*1 Helvering v. Ed. 605, 83 L. S. S. Ct. U. ; 969, L. Bd. 1427] Gerhardt, 304 S. 405 S. Ct. U. 8. S. Grosjean, 291 U. Trinity Farm Const. Co. v. very 327.) The Ed. Cal. L. Rev. Ct. L. see cases except bidding requiring competitive federal statutes (10 U. competition” impracticable secure “where of the United (g) S. 5-240 1201), Regulation C. see. Army to secure impracticable it is provides States “ State, Federal, competition: (3) price When the fixed Dairies, (Penn authority.” municipal, competent or other 1941) Milk Court Commission, (March Inc. v. Control Pennsylvania; Common County, Common Lancaster Pleas of & (Pa.), wealth Rohrer 37 D. C. discharged and of mandamus is
The alternative writ petition peremptory is denied. writ Houser, Bdmonds, J.,
Gibson, Shenk, J., J., Curtis, J., C. J., J., Carter, concurred. In Bank. Mar. A. No. 17578. 1942.]
[L. LAISNE, Appellant, E. v. THE STATE W. CALIFORNIA al., Respondents. OPTOMETRY et BOARD OF *2 Savage Young H. A. Appellant. Lawrence W. for Lavine, Craig B. Morris and A. Bianchi as Amici Morse Curiae on behalf of Appellant.
Earl Attorney General, Warren, Brown, Thomas and Lionel Coakley, Johnson, I. J. Albert W. Hutchinson and Chas. Deputies Attorney General, Respondents. for Hill, Lindersmith, McCaffrey,
H. E. P. Forrest Maurice M. Friedman, Walls, Leonard Doyle, Elizabeth Glenn V. Shel- ' Elliott, don D. Stanley Morrison, Turrentine Ed- Lowell Respondents. win J. Owens as Amici on behalf Curiae in- proceeding a writ of mandate CURTIS, J. —A for County to set aside Superior Court of Fresno stituted Optometry revok- State Board of an California order optom- registration practice ing certificate of appellant’s hearing superior After etry of California. in the state sought and denying relief judgment its court rendered of mandate and the tem- alternative writ discharging the against previously the board. restraining issued porary order brought to this appeal It from this an court. revoking appel- made order optometry board 3090- hearing provided sections after
lant’s license complaint Code. the Business and Professions by appellant of alleged violation sections the board before 3125 of the same code and board.determined appellant introduced that had violated on the evidence provisions said sections. filing of mandate petition writ
After the court, made superior respondent board motion *3 portions granted was to strike certain thereof and the motion of portions part in the stricken was that part. Included ‘ hear ‘. . . that this court have a prayer which read and the by only considered ing trial de nova.” The evidence and proceedings had was the record the superior the court board, the concluded before the and on this evidence court 3098 and 3125. appellant had violated sections the Drummey authority On of the eases of v. State Board the Embalmers, & Funeral Directors McDonough Goodcell, 13 Cal. (2d) 848], and (2d) 1035, 1205], appellant 123 A. L. R. insists that right require trial in the mandamus he the the court had proceeding to what be in substance and effect conduct would nova, parties of which would a trial de the course the the have not the record made before board. We be limited to the purpose from record and for this decision assumed the right to introduce appellant trial denied the the court any compelled and him to submit new and material evidence the solely upon proceedings and before his case record validity optometry. judgment appealed The board of deny- hinges of the court from the action trial therefore ing the appellant right If to introduce such evidence. the order of trial court respect proper, was then this judgment hand, should be affirmed. On the if other trial court denying right, was appellant error such judgment should be reversed. specific ruling
The a case was that on proceeding in mandate in superior questioning court validity of revoking an by order an administrative board or suspending a practice profession, license to the court had judgment to exercise an on all independent of the material facts pe- relative to the of whether the issue titioner particular had violated the gov- sections the act erning particular profession. In the exercise independent must was held that con- sider all material evidence was not confined to the record proceedings before board. If the court were so confined, exercising judg- independent it would be ment on all the facts It the issue. was further material held independent judgment by that such on the facts a court necessary because the entire of the state III, 1, vested in certain courts enumerated article section state, VI, article section Constitution and also person because the whose had been revoked license suspended of the action board would otherwise deprived property right process without due of law guaranteed by both the federal and state Constitutions. necessity independent judgment for the exercise of an regard receipt on the facts and the material evidence ap proceedings of the board is less record of the before the following parent powers gov from the facts. separate depart ernment of the divided into three state are (Article III, legislative, judicial. ments—the executive Constitution.) judicial pow section State-wide the state courts, viz., may er three enumerated exercised Appeal, and the Supreme Court, the District Courts of su VI, perior (Article courts. section state Constitu *4 tion.) body judicial power exercise No other can state-wide (Pacific amendment. except as the of constitutional result Pac. Casualty Pillsbury, Coast Pillsbury, Supply Co. v. Western Metal If, agency 1917E, 390].) therefore, some Ann. Cas. the enumerated jurisdiction, other than one of with state-wide amendment, by exer- sanction courts, without is power, such action to exercise attempts cises or of state Constitution of articles the violation direct cited above. complete separation be no
It that there can is true changing ever social order. powers government of of its own existence equally department It true that each degree of the functions of exercise must in some some de rigid line over which one That there can be others. first recognized has since the partment been cannot traverse re There still separation powers. of test of the doctrine department fact: When one however, this unalterable mains, complete power has agency or an thereof exercises another, expressly limited to then by the been Constitution of the Constitution. implied violates the mandate action pro If, case, superior court the mandate instant before the ceedings presented the evidence were limited to by if the board were conclusive board, or of fact exercising court, the com then on the the board would be courts. plete judicial the enumerated power reserved to was a vested appellant’s right practice optometry to Exami property right. (Hewitt v. State Board Medical 315, Ann. ners, Rep. 113 Am. St. Cal. 590 on, 182 (N.S.), 896]; A. v. Alders Cas. L. R. Suckow against 965].) proceeding In the Cal. 247 rights “procedural” process due him board all him, notice, right appear and answer viz., were to accorded against subpoenaed were charges Witnesses made him. present A and a rec reporter taken. was evidence was proceedings. At conclusion ord made the whole hearing revoking appellant’s license an order made practice. complete an exercise of the then would be This contemplated that was framers his Constitution, appellant deprived consti would go into law right right a a court of tutional unless he had validity the introduction question order prove he did commit the material evidence to alleged. acts numerous occasions
