BUSINESS MANAGEMENT CORPORATION v. DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF LABOR STATISTICS AND LAW ENFORCEMENT CAL ET AL (1942)

This is a proceeding in mandamus to compel respondents to grant petitioner a license to conduct business as a motion picture employment agency in the city of Beverly Hills.

The material facts are:

January 26, 1942, petitioner filed with respondents an application for an agency license to conduct business as a motion picture employment agency in the city of Beverly Hills pursuant to the provisions of the Labor Code of California, division II, part 6, chapter 1, St.1937, p. 230 et seq. The city of Beverly Hills has a population in excess of 25,000 and not exceeding 100,000 people.

In the form of application furnished petitioner by respondents was the query, “Places where agency will operate,” which question petitioner answered as follows: “Your applicant maintains a suite of offices which are utilized by applicant in the pursuit of said occupation and the rendition of said services at 9484 Wilshire Boulevard, Beverly Hills, California, and the applicant's business will be conducted and transacted at said offices. The applicant on an average of several times a week will call on behalf of its clients at RKO motion picture studios, Paramount motion picture studios, and other motion picture studios in the City of Los Angeles and at motion picture studios located elsewhere in the County of Los Angeles at such localities as Culver City and upon employers of motion picture artists wherever such employers may be found and interviewed, in places of business other than the premises of applicant, in hotels, restaurants or private homes in any locality in the State of California for the purpose of securing and negotiating employment for clients represented by applicant, and occasionally at such motion picture studios or elsewhere on locations where motion pictures are being produced, for the purpose of counseling or advising with said clients in connection with the rendition of artistic services by them at such places under existing contracts of employment.”

In addition to filing with respondents the aforesaid application petitioner delivered to them a check in the sum of $50 in payment of the annual license fee. January 28, 1942, respondents denied petitioner's request for a license on the ground that petitioner, under the foregoing statement as to where it would conduct its business, intended to conduct its business in the city of Los Angeles, which had a population of over 100,000 people, and, therefore, the annual license fee would be $100 pursuant to the provisions of section 1588 of the Labor Code, as amended by St.1939, p. 2111, which reads thus:

“Fees for licenses and renewals. Every employment agency shall pay to the Labor Commissioner annually at the time a license is issued or renewed a license fee of:

“(a) One hundred dollars in cities having a population of over one hundred thousand.

“(b) Fifty dollars in cities having a population of over twenty–five thousand and not exceeding one hundred thousand.

“(c) Ten dollars in all other places.

“All figures as to population shall be based on the latest United States Government census.”

This is the sole question necessary for us to determine:

If petitioner conducted its business as set forth under the above statement of facts, would its place of business be in the city of Los Angeles?

This question must be answered in the negative. Section 1593 of the Labor Code reads in part thus: “No license shall protect any other than the person to whom it is issued nor any place other than that designated in the license. * * *”

The word “places” used in section 1593 of the Labor Code, supra, means a place or places actually occupied either continually or at regular periods by a person or corporation or his or its clerks for the purpose of conducting a business. If business is transacted at a place occasionally but not at stated periods, it is not properly termed a place of business. (R. V. Smith Supply Co. v. Black, 43 N.M. 177, 88 P.2d 269, 270; Stephenson v. Primrose, 8 Port., Ala., 155, 33 Am.Dec. 281, 287; Arram v. Walters, 1936, 2 All England Law Reports Annotated, 959; Kirkwood v. Gadd, [1910] App.Cas. 422, 431.)

In Arram v. Walters, supra, an action was brought by an agent to recover a commission payable for the securing of employment by an employment agency. It was alleged by way of defense that the contract was unenforceable, since it had been executed at an address other than an address of the employment agency, contrary to the provisions of an act of the London County Council, which act made provision for the granting of employment agency licenses to persons “to carry on an employment agency of the description and in the name and at the address specified in the application.” Plaintiff was the assignee of the employment agency which had a regular place of business, for which it was licensed. The facts disclosed that the employment agency had been instrumental in obtaining employment for defendant, a musician, at a theatre. This employment was discussed by the agent and the owner of the theatre at a conference in a restaurant and at various other places, and the contract of employment actually signed at an address other than an address described in the agency license. The court gave judgment in favor of plaintiff, holding that the acts in connection with the contract which occurred at places other than the registered place of business of the agency were merely incidental to the transaction.

In Kirkwood v. Gadd, supra, the court held that the Money–Lenders' Act of 1900, which required that a money–lender “shall carry on the money–lending business * * * at his registered address or addresses,” did not mean that every stage and every incident of every part of the money–lending business must be transacted at the registered office. Lord Atkinson in the decision of this case at page 431 of [1910] App.Cas. says:

“In one sense every step, every item, in a long or complicated financial or commercial transaction may be said to be ‘business,’ but I think it is obvious that in the phrase ‘carries on his business' employed in this section, as in the phrase ‘carrying on business' employed in the 4th section of the Companies Act of 1862, the words ‘carries on’ must be held to imply a repetition of acts, the sum of which constitutes the ‘business': see Brett L. J., Smith v. Anderson.¹

“The money–lender's trade is in itself a lawful trade. And it is, I think, no more essential in this than in any trade or business that every act necessary to complete a contract of the class which it is the purpose and object of the trader to enter into and carry out should be performed on the premises of the latter, in order that his trade may be correctly described as being ‘carried on’ in those premises.

“If one takes by way of example the case of a house decorator, or of an ordinary retail dealer, who delivers at the house of his customers the goods he sells, it could scarcely be seriously contended that the former carried on his business at the houses belonging to his customers, which he decorates, or the latter at the houses of his customers, where he delivers his goods. I fail to see on what principle the words when applied to a money–lender should be used in a sense and meaning so much narrower than that which they bear when applied, in the ordinary use of language, to other traders, unless, indeed, it is to be assumed that it was the paramount object of this statute to prohibit all communication between a money–lender and his customer on business matters by post or telegraph, and oblige the borrower to frequent the registered house or office of the lender and carry out there every detail of each transaction––an assumption for which there is, in my opinion, no warrant to be found in its provisions.”

Applying the foregoing rule to the facts in the instant case, it appears that petitioner maintains an office, which is its fixed place of business, in the city of Beverly Hills, but that from the very nature of the business which it conducts and as an incident thereto it is necessary for its agents to visit various moving picture studios, hotels, and restaurants which are located in other cities in the State of California. The transactions which occur at such places are merely incidental to the conduct of petitioner's business. They constitute but isolated acts in connection with the business which petitioner is conducting. Studios, restaurants, and private homes cannot in any proper sense be considered places where petitioner is conducting its business. Many acts connected with the conduct of the business of operating a motion picture employment agency transpire at studios, commissaries, or restaurants adjacent to the various moving picture studios, and conversations with prospective employers often occur over luncheon or dinner tables, which practice corresponds in many respects to luncheons and dinners attended by lawyers, advertising agents, and businessmen generally, and it cannot successfully be contended that the place where such conversations occur constitute the participants' place of business. It is immaterial whether such conversations occur between a motion picture employment agent and a prospective employer, a lawyer and his client, or a businessman and a prospective customer.

Therefore, since from the facts in the instant case it appears that petitioner's only place of business was in Beverly Hills, it was entitled to receive the license which it sought.

For the foregoing reasons, let a peremptory writ issue as prayed.

FOOTNOTES

1.  (1880) 15 Ch.D. 247, at pages 277, 278.

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concurred.