Howard v. State of California

SHINN, Acting P. J.

Plaintiff instituted this action against the State of California and various state and county officials, seeking to restrain them from prosecuting him for violations of the Business and Professions Code, by reason of his entering into contracts as a painter for considerations other than wages. From his complaint it appears that he is recognized as a master painter in the painting trade which is, and long has been, his only means of supporting himself and his family. His business is not one that is exempted from the operation of the code. Much contract work is available to him and if he is required to work for wages his opportunity for full employment will be greatly restricted. Although he is a qualified and skilled painter he does not possess a license issued under the code, and is unable to procure one. He has been convicted in the municipal court of carrying on his business without a license, and he alleges that unless the defendants are restrained they will continue to prosecute him to the extent of preventing him altogether from carrying on his trade, except for the consideration of wages, the effect of which will be to greatly impair his ability to support himself and his family. The individual defendants demurred and the matters were assigned to, and were heard by, three judges of the superior court who constitute the appellate department of the superior court. Plaintiff’s attorney stated to the court that he waived his right to amend his amended complaint; the demurrers were sustained without leave to amend and judgment was entered for the defendants. Plaintiff appeals.

The grounds of appeal are, (1) the code does not apply to the business of painting buildings, or other structures, (2) the section defining contractors is void for uncertainty, and (3) that if the act be construed to have application to the business of painters, and is not void for uncertainty, it is violative of section 10, article I, and of the Fifth Amendment to the Constitution of the United States, and of section 1,

[363]

article I and sections 11 and 21 of article I of the state Constitution.

By section 7028 of the code it is made a misdemeanor for any person to engage in the business or act in the capacity of a contractor without having a license therefor, unless such person is particularly exempted from the provisions of the act. The term “contractor,” as used in the act, is defined in section 7026, which reads; “The term contractor for the purposes of this chapter is synonymous with the term ‘builder’ and, within the meaning of this chapter, a contractor is any person, except an owner who contracts for a project with a licensed contractor or contractors or a licensed architect or a registered civil engineer acting solely in his professional capacity, who in any capacity other than as the employee of another with wages as the sole compensation, undertakes to or offers to undertake to or purports to have the capáeity to undertake to or submits a bid to, or does himself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation, or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or other structures or works in connection therewith.”