, and fix the license tax upon, every kind of lawful business transacted in the city, including shows, exhibitions, and games.'

In re Groves, 54 Cal.2d, 154, at page 156, 4 Cal.Rptr. 844, at page 846, 351 P.2d 1028, at page 1030, states:

'Whether or not state law has occupied the field of regulation, cities may tax business carried on within their boundaries and enforce such taxes by requiring business licenses for revenue and by criminal penalties.' (Emphasis added)

It has been pointed out that the Palm Springs ordinance involved in the Groves case differs from the Oakland ordinance in that the former expressly 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 fee.' The Oakland ordinance specifically makes doing business without a city license a misdemeanor and specifies the penalty.

Appellant contends that by this device he can be incarcerated for failure to pay the tax and thus prevented from practicing law although he is duly licensed to do so by the state. Claiming that this, in effect, is regulative he cites two cases. But they are readily distinguished from the case at bar. City of Sonora v. Curtin, 137 Cal. 583, 70 P. 674, declares that the city's authority to license attorneys falls under its taxing power and not its police power; the ordinance in question provides that 'every lawyer shall pay a license'; this is a tax upon the person because he is a lawyer, which makes it invalid. It is to be distinguished from a license tax upon the business of practicing law which would be valid. (In re Johnson, 47 Cal.App. 465, 469, 190 P. 852, 854). City of San Mateo v. Mullin, 59 Cal.App.2d, 652, 139 P.2d 351, declares that a business license law that fixes the tax in an unreasonable or arbitrary manner or which inadequately defines the subject of the tax is vulnerable to attack; but it held the San Mateo business licensing law to be a valid revenue measure.

The Supreme Court, in the Groves case, indicated that the applicable law was set forth in the Habeas Corpus proceedings brought by an attorney jailed in Los Angeles for practicing law without paying that city's business license tax. In re Galusha, 184 Cal. 697, 699, 195 P. 406, 407:

'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...