Agnew v. City of Culver City

Plaintiff brought this suit for declaratory relief to determine the validity of Ordinance Number 49, as amended by Ordinance Number 250, of the city of Culver City providing for licensing and regulating electrical contractors and fixing fees to be charged electrical contractors as a condition precedent to engaging in electrical contracting in Culver City and to determine the validity of certain provisions of Ordinance Number 170 of Culver City, as amended by Ordinance Number 230, providing for examinations before the issuance of electrical permits to do wiring, and prescribing methods and material for electrical installations. Plaintiff also

Plaintiff is an electrical contractor licensed by the Contractors’ State License Board under sections 7000 et seq. of the Business and Professions Code. Defendant city of Culver City is a municipal corporation. Defendant Turton is the electrical inspector of the city and defendant Loretta is the chief of the building department.

Plaintiff applied to the proper official for a permit authorizing him to do electrical work within Culver City at a designated address. He was informed it would be necessary for him to pay a license fee of $100 under Ordinance 49 and to obtain from the business license collector a business license to do work as an electrical contractor in the city. Plaintiff refused to pay the fee and to obtain the license on the ground his state license as an electrical contractor authorized him to do work as such in Culver City without conforming to any local ordinances requiring a license or the payment of a fee.

The court found: 1. Plaintiff is authorized to work as an electrical contractor anywhere in the state, subject to the provisions of any local ordinance not in conflict with the Business and Professions Code. 2. Ordinance 49, as amended by Ordinance 250, providing for the enforcement of the provisions of the ordinance by criminal process, imposes an additional burden on plaintiff in carrying on his work as a licensed electrical contractor not contemplated by the State Contractors’ License Law, and is in conflict therewith. 3. Ordinance 230, amending Ordinance 170, creating the office of electrical inspector and fixing his powers and duties and regulating installation of electrical equipment, etc., is an ordinance adopted by the city council under its police power, relating to the quality, safety, and character of electrical installations, and is not in conflict with the State Contractors’ License Law and does not illegally interfere with the right of plaintiff to carry on his business as an electrical contractor within Culver City.

The judgment declared: 1. Ordinance 49, as amended by Ordinance 250, is invalid and unenforceable against plaintiff insofar as it provides for the enforcement of the provisions of the ordinance by criminal process. 2. Ordinance 230 was a valid and existing ordinance at the time of trial of the

The same contention was made in Agnew v. City of Los Angeles, 110 Cal.App.2d 612 [ 243 P.2d 73 ]. In that case the superior court granted an injunction against the enforcement of provisions of the electrical code of Los Angeles requiring payment of a permit service fee of $100 and the posting of a $1,000 bond by electrical contractors. In affirming the judgment we held: 1. The provision of article XI, section 11, of the Constitution declaring that “Any . . . city . . . may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws, ’ ’ is a limitation on the power of municipalities, from whatever source the power is derived. 2. A local ordinance is in conflict with general law if the general law occupies the entire field, leaving no room for local regulations. 3. It was the intention of the Legislature to declare that licensing and regulation of contractors by the state shall be the only licensing and regulation in the state. 4. The licensing of contractors throughout the state is a matter of general and state-wide concern, and is not a municipal affair which concerns only the inhabitants of a chartered city and which is subject to local regulation. 5. The state, by the enactment of the Contractors License Act (Bus. & Prof. Code, § 7000 et seq.), has adopted a broad and comprehensive plan for licensing contractors throughout the state, and such general law has fully occupied the field to the exclusion of municipal regulation thereon other than for revenue only and for the enforcement of local regulations as to the quality and character of electrical installations. 6. A state license implies permission to the licensee to conduct his business at any place in the state, and this permission should not be circumscribed by local authorities; a city ordinance is invalid if it attempts to impose additional requirements. 7. The challenged provisions of the ordinance were invalid as an attempt to provide a means by which a contractor with a state license may be denied the right to contract or work in the city, and as being in direct conflict with the general state law, which is complete in itself; it nullified the permission given a contractor by the general law to conduct his business at any

Lynch v. City of Los Angeles, 114 Cal.App.2d 115 [ 249 P.2d 856 ], says (p. 119) :

“To finally sum up the matter in its legal aspect, appellants’ argument tends to give first place to municipal regulatory powers and subjects state control to municipal limitation. This theory of operation is directly contrary to the well established rule, and should not be sanctioned either under so-called police power or otherwise. Nor should a contractor who has been duly licensed by the state be placed in such a confused and burdensome position.”

