RUSSELL v. MILLER ET AL

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District Court of Appeal, First District, Division 1, California.

RUSSELL v. MILLER ET AL.

Civ. 11574.

Decided: July 09, 1942

Earl Warren, Atty. Gen., and Lucas E. Kilkenny, Deputy Atty. Gen., for appellants. Geary & Geary and C. J. Tauser, of Santa Rosa, and Bradford M. Melvin, of San Francisco, for respondent.

The members of the Contractors' State License Board, and the registrar and deputy registrar of such board, appeal from a judgment of the superior court directing appellants to restore the contractor's license of respondent Norman Russell. The board suspended Russell's license, finding that he had “wilfully and deliberately disregarded the plans and specifications which were the basis of his contract with the Board of Trustees of the Napa Union High School to the prejudice of said Board and without their consent,” and that he had, in the performance of the contract, “wilfully and deliberately disregarded and violated * * * the safety orders of the Industrial Accident Commission concerning electrical installation.”

The complaint, filed by the registrar, charged that Russell, as a duly licensed contractor, entered into a contract with Villadsen Bros., general contractors, on February 10, 1937, to furnish labor and material for the electrical work to be installed in the reconstruction and alteration of the Napa High School, the same to be completed in accordance with certain plans and specifications; that work under the contract did not cease until December 15, 1937; that in the performance of that contract Russell wilfully departed from and disregarded the plans and specifications in nineteen specified particulars; that in the performance of the contract he violated the safety orders of the Industrial Accident Commission in eleven specified particulars. In his answer Russell admitted that most of the charged violations had been committed, but urged that, in the performance of such work, it is necessary to rely on the integrity and ability of the men selected by him to oversee the work; that in view of the flagrant violations of the safety orders and the poor workmanship discovered “defendant can only say that defendant misjudged the ability and integrity of the man defendant selected to oversee the work”; that he has made an honest effort to correct the faulty work; that when a list of violations and deviations from plans and specifications was furnished him on February 27, 1939, he proceeded to make corrections until stopped by order of the grand jury that was investigating the work; that the charged violations and deviations were neither wilful nor deliberate. The board found that Russell had committed the various violations charged, and, based on these findings, suspended his license for a fixed period, which has now expired, “and until defendant makes restitution to the Board of Trustees of the Napa Union High School satisfactory to the Registrar of Contractors. * * *.”

In due course, Russell sought by writ of mandate in the superior court to secure the restoration of his license. After a trial of the mandate proceeding, the trial court found that certain specified violations of safety orders and deviations from the plans and specifications had occurred in the performance of such contract, but such violations and deviations were not committed within two years prior to the filing of the complaint against Russell, except one such violation which the court found to be neither wilful nor deliberate. Predicated on these findings, the trial court issued a peremptory writ of mandate directing appellants to restore Russell's contractor's license, and to dismiss the complaint against him. It is from that judgment that this appeal is taken.

Appellants' major contention on this appeal is, that the superior court improperly struck from evidence on motion of respondent, the transcript of the proceedings had before the administrative board. The entire transcript had been admitted into evidence at the request of appellants, but, upon respondent's motion, it was striken from the record. It was the theory of the trial court that the findings, complaint, answer, decision, and other documents that were before the board corresponding to the clerk's transcript were admissible, but that the reporter's transcript of the proceedings before the administrative board, and the exhibits then introduced, were not admissible over objection. This ruling was predicated on the trial court's determination that under the holding of the Supreme Court in the case of Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75, 87 P.2d 848, and, under the then recent decision of the appellate court in Laisne v. California State Board of Optometry, Cal.App., 101 P.2d 787, the petitioner, in such mandamus proceeding, is entitled to a trial de novo in the literal sense, and that on such a trial the reporter's transcript of the board's proceedings is not legal, competent evidence. Subsequent to the trial of the instant case, the Supreme Court granted a hearing in the Laisne case, and has since, by a divided court, rendered its decision in that case. See 19 Cal.2d 831, 123 P.2d 457.

The exact question as to whether the reporter's transcript is admissible on the trial of the mandamus proceeding has been determined adversely to respondent in the case of Dare v. Board of Medical Examiners of State of California, Cal.App., 127 P.2d 977, this day decided. It was there held that such transcript, at the request of either party, is admissible, and that it is error to refuse to admit it. That the error in excluding this evidence was prejudicial is obvious. The trial court found that all but one of the charged violations were barred by the statute of limitations. Appellants urge that the evidence produced before the board demonstrated that the statute had not run when the complaint was filed. This evidence, had it been introduced and believed by the trial court, would have warranted the trial court in sustaining the order of the board.

Respondent urges, however, even if error in excluding evidence was committed, that the matters presented on this appeal have become moot. This contention is predicated on the following facts: The registrar rendered his decision in February of 1940. By that decision the license of petitioner was suspended until February 19, 1941, “and until defendant makes restitution to the Board of Trustees of the Napa Union High School satisfactory to the Registrar of Contractors. * * *” The case proceeded to trial in April, 1940, and judgment was entered in July, 1940. Thus, when judgment was entered, the one–year period of suspension was still in effect. This judgment, when entered, was erroneous for reasons already stated. Respondent urges, however, that the condition attached to the suspension––i. e., make restitution “satisfactory” to the registrar––is void, and that, since the one–year period fixed in the order of suspension has expired, the issues presented on this appeal have become moot. The trial court held that the condition in question “imposes upon the petitioner compliance with conditions which are not specific and which are not just.”

We agree with the contention of respondent that the condition imposed is invalid. The board imposed such condition purporting to act under the provisions of section 7095 of the Business and Professions Code St.1937, p. 1229, as added by St.1939, p. 391, appertaining to contractors. That section authorizes the registrar, in a proper case, to suspend the license of a contractor for a fixed period, and under subdivision c, the registrar, in addition, may: “Impose upon the licensee compliance with such specific conditions as may be just in connection with his operations as a contractor disclosed at the hearing * * *.” The contractor urges that the condition here imposed is neither specific nor just. It seems too clear to require extended argument that the condition in question in not specific. We have no doubt that, under the section in question, the registrar may require, as a condition, that the licensee perform the work or pay the other party the amount spent by it in having the work completed in accordance with the contract, or other reasonable condition, as long as such condition informs the licensee specifically what he must do. Such condition, no doubt, would be “specific” and “just.” But to provide that restitution must be made “satisfactory” to the registrar is certainly not to inform the licensee with definiteness what must be done before he can have his license restored. Such condition directly violates the terms of the grant of power. The section requires the condition to be “specific.” The condition here imposed is indefinite, unrestricted, inexplicit and unparticularized. It places in the hands of the registrar the discretion to determine what conditions must be performed by the licensee.

This holding, however, does not require a dismissal of the appeal. If, on the retrial, the trial court shall find that the findings of the board are supported, the trial court should then, by writ of mandate, remand the proceeding to the board with instructions to impose, if it be so inclined, a proper condition, or to dismiss the proceeding. The administrative mandamus proceeding with which we are here dealing is equitable in nature, and is as broad in scope as the exigencies of the case require. Drummey v. State Bd. of Funeral Directors, supra, 13 Cal.2d page 82, 87 P.2d 848. The ends of justice require that if respondent is guilty of the violations charged, and if such violations are not barred by the statute of limitations, and if the board believes, in its discretion, that some condition should be attached to the order of suspension, that such condition not entirely fail because the condition imposed was beyond the power of the board. The board, obviously, should be permitted to rectify its error.

The judgment appealed from is reversed.

PETERS, Presiding Justice.

KNIGHT and WARD, JJ., concurred.