This and on problem not a new one prevent called the courts this state have been powers. separation complete the doctrine of extinction of Am. Downey, early Pryor at- Rep. 656], declaring unconstitutional statute for want of court void tempted validate *5 836
jurisdiction, the Legisla court page at “The stated 403: ture of California judicial function, cannot and exercise person in liberty life, State can be or deprived of property without again due process page of law.” at And 406: “If we assume the to have validated the Forster act sale . . . then the up lands which act . to the date of the . . belonged to the heirs Pryor, of Nathaniel M. from that date became property the persons, of other was and this transfer accomplished by legislative the And if act alone. even we indulge could of parties deprived fiction that to be their estates act, hearing had notice intended and and opportunity produce witnesses, why show cause the act should not be passed, species this would have been a trial, Legisla power hy the exercise ture.” [Emphasis again page 408: “. . . A And at added.] judgment must inquiry, be the ‘of sufficient to result due satisfy the discretion and of the officer convince law, authority jurisdiction whom the to decide questions duly (Denny been v. involved have vested.’ Mattoon, Allen, (Mass.) [Emphasis 2 added.] Chief Justice [361] Beatty 380 [79 in a Am. Dec. concurring 784].)” opin ion Superior Court, 225], Glide Pac. Cal. following pertinent makes the page 30: at “Vested observation rights property rights placed by and contract are the con protection courts, stitution under the of the where alone the questions they depend of law and can fact finally In Superior Court, decided.” Chinn Cal. 580], provided Pac. statute for the formation of irrigation district, right superior appeal with the superior ground court. The act on that court refused to VI, the statute was unconstitutional in violation article superior brought section 1. Mandate court to force to act. The writ was and the denied act held unconstitu well-recognized at tional, stating page 480: “It is a principle courts, origi where either appellate, nal or provisions, fixed legislature jurisdiction.” cannot either limit or extend Again, City Angeles, 134 Los the case Griffin App. (2d) 655], page at 771: “The it is stated jurisdiction superior courts conferred constitu by any tion, away legislature. and cannot be taken act ” 530].) Hevren, (City Tulare v. involving ques- group of cases language found passage of the Workmen’s Com- which arose after the tians conclusively Insurance, of 1913 Safety Act pensation, annulling an issue under discussion here. determines the because Accident Commission Industrial award made employment, of” the injury not arise “in the course did Casualty v. Pills- the court Coast Pacific refer 24], bury, had occasion *6 legislature provision giving power the constitutional to and also to the Industrial Accident Commission create following On found the VI, page section 1. is article legisla- provision that the “The is statement: constitutional all may liability part on the ture 'create and enforce a any injury in- compensate employees employers to their for employ- of their employees in the course curred the said may legislature to declare that the estab- proceeds ment.’ It empower to settle an industrial accident board and lish may legislature liability disputes concerning the (Article XX, authority given. section under the so create ju- by such be an exercise This action board would is, legal effect, purpose a court. power. For that dicial judicial power VI the state Section of article vests the sitting supreme in a senate, impeachment, 'in the as court court, superior courts,’ and appeal, courts of district may legislature establish. Under inferior local courts as the to legislature authority provision the be without would give judicial any general tribunal. to board or power state disposes of whole Except purposes local section it in power of vests all of the courts the state and therein, leaving at expressly disposal named none legislature. Authority legislature create another with over this new state tribunal and vest it sought for the constitu- must be elsewhere class cases only section of article tion. in the aforesaid It is found this section measures and limits XX. follows that It respect [Emphasis . legislative power that . .” added.] Pillsbury, 172 Supply Metal of Western The case 1917E, 390], is Ann. also Cas. why of the of statements reasons particular interest because is an exer- Industrial Accident Commission the action of the ease, in the Pacific Coast power stated cise of as that commission has supra. points The out court oaths, testimony subpoenas, take to administer issue party contempt. on the adverse Notice is served punish for given is opportunity he hearing by to answer. After the commission, it findings makes and files its of facts and its award. The are “conclusive and final.” pages states at 412-413: commission, “The in exercis- ing powers, performing these is precisely the same functions performed that are by any passing upon questions court in brought before it. . . . The Industrial Accident Commission given is binding judgments. to make . . orders or .
“In the special enabling absence con- provision of the stitution, judicial power could not be Indus- vested trial Accident Commission. Section VI article provides constitution provision]. It [quoting clear the Industrial Accident is not one Commission designated. grant the courts It equally thus clear that the contained in jtost cited, the section unless constitution by other provisions, is exclusive.” modified [Emphasis however, concludes, The court sec- added.] tion 21 sufficiently XX article modifies section article VI permit Industrial Accident Commission act court. language quoted may from the eases above cited
directly applied to the instant situation. The factual *7 distinction is that in the Industrial Accident Commission hearings rights involved, the individuals were whereas two agency hearing in the in or board the instant ease the state both acting against 'However, thereof is in one individual. prop- deprivation situations of a there exists the issue the erty right same and vested interest remains the whether the aligned against one private one another or individual is against it the the state institutes action state. Because is against does whom the action person not follow that the may personal or brought finally property of a deprived be right by body other than a court. involving Commission powers
The cases
the Water
cases
equally applicable
are
instant situation. These
in the
case, supra, and
are
in
also
referred to
6
Equalization,
v.
Oil Co.
State Board
case
Standard
(2d) 119],
Cal.
557
held
certiorari
Pac.
rulings
administrative boards.
would not lie to review the
Tulare
opinion
Shaw
concurring
of Chief Justice
Pac.
533
Commission, 187
Water
v.
Water
Cal.
Co. State
materiality
is of sufficient
874],
particularly
is
relied
and
542 the Chief Justice
directly quoted
page
At
here.
to be
is
judicially
acting
it
is
“If
the Water Commission
states:
rights
of indi-
determining
and titles
doing
it
so because
is
it
capacity
in that
private
property,
real
and
viduals to
general juris-
fully
acting
court as
as a court
would
as a
real
adjudicates the
acting
it
title
diction would be
when
”
cases.)
(Citing
property.
aforesaid,
vest
VI,
is to
effect
section
article
mentioned the entire
the courts therein
legislature to vest
It is
within the
state.
not
and
body
general
power to establish
any
other
property. The Water
right
private
and title to
declare
superior
not
courts of the state
Commission
one
is
thereof,
given
powers
court or be
could not be made such
jurisdiction limited
with
is
an inferior court
not
or
towns, townships, counties,
cities
incorporated cities, or
jurisdiction is
its
statewide.
contrary,
On
and counties.
pur
comes within
Consequently, it
court which
of the
not within
view said
section
power.
legislature
give
that commission
Cas.
(Western
Pillsbury,
etc.
[Ann.
1917E, 390,
Pillsbury,
etc. Co.
Pacific
24].)”
case was
Water Co.
concurring opinion
This
in the Tulare
Irrigation District
Mojave
expressly
River
approved
Superior Court,
In that
724].
superior
brought
prevent
petition
prohibition
was
Department of Public
reviewing an
court from
order
Division)
provided by
lb of
(Water
section
Works
as
ground
on the
granted
Water Commission Act. The writ was
certiorari
provided
could neither be on
the review
action
appeal.
It was further determined
original proceed-
superior
regarded
could not
as an
lim-
ing
could be introduced
because the evidence that
rendered.
that could be
ited was the
approved
subsequently
Both
were
preceding
cases
Dist.,
Irr.
Nevada
Power Co. v.
the case of Yuba River
*8
had
plaintiff
In
that case
Pac. 128].
brought
to
suit
applications
appropriation pending
for
sought
so
to the water
quiet title to
claims
determine adverse
reversing a
upper claimant.
as between itself and an
sustaining
by
demurrer
upon an order
based
court,
page
trial
this court stated
525:
in
at
“The court
said
(Tulare
Com.,
cause
Water
supra)
Water
State
further
clearly
question
priority
intimated
neither
between
nor
claimants
or
existence
nonexistence of unappropri
questions
ated waters in a
finally
stream were
to be
deter
holding
mined
the water commission. The effect of this
sought
to
section,
be obviated
enactment
a new
(Stats. 1923, p. 162),
known as lb
providing
hearing
for a
superior
applications
court
permits
appro
priate
court, Mojave
water. This
in
River
Dist.
Irr.
v. Su
perior Court,
724],
841 jurisdiction make board to single the issue of court to the being as said board order, but would also be consider inhibition which, the judicial functions under with invested legisla Constitution, 1 III of of section of article the state government no of the has department tive state findings evidence, repose The review of in such board. this of Bar Governors which and conclusions of the Board consist, in a re-exam consists, contemplates term and should proceedings record of the by ination entire court kept and required before are said board as these provisions court under due course transmitted to this section 26 Bar Act.” That the State although conflicting evi Governors, Bar based on Board of dence, binding court; can and not on this that the court are board; findings of sometimes has refused sustain weight pass and can and does estab by record now a review the whole well evidence (In re lished, numerous cases. been so stated in has Bar, 214 State Stafford, 208 738 Pac. Fish v. Cal. [284 Bar, 281 State 214 (2d) 937]; Cal. 215 Clark v. Cal. Pac. [4 (2d) Bar, 216 58 944]; Bentson v. Cal. Pac. State [13 [4 disciplinary (2d) 512].) here that Pac. It should be noted the record of proceedings this court has confined itself to may be proceedings the Board of Bar Governors. This before said to the board an administrative be due fact that supra], effect Bar, has no arm this v. State court [Fish one snch the instant our conclusion that situations as may any new evidence. a court consider material Alderson, 182 247 Cal. Pac. Such v. cases Suckow [187 1042]; Riley, 187 Pac. Brecheen Cal. Cuf Examiners, App. (2d) Dental Cal. Board field Board, Examiners, (2d) 522]; Medical Pac. Fuller v. (2d) (2d) 171], many earlier App. Appeal eases Courts of do decided the various District con previously expressed. Those cases were affect views were decided sidered on review certiorari and before Equalization, Oil case Standard Co. State Board of day supra, Fuller was one final. decided became [The case, peti Oil Co. after the decision the Standard but hearing for in that ease to this tion was made court.] Oil certiorari not and Standard Co. case decided that constitutionally proper be the method of review. could not quotes length
That case at from Camp the case F. Van S. v. Fish & Game Commission, App. 702], page wherein was stated at 767: “Except local purposes Const., VI, section art disposes see. [State 1] of the power of whole the state and vests all of it expressly courts named therein, leaving at the dis none posal legislature.” The Standard Oil Co. case was followed the ease of Whitten v. State Board California Optometry, 115 A. R. L. *10 1], expressly in page which it was held at 445 that “in the grant a absence of power a state legislature board cannot exercise functions and the powerless power confer such it.” prac case That tically long list of by respon overrules the cases relied upon dents, Alderson, supra, such as Suckow v. and kindred cases. Drummey case, supra, holding that court must exercise independent judgment its on facts, logically the the followed Whitten case.
In the Ray Parker, case of (2d) 15 Cal. (2d) constitutionality of Milk 665], the the Stabilization Act attack, as under as a whole was it had been in the earlier of Jersey Maid Milk Products Brook, (2d) ease Co. v. (2d) that, The court held the ex with 577]. ception giving the Agriculture section the Director of the power damages to fix certain conditions, under the act was police a constitutional of the exercise of the state. Be act, gives of section 737.11 cause of the the the director or suspend hearing to revoke a milk license “after due complaint signed a verified and filed with the director ” by any person, argued it is interested that this case is thor oughly respondents’ consistent with the contention as here inbefore set out. Ray Neither the facts nor the law of the case warrant this conclusion. present
In the case of optometry the board had made an revoking appellant. Appellant order the license then insti- an in superior contesting action the validity tuted court the question on appeal of that order. The before this court is the type or granted extent “review” that should have been superior appellant determining question court in the the had whether he committed certain acts violation of the provisions Optometry Act which would justify the order any revocation his license. No per- revocation of Agriculture in Director of made license had. been son’s 735.6 Section Bay Jersey Maid case. either the case “may any the director milk that order provides of the act It competent jurisdiction.” reviewed court be of a license only of revocation be after order would aggrieved by the contesting of that order the director and the scope of question of the party court superior that as involved same “review” would become the only present authority case. of the On appellant his full constitu- type of review that would afford as rights trial de nova outlined complete tional would (2d) 75, 87 Pac. in that the decision case. [13 85: page said “The It was there at 848.] strong presumption come with a board before court correctness, complaining rests on the their and the burden party the board’s decision is con- to convince the court ’’ Undoubtedly, trary weight of the evidence. contemplated in this “evidence” reference board, record of but such addi- proceedings before party either tional evidence desired introduce before Bay case, supra,, trial court. It should cites noted Agricultural Superior quotes Prorate Com. from Court, (2d) 253], com- App. provided by 735.6 menting type of “review” section *11 page of the milk court in that case stated at 524: act. The quite right “It is clear it was intended the of review that right a party put an interested should to in have issue be- question arising superior a of the fore a court as a result any might promulgation order the commission make.” quotation Bay opinion cites After this the the Standard Oil Whitten, McDonough cases, supra, which, Co., and propositions course, all for the that an administrative stand powers; judicial cannot full that an adminis- board exercise findings of and trative board cannot make conclusive fact deprive person an order which would a of a thereon base a person right has a right; that such the to property and above, In superior in court. view trial de nova a just for argue Bay to case stands the con- idle that the seems trary propositions. Gaylord City to Pasa made the cases Reference is Oil ; Globe Cotton Mills v.
dena,
The East District case relevant case; quotation Gaylord therefore, for its from the comment need be made on it. clearly distinguishable
The Globe Cotton Oil Mills ease is present from the situation ease. There the Fish and application Game Commission had refused on to act permit authorizing petitioner a certain quantity to use a plant, ground fish in its reduction that would be exercising functions to do so. This ordered a writ of mandate to held issue and that such actions would not transgress judicial depart- the exclusive functions of the we “revocation,” ment. Here have “refusal issue” not thus, McDonough case, as was supra, determined right no property that, peti- was involved. But more than not contesting findings tioner was of the commission and thereon, requesting the order merely based but was that the act in the commission first instance. regard language to the containing numerous eases agencies may
effect that administrative make fact given therefor, of expediency again the reasons it must pointed fact-finding out that it is alone present situation. It involved is the facts plus depriving person the order thereon found based of a right property power. full which is the exercise of the question If been one whose license has revoked fails *12 then, ruling law, course, order in court the ad ministrative board will stand because such failure is an ad questioned if However, mission violation. the order is
845 pe- state law, Constitution this then under the nova issues involved. given on the be a trial de titioner must pri has devoted the discussion been point Up to this pro necessity trial de nova because marily to of a 1, sgetion VI, III, 1, and article section visions of article one of A further reason of this state. the Constitution binding fact-finding power is con if equal strength is that if courts boards, and administrative upon purely ferred exer do not boards’ actions reviewing the administrative on well as the facts as independent cise an state provisions of both the federal process law, the due support In been violated. will have Constitutions Ohio supra, cites the cases proposition Drummey case, 287 Borough, 253 S. Ben Avon U. Valley Water v. [40 Co. 22 Benson, 285 U. S. ; 64 L. Crowell v. 527, S. Ed. Ct. 908] Yards Joseph Stock 285, 598]; and 76 L. Ed. St. S. Ct. [52 L. Ed. 720, Ct. 80 38 8. States, United 298 U. S. v. [56 Co. strength of holdings of cases and the The actual those 1033]. conflicting opin other holdings in of numerous view (See Mur States by Supreme of the United ions Court S.) (U. Co., 18 ray’s Imp. How. Hoboken Land & Lessee Ross, 548 S. ; 167 S. 272 Bauman v. U. [17 L. Ed. [15 372] Pacific v. Union 966, 42 L. Com. Comm. Ct. Ed. Interstate 108, L. Ed. Co., 541, 56 S. Ct. R . U. S. R. 131,133 308]; Tod, rel. Tisi v. S. States ex U. United Bowers, U. cchio S. S. Ve Ct. L. Ed. Del Hoyt, Ltd. v. 229]; Swayne & 190, 80 L. Ed. S. Ct. L. Ct. Ed. States, 297, 304 S. United 300 U. S. leading subject by 659]) have been of much discussion law. authorities field of administrative considerably supra, case, v. Benson has been The Crowell Chicago & by Coal Dock weakened the case South Ed. Bassett, S. L. 309 U. S. Ct. 732]. court, Hughes, J., that there per C. held Benson ease the wo (1) jurisdictional” questions of whether were fact: t upon navigable (2) waters and whether injury occurred relationship existed, that could not of master and servant agent. conclusively Yet determined the administrative Justice, ease, Chicago written the Chief in the South also question of fact of whether man was a member of the finally question to be a a certain vessel was held crew of agent. to rec It difficult determined question of fact and ognize this latter any distinction between *13 “jurisdictional” the so-called facts mentioned above. Obvi ously, if the a man was member of vessel, of the crew agent jurisdiction would not have to make an Longshoremen’s award under the Harbor and Worker’s Compensation Act. 1424; Stat. 33 U. S. C. and S. C. U. Supp. IV, seq.] sec. 901 et opinion Drummey case, in the supra, recognized that
there was some cases, confusion the federal and must be appear exceptions admitted that the cited cases to be general gives agencies rule which federal administrative power findings However, to make conclusive of fact. this does not detract strength language from the of the of these cases when applied question powers of the of state-wide ad- agencies ministrative by as provisions controlled III, of this Constitution state. Article federal section judicial Constitution power vests the of the United States in Supreme one “in Court and such inferior courts as the Con- ordain, gress may from time to time establish.” Under then, federal Constitution with exception the Su- preme Court, Therefore, there are enumerated courts. question of by whether a body certain inferior created Con- gress exercising power relatively unimpor- is becomes tant for the acting judicial capacity, reason if it is a may as be classified one of the Con- “inferior courts” which gress given power hand, pre- On to create. the other out, viously pointed state, under the Constitution of this there may are certain enumerated courts which alone state- exercise wide There- the exclusion all other bodies. fore, body if a other than one of makes the enumerated courts findings findings pro- fact; those determines that the violated; visions a certain been statute have issues a order renders which de- has the effect person priving property right, a valuable action such aggrieved denies party process guaranteed the due of law by him Constitutions, the state and federal unless ac- such questioned body may tion such be court of law. It kept always should in mind that the evil of administrative guarded against fact-finding action which must fact-finding power power, but the conclusiveness of the coupled order with the based on the made right. deprive property person would of a Such is the full judicial power, can be exercise of in this state language enumerated courts. The exercised one of the is there Drummey case, supra, federal cases cited of the on the powers of restriction peculiarly applicable to the fore the state boards under of state-wide administrative powers is found a case page On 85 of the Constitution. Co. v. Joseph Yards St. Stock quotation from with the supra. quotation is concluded States, United following system is no warrant our there sentence: “Under competent court of a for the view that designed any legislative arrangement can be circumscribed beyond the limits going action give effect to administrative ’’ (cid:127) strength or authority. Regardless *14 administra to federal weakness of that sentence in relation may directly to administrative agencies, applied tive it be exer agencies limits the of this The state state. Constitution The federal judicial power of enumerated courts. cise to the previously cases that federal administra cited, which hold there may fact, of are tive boards make conclusive controlling of a state power fore not the on this court when question. board administrative is in powers of The distinction between the state-wide admin ex istrative and boards is also boards federal administrative authority boards in this state istent between with state-wide VI, sec by legislature. By and local the bodies created article 1, Constitution, tion the state the courts, municipal is state vested the enumerated courts legisla established, may be “such inferior as the and courts city town, may any incorporated or town ture establish in ’’ county. is sim ship, county city provision latter This Therefore, ilar provision Constitution. the federal acting rulings local boards in a has been held that (See judicial may Impe on certiorari. capacity be reviewed Supervisors, rial Water No. Board Co. v. Supervisors, ; Miller & v. Board Cal.1 Pac. Lux 780] Commrs., 30 ; Ludolph Police Board Pac. 304] City ; Nider Com App. (2d) 211 293].) That mission, App. (2d) rulings might certiorari bodies be reviewed local recognized Oil cases. in both the Standard holding administrative other states state-wide Cases rulings their agencies might and that power exercise may distinguished on the might on be reviewed certiorari in the recent ground. The Court of Arizona Supreme same Board, 57 Batty case of Arizona Dental Ariz.-[112 State (2d) 870], so held and criticized the Standard Oil Co. However, case. the court failed to consider the difference be- provisions tween the VI, 1, article section of the California VI, Constitution and article section of the Arizona Consti- provides: tution. latter power of “The the state shall Supreme Court, be vested in superior courts, justices peace, courts superior such inferior to the courts as may provided provision quite law.” This is similar to that of the federal Constitution see. but [art. 1] clearly distinguishable VI, from article section the Con- state, stitution this legislature which confers power only jurisdiction. to establish inferior courts with local Respondent urges providing board for a court hearing legislature after board, determination in- tended that the board’s action or at least should be final a court should be confined to consideration the evidence at hearing introduced before the As board. evidence matters, legislative such to refer intent we have legislature to the act of the proposing last to the voters of the state constitutional amendment Constitutional [Senate give legislature No. purports Amendment 8] right officers, confer “to boards or commissions If proposed to make decisions.” amend- adopted by people, legislature ment will authorize right to confer exer- administrative bodies judicial power, respondent cise board the same legislature possesses. legislature *15 Obviously, claims the now the in of the proposing opin- said constitutional amendment ion power. that it now no such has questions argu- on oral
Other were raised in the briefs and they minor their ment, importance but are of and determina- way in no in this con- tion would affect our decision case. erroneously trial sideration of our decision that the de- right competent the to introduce appellant nied material superior court, in evidence át trial this action reversed, opinion that should be is our is so ordered. J., Carter, J.,
Shenk, J., Houser,
concurred.
G-IBSON,
J., Dissenting.
dissent.
C.
—I
a
in
case is the culmination of
majority opinion
this
The
court,
1936, has
in which this
since
over-
series of decisions
of administrative
long
rules in
field
established
turned
majority
announced
principles
The constitutional
law.
many administrative
vitally impair
effectiveness of
will
expert conduct
rely
we
for the
agencies upon which
de
from this
government.
It follows
complex affairs
state
agency
without
is
state-wide administrative
cision that a
affecting
binding
a
fact
power to make
determination
legislature confer
of the
rights
property
and that
act
that,
It is held here
ring
authority is
unconstitutional.
authority
statutory
agency
is
with
although such
vested
re
professional licenses,
a
there is
to revoke
by the admin
hearing
quirement
after
and determination
ain court
tried
board the entire matter must be
anew
istrative
is
in this case
en
petitioner
that the
of law.
conclusion
means,
language
of the author
a trial de nova
in
titled to
‘
case,
new
opinion
expressed in
a
majority
another
as
hearing
. Such a
hearing
second
.
.
hearing,
time
a
contemplates an
trial
the controversial matter
entire
originally
heard. It
same manner
which the same was
hearing
held,
but
a
previously
in no
sense a review the
previous
if no
complete
controversy,
same as
trial
(Collier
Astor,
& Wallis v.
hearing had ever been held.”
(2d) 202,
(2d) 171].)
Cal.
Pac.
[70
great many cases that
to 1936 it was established
Prior
pro
given
to revoke
where
state-wide board was
supervision of the
fessional licenses for cause and where the
the board
inquiry
to an
to whether
courts extended
authority,
no violation
regularly pursued
there was
had
its
son,
(Suckow v. Alder
provisions
Constitution.
Riley,
cisions have been by experts to severe criticism this field of cases, the law. of these first Standard Oil v.Co. Equalization, (2d) State Board 6 Cal. 557 Pac. (2d) 119], 1936, decided held that was writ longer certiorari would quasi-judicial lie to review acts state-wide agencies (See in California. Adjudication Bode,' criticism in Administrative in Califor cmd nia Its Review the Writ Certiorari, (1937) 25 L. 694; Cal. Rev. Turrentine,-Restore Certiorari to Review State-Wide in California, (1941) Administrative Bodies Comments, 275; Gellhorn, Cal. L. Rev. Administrative Law—Cases and n.) (1940) 819, case, The second p. Directors, State Board (2d) Funeral 13 Cal. Pac. (2d) held that decided writ mandate 848] could be used to professional review the orders of licensing fill procedural boards and thus gap caused the refusal to permit the use of certiorari for purpose. reinstate ment on professional mandamus of suspended licenses State Board of Funeral Directors sustained, was and it was required held trial court was under the state and federal independent Constitutions exercise its the facts as well as law. This constitutional obviously contrary doctrine, to the former decisions in this state, explained McDonough Goodcell, (2d) (2d) 1205], having L. A. R. Supreme resulted from recent decisions of the United States Court appeared which “man to make such a conclusion datory”. (See, McGovney, criticism in Administrative De im, cisions and Court California, (1941) Review Thereof, L. Cal. Rev.
This case is not opportunity the first which an has been presented to correct the error in Oil Drum the Standard mey long cases. So primarily as the issue remained one of procedure, irreparable however, damage there nowas required error involved in those decisions be possible, by rectified. itWhile was use of of man the writ date, to review the acts of state-wide administrative bodies degree and accord bodies a substantial finality, appeared resulting that the substantive evils from (Cf. procedural might Bodin be eliminated in time. error Mfg. son Emp. Com., Co. v. California Examiners, (2d) 935]; Webster v. Board Dental of Olive Proration etc. (2d) 992]; Com. *17 (2d) Pac. (2d) Cal. etc., Com., 17 Agricultural v. however, case, present in opinion 918].) majority The cor can be law which of constitutional a doctrine enunciates byor of the decision by reversal rected holding beyond far the rule goes present amendment. Directors, Funeral Drummey v. Board laid State down of immediately from although fact is discernible supra, that not require Drummey case did not opinion. the face by court, independent of an spoke but a trial nova de judgment, which independent judgment on the facts. This with reference to the evidence was to presumably be exercised cautionary produced board, tempered with the before the was given to be findings were that the board’s instruction (Drummey v. State “strong presumption of correctness.” op. cit. Directors, supra, 85; McGovney, cf. p. Board Funeral of de rule of supra, nova p. 129, seq.) et Under trial finality present case, however, no whatever is to be attributed agencies. This of state-wide requirement rigid nova, of founda a trial de based Constitution, longer of tions our can no be to affect mat said procedure necessary, ter only. therefore, of We it trace find reaching steps successive which court has followed in present its position.
1. The Procedural Problem. Equalization, Oil' v. Company Standard State Board of longer supra, could no it was held that the writ of certiorari reviewing used in this state state means the acts of bodies, notwithstanding statutory express wide administrative discussing authorization Without the nature therefor. particular (in act involved that ease the assessment tax), additional the court decided action the board VI, not have could been nature because article sec judicial power’ tion 1 all of the Constitution certain vests said, specified Furthermore, courts. the writ of certio was may only and, judicial power rari used to review be ing so, it not Board could be used review the act Equalization assessing This decision an additional tax. was soon followed others held professional not involved in the of a license revocation agency (Whitten Board a state-wide State California Optometry, (2d) 1296, 115 A. L. R. Pac. Chiropractic Examiners, Hartman Board Board Dental App. (2d) Jacobs v. Examiners, 24 App. (2d) (2d) 96]) nor suspension by the Commissioner Corporations of a permit authorizing (Schwab-Wilson the sale of stock. Corp. M. Daugherty, 15 Cal. App. (2d) (2d) 1057].) Since these duties were said involve an exercise judicial power, was held that neither the writ of certiorari nor prohibition writ was available to review such acts. None suggest of these eases that the statutes vesting this kind in state-wide boards are Bather, unconstitutional. they characterize the exercised as “administrative” nature, and the inapplicability hold that of certiorari and prohibition to review administrative orders is caused limited nature of these writs. *18 procedural From the of point alone, view conclusion this contrary weight
is to authority of both in California and elsewhere. many There are cases where the writ certiorari of has been used to review orders of state-wide administrative agencies power, whose quasi-judicial nature, while in not was by basic vested the Constitution in courts of law. These cases include assessments taxes of made Equalization Board of revoking State as well as pro orders (San fessional licenses. N. R. Francisco & P. R. v. State Board 12; Equalization, Alderson, supra; Suckow v. of Riley, supra; Rode, see, op. supra, Brecheen v. cit. p. Turrentine, op. supra, p. 280, McGovney, et seq.; seq.; cit. et op. supra, 114, 146, long pp. seq.) Furthermore, cit. et it has recognized extraordinary all law that, been common writs, adapted certiorari is the one best review acts to boards, quasi-judicial tribunals officers and which exercise power, although concededly such bodies cannot constitution ally judicial (14 exercise the basic law. courts of McGovney, 142; 534; J. 10 Am. L. R. 1357; C. S. Jur. A. supra, 147.) in op. p. cit. the Standard Oil case Until in in California well as was established doctrine the rest of the nation. effect of that decision and the ones prohibition which followed it was to limit certiorari and law. This conclusion as a review the orders courts of holdings supported the nature of is not certiorari heavily in cited. cases relied most cases The two Water Co. v. State Water the Standard Oil are Tulare Department Com., Pub. Pac. 874] Superior Court, Works v. 1076]. statutory proceeding that a each of these the court held cases agency in no formal a state-wide before opposing parties no notice to in which hearing authorized, was not contem procedure did which the provided, was guid merely for adjudication rights, was plate (Tulare issuing permit. agency preliminary ance of the 537; Dept. Com., supra, p. Pub. Water Water Co. State 221.) proceeding Superior Court, supra, Since p. Wks. v. otherwise, it quasi-judicial or judicial aspect, either had no lie. The would in which certiorari obviously was not a case case, draws a far dif however, Oil Standard decision language Chief Justice from certain ferent conclusion Company In ad case. concurring the Tulare Water Shaw, language was the basis the fact that this dition to mean certiorari could case, that it did not that decision in judicial used of constitutional to review exercise (Tur interpreted Oil case it to mean. power, as the Standard supra, Justice Shaw himself op. p. cit. Chief pentine, ‘ shortly case, It be conceded that said before the must Tulare power given suspend or the license to the board revoke duly practice is person admitted to medicine ... . That or exer its nature . . a board tribunal so authorized doing least in so estab quasi-judicial cises at well our lished decisions. function to decide property rights . citizen . . The determination right practice plaintiff guilty his should clearly suspended scope comes within the of these defini well tions. Nevertheless is now established in this state tribunals such as the boa/rd medical examiners . . . are not *19 sense; they exercismg judicial courts in the strict not ‘the are power phrase in the the state’ as that is used constitution of conferring . creating . . that the such boards and statutes upon powers . It is them such are constitutional. also settled . quasi-judicial that where board has exercised of subject in question, nature here its decisions that are of by way (Suckow son, supra, revision certiorari.” v. Alder 249-250.) pp. procedural point, therefore, On the the conclusion reached only in the Oil that lie Standard certiorari to re- will judicial view power by the exercise courts of law true erroneous. hold if appears The cases therein cited it particular sought act not to be reviewed does involve quasi-judicial whatsoever, functions certiorari will recognized This far principle not lie. from the rule Oil Standard case that the exercise of constitutional judicial power can be reviewed certiorari and that quasi-judicial acts state-wide can administrative boards not be procedure. reviewed this traditional
2. The Constitutional Problem. It immediately recognized holding that if Standard solely pro Oil case could be confined to matters of cedure, irreparable damage no had been since the cus done tomary kind of might review some provided be way. (Cf. other Rode, op. supra, 702-703.) pp. cit. A substi procedure tute was, fact, by this court created when formerly sanctioned use of writ in cases mandate (Whitten reviewed the writ of certiorari. State Calif. Board Optometry, supra.) long possible, by So as it was use of the mandate, relationship writ of be proper to evolve a tween the not agencies, courts and it did administrative seem upon. historically essential insist a return to the cor procedure rect strayed. (Cf. Bodin from the court had Mfg. Emp. Com., son supra.) Co. v. California (a) residting constitutional theories the Stand- from ard Oil decision. procedural case, however, error of the Standard Oil soon led to principles the announcement erroneous of con- Citing case, stitutional law. with Standard Oil which dealt constitutionality nature certiorari and with the delegation of quasi-judicial power, first it was said for the Optometry, time Whitten v. State Board California supra, p. 446, be would unconstitutional to confer quasi-judicial agencies. state-wide administrative Consequently, powers could which such boards exercised longer quasi-judicial. (See, rea- called criticism this soning McGovney, op. supra, 114; also, opinion p. see, cit. Supreme hearing, Superior Court on denial of Cullinan v. Court, (2d) App. 77 Pac. noted, 471].) point, It at should that the Stand- approved language ard Oil case itself to these which refers Co, (Standard quasi-judicial functions as in nature. Oil de- Equalization, supra, p. State Board Instead of claring vesting quasi-judicial functions state- the statutes however, unconstitutional, to be wide boards bring new the court these statutes within undertook by altering of the duties the nature doctrines delegated Thus, legislature. despite to such boards *20 degree legislature clear intended a certain indication that acts administra- quasi-judicial finality to attach com- under asserted constitutional court, this agencies, tive successively reduced later, has be seen pulsion, as will ministerial, boards make the duties finality as to so in the The nature. statement in quasi-judicial, rather than professional to the effect that cases and Cullinan Whitten revoking a quasi-judicially can act board not and does by the unsupported authority and contrary to license is both does That Oil case. case upon, Standard relied case it, classify power or delegation of such not invalidate exercise the constitu- boards do not say that these except to required for the to be therein judicial power asserted tional of a of certiorari. writ issuance requirements Con- upon the (b) Reliance federal stitution. Drummey case, it was taken step,
In the next reviewing court was upon a of mandate the was held that writ independent constitutionally required to exercise language upon rested conclusion part, on the facts. In this concerning quasi-judicial functions, but Whitten in the require ground decision was the asserted main for the process clause of the federal Constitution. ment the due Directors, supra, Funeral (See, Drummey v. Board State supra, p. 752.) former McDonough Goodcell, p. 85; in connection doctrine will examined in detail with at opinion present ease, but the majority in the discussion reliance point serve demonstrate the mistaken will Drummey McDonough cases certain federal Drummey “in The formula laid down in the case was cases. ’’ theory, This dependent judgment on facts. which had California, literally from the prior existence was taken Supreme Joseph language of United States Court in St. States, Stockyards United 298 U. S. Ct. Co. v. S. also 720, 80 L. Ed. Two other federal cases were cited 1033.] Borough, 253 Valley Water v. Ben Avon U. S. 287 Ohio Benson, 285 64 L. and Crowell v. S. Ct. Ed. 908] 76 L. conclusion S. Ed. U. S. Ct. 598]. process drawn from that the due these cases was clause required Fourteenth Amendment to the federal Constitution re-examine evidence which ad state courts to suspending professional ministrative boards had acted license. reaching this conclusion decision *21 ignored general rule followed system in the federal
which makes
findings
of fact conclusive if
supported by substantial
(Finality
evidence.
fact of
on
value
in an
domain proceeding:
Ross,
eminent
167
Bauman v.
S. U.
548, 593
966,
S.
42 L. Ed.
Crane
; see,
Ct.
v.
[17
270]
Hahlo,
142,
258 U. S.
214,
148
S.
66 L. Ed.
Ct.
[42
514].
Finality
duty
imported goods:
as
value for
assessment
on
Merritt,
Hilton v.
97,
548,
110
107
28
U. S.
Ct.
L. Ed.
S.
[3
83];
Kane,
Bartlett v.
16 How.
263
L. Ed.
[U.
.931].
S.]
[14
Finality
purposes:
for tax
Murray’s Lessee v. Hoboken Land
Imp.&
18
Co.,
;
272
Helvering
How.
L. Ed.
[U.
[15
372]
S.]
Rankin,
v.
123,
732,
295
131
79
U. S.
S.
L. Ed.
Ct.
[55
1343]; Phillips
Rev.,
v. Commissioner
283 U. S.
Internal
589,
608,
Finality
600
75 L.
mat
S. Ct.
Ed.
on
[51
1289].
ters of
in an alien deportation proceeding:
fact
United States
Tod,
ex
v.
131,
rel. Tisi
264
S.
133
68
260,
U.
Ct.
S.
[44
L.
Finality
Ed.
penalty
in assessment of
violation
590].
immigration
shipping
Lloyd
company:
law
Sabaudo
Elting,
329,
167,
v.
287
Soc.
S.
335
77 L. Ed.
U.
S. Ct.
[53
gov
Conclusive "determination
facts in the field
341].
regulation:
ernmental
Interstate
v. Union Pac.
Com. Com.
Co.,
;
222
541,
108,
R. R.
547
S. Ct.
56 L. Ed.
U. S.
[32
308]
Tagg
&
444
States,
420,
280
S.
Bros. Moorhead
United
U.
Ltd.,
220,
; Swayne
Hoyt.
-50
74
S. Ct.
L. Ed.
&
524]
States,
478,
300
304
81
Ed.
297,
United
U. S.
S.
L.
Ct.
[57
659];
Bowers,
Vecchio v.
296
286
280,
Del
U. S.
S. Ct.
[56
190,
229];
Indemnity
Co.,
80
Ed.
288
L.
Voehl v.
Insurance
676,
380,
166
77
87
L.
162,
U.
Ct.
L.
A.
R.
S.
S.
Ed.
[53
; Consolidated Edison
Relations
Co. National Labor
245]
Board,
;
L.
197,
206,
U.
229
S.
83
Ed.
305
S.
Ct.
126]
[59
67,
Co.,
S.
73
Algoma
Federal Trade Com. v.
Lumber
291 U.
315,
;
Com. v. Nel
-54 S.
78 L. Ed.
Federal Radio
Ct.
655]
Co.,
266,
627,
Ct.
77 L.
son
etc.
277
Bros.,
U.
S.
S.
1166,
406].)
process
Ed.
A.
clause of the
L. R.
due
general
imposes
federal Constitution
barrier
rule
(See Black,
findings
finality
of administrative
of fact.
Finality,
Theory and Administrative
‘Jurisdictional
Fact’
[1937]
Cornell
L.
Q.
369;
Tollefson,
Administrative
Finality,
[1931]
Mich. L.
Rev.
839, 840; Landis, Admin
istrative
Law
and the
Courts,
[1938]
47 Yale
L. J.
519;
[1941]
[1925]
8 Geo. Wash.
Mich.
L. Rev.
L. Rev.
233;
409, 508.)
[1938]
Va. L.
Rev.
653, 655;
clause
process
due
is inevitable that
The conclusion
no restriction
imposes
Amendment
the Fourteenth
Fifth
clause
process
the due
which
action of the states
Amendment,
government.
federal
upon the
impose
does
Supreme
United States
fact,
are, in
decisions
There
decision)
hold
which
(not mentioned
Court
Amendment
of the Fourteenth
process clause
the due
administra
vesting
state
prohibit
does not
if based
are final
agency
make
of fact
tive
Metallic
v. Dahlstrom
(Helfrick
evidence.
substantial
curiam,
per
141],
N.
affirmed
Finally, the conclusion in decision concern ing process requirements the due of the Fourteenth Amend ment resulted, not from failure to consider the other fed eral field, decisions in the hut from misapplication of the three decisions requirement were cited. in those cases of a re-examination of administrative exception general fact was an to the doctrine of administra finality expressed above, tive and it was limited spe to two particular cific situations wherex the factual determination jurisdiction involved the constitutional particular of the agency. Thus, in establishing public, rates for utilities it was finding held that an administrative that non- rate was confiscatory subjected should be scrutiny same legislative declaration to that effect would accorded in order might assure itself guar that the constitutional just compensation antee of (Ohio Valley had been met. Water Borough, Co. Ben Avon supra; Joseph Stockyards St. supra.) v. United States, A clearly recent case indicates exception this to the rule of finality is limited phase rate-making power. (Railroad of the Com. v. Rowan & Oil Co., Nichols U. Ct. S. S. 1021, 84 1368].) L. exceptional Ed. The other in situation jurisdiction volved an issue of fact which the agency depended provisions within the of the federal Consti Thus, Benson, tution. it was held in supra, Crowell v. that the existence of master question and servant relation and the injury whether the upon navigable occurred waters were facts if which, erroneously determined, might permit agency operate scope power. outside the of its constitutional *23 finality findings The rule of administrative of fact could applied, therefore, required not be because the court was satisfy itself that constitutional limitations had not been ex (Crowell Benson, supra, ceeded. pp. 56-58.) The limited of in exception, also, nature this is indicated the cases volving ordinarily the adminis same statute which hold that supported by trative of fact are if conclusive sub (South Chicago Bassett, stantial evidence. & Dock Coal ]; 24 Va. U. S. S. Ct. L. Ed. 732 Q. 653; 274.) Upon L. Rev. L. examination Cornell of many defining requirements proc federal of due cases findings of con- ess clause so far as administrative fact are Drummey deci- longer disputed that the be cerned, it can through conclusion its wholly erroneous sion reached with dissimilar cases deal three federal upon reliance sporadic exceptions conceded to be which are and situations finality. (See, McGov- general rule of administrative to the v. Ben- Dickinson, Crowell supra, seq.; 134 et ney, op. p. cit. Determinations Administrative son; Review Judicial of 1055; Black, of Pa. L. Rev. Fact”, 80 U. “Constitutional Finality, Theory and Administrative Fact” “Jurisdictional Q. 349.) L. Cornell requirements Con- (c) Reliance California stitution. present adopts in
Although majority opinion in announced extends the conclusions decisions, theory in McDonough it concedes effect in so-called “man- underlying those decisions was error. The (see, datory” McDonough v. requirement of the federal cases supra) Goodcell, been re-stated and the federal cases are has only. majority The for the persuasive support now said be sought opinion case, therefore, provisions in the California Constitution. position reasoning support of this is based
The separation misapplication powers. doctrine of position (1) judi- advanced, simply stated, this: the basic power cial certain the state can be vested named law; binding (2) power courts of to make determina- affecting pri- tions of to issue orders based thereon fact and traditionally rights property, vate which has been said to quasi-judicial nature, constitutes an exercise of only by a basically performed so that it can be proposition accepted has been doctrine of law. first throughout generations; an- the United States the second lesser, quasi-judicial power new rule as nounces a supported which is not our cases or decisions elsewhere. recognize It from hitherto well- results the failure to adjudicating have established class inferior functions which long “quasi-judicial” called It been been nature. has separation powers cannot established that doctrine govern- rigid separation interpreted