Notwithstanding the state law which, authorizes an electrical contractor holding a state license to contract anywhere in the state, Ordinance 49, as amended by Ordinance 250, limits his right to contract in Culver City unless he pays the city the prescribed fee and obtains a permit from the city. The provisions of the ordinance do not come within the category mentioned in Horwith v. City of Fresno, 74 Cal.App.2d 443 [ 168 P.2d 767 ]—regulations as to the quality and character of installations. They attempt to provide the means by which an electrical contractor with a state license may be denied the right to contract or work in Culver City. The general law is complete in itself. It is not simply prohibitory. It is also permissive. It authorizes contractors licensed by the board to engage in their occupations anywhere in the state. The requirement for the payment of a fee and the obtaining of a permit nullifies the permission given a contractor by the general law to conduct his business at any place in the state. A municipality may not impose a more stringent or additional requirement than imposed by the general law. It clearly appears that the general law and the challenged provisions of Ordinance 49, as amended by Ordinance 250,—the one permitting, the other prohibiting, the same act, except on more onerous terms—are in direct conflict with each other.

Ordinance 49 as amended by Ordinance 250, does what Horwith v. City of Fresno, 74 Cal.App.2d 443 [ 168 P.2d 767 ], City & County of San Francisco v. Boss, 83 Cal.App.2d 445 [ 189 P.2d 32 ], Collins v. Priest, 95 Cal.App.2d 179 [ 212 P.2d 269 ], Agnew v. City of Los Angeles, 110 Cal.App.2d 612 [ 243 P.2d 73 ], and Lynch v. City of Los Angeles, 114 Cal.App.2d 115 [ 249 P.2d 856 ], say cannot be done. The provisions of the ordinance relating to state licensed electrical contractors are invalid.

no such judicial doctrine has ever been announced. If assent to such a doctrine could be given, a situation would arise where owners of property with considerable persistence might learn what these Code rules were, and incur the expense of making their property conform thereto, only to find that the National Fire Protective Association had reconvened in Chicago, New York, or New Orleans, and had revised the Code, and that the work and expense had to be undertaken anew. And there would be no end of such a state of affairs. Furthermore, there is no official way, indeed no practical way, for the average property owner to know what these Code rules are. The laws of this state to which our people owe obedience must be officially published. The people may learn what these laws are, and they are privileged to meet legislative committees and petition the Legislature for amendment, improvement, and amelioration of the laws. Shall it be intimated that if these fire prevention regulations, these ‘National Electrical Code’ rules are oppressive, or otherwise objectionable, the property owners of this state must be referred to some voluntary and unofficial conference of underwriters and electricians which occasionally meets here, there, or anywhere in North America for redress of grievances. But the fallacy of such legislation in a free, enlightened, and constitutionally governed state is so obvious that elaborate illustration or discussion of its infirmities is unnecessary. If the Legislature desires to adopt a rule of the National Electrical Code as a law of this state, it should copy that rule, and give it a title and an enacting clause, and pass it through the Senate and the House of Representatives by a constitutional majority, and give the Governor a chance to approve or veto it, and then hand it over to the secretary of state for publication.

“The clause . . . requiring that ‘all electric wiring shall be in accordance with the National Electrical Code, ’ is void for uncertainty. ...” (See Columbia Specialty Co. v. Breman, 90 Cal.App.2d 372 , 377-378 [ 202 P.2d 1034 ].)

In City of Tucson v. Stewart, 45 Ariz. 36 [ 40 P.2d 72 , 96 A.L.R. 1492 ], the court considered an ordinance which provided that the city electrician could refuse to give his approval of electrical installations if they did not comply with “approved methods of construction for safety to life and property” and that “ [t]he regulations contained in the present National Electrical Code, and subsequent editions thereof, and in the present National Electrical Safety Code,

“The contractor or supervising electrician might have one opinion as to the approved methods, and the city electrician, who is given final say as to whether the construction conforms with the approved methods, another and entirely different opinion. The fact that the ordinance provides that in determining the approved methods the regulations of the present National Electrical Code and the present National Electrical Safety Code and subsequent editions thereof may be taken as prima facie evidence of such methods, but that, in case of conflict the electrical code of the City of Tucson shall govern, does not lend clarity, certainty, or definiteness to the regulations, but rather suggests conflicts for an administrative officer of the city to reconcile.”

The court held that requiring conformity in construction to be in accordance with the regulations of some private association was delegating the legislative body’s power to make the city’s laws, and that the ordinance was void.

In Cawley v. Northern Waste Co., 239 Mass. 540 [ 132 N.E. 365 ], sections of a municipal ordinance provided that an owner could not connect electricity with any system of wiring for light or power without a written permit of the inspector of wires and forbade that officer to issue such permit unless “the established rules and regulations of the National Board of Fire Underwriters” should have been complied with. The sections were held void.

Every man should be able to know with certainty when he is committing a crime. (In re Peppers, 189 Cal. 682 , 686 [ 209 P. 896 ].)

Measured by these principles, it is apparent that sections 4(c), 5(a), 5(b), 9(a), 9(e), and that part of section 21 reading “All above listed equipment shall have Underwriters’ Laboratory Label or recognized testing laboratory label” of Ordinance 170, as amended by Ordinance 230, are invalid. They constitute an unlawful delegation of power. They are vague, indefinite, and uncertain. They leave it entirely to the opinion of the persons who formulate the National Electrical Code, to various private and public bodies, and to the license inspector to determine the law governing the character and quality of various electrical installations, and confer on them the power to create an offense to which

First Industrial Loan Co. v. Daugherty, 26 Cal.2d 545 [ 159 P.2d 921 ], says (p. 549):

“The Legislature may, after declaring a policy and fixing a primary standard, confer upon executive or administrative officers the ‘power to fill up the details’ by prescribing administrative rules and regulations to promote the purposes of the legislation and to carry it into effect, and provision by the Legislature that such rules and regulations shall have the force, effect, and sanction of law does not violate the constitutional inhibition against delegating the legislative function. ’ ’

“ [P. 550.] A ministerial officer may not, however, under the guise of a rule or regulation vary or enlarge the terms of a legislative enactment or compel that to be done which lies without the scope of the statute and which cannot be said to be reasonably necessary or appropriate to subserving or promoting the interests and purposes of the statute.”

Gaylord v. City of Pasadena, 175 Cal. 433 [ 166 P. 348 ], held that a municipal ordinance delegating to the city electrician the power of determining whether an electrical installation in a building is dangerous to life or property, without defining what conditions he must find to exist before he determines that the installation is unsafe or dangerous, was not void as unwarrantedly conferring on that officer legislative powers or because its terms were either indefinite, arbitrary, or oppressive. The court said that from the very nature and character of an electrical apparatus, it would be impossible for any ordinance to define what conditions the city electrician must find before he determined that the electrical

We think sections 5(c), 9(b), and 9(g) come within these principles and that they are merely administrative regulations to promote the purposes of the legislation and to carry it into effect. They are valid. The purpose of section 5(d) and that part of section 21 relative to stating the manufacturer’s name or trademark on certain materials may be to facilitate repair, replacement of parts, or fix responsibility for safety. It is apparent that certain standards of quality in electrical fixtures are reasonable demands in the interest of public safety. (Thrift Hardware & Supply Co. v. City of Phoenix, 71 Ariz. 21 [ 222 P.2d 994 , 996].) We cannot say, as a matter of law, that those provisions are unreasonable. They are valid.

The judgment, insofar as it adjudges that Ordinance 49, as amended by Ordinance 250, is invalid and unenforceable against plaintiff insofar as it provides for the enforcement of the provisions of the ordinance by criminal process, and insofar as it adjudges that Ordinance 170, as amended by Ordinance 230, is invalid to the extent section 4(d) applies to plaintiff, is affirmed. Insofar as it adjudges that Ordinance 170, as amended by Ordinance 230, is valid in all other respects, it is reversed with directions to the superior court to amend its findings of fact and conclusions of law and render judgment in conformity with this opinion.

Shinn, P. J., and Wood (Parker), J., concurred.

Petitions for a rehearing were denied January 17, 1957, and the petitions of plaintiff and appellant and of defendants and appellants for a hearing by the Supreme Court were denied February 13, 1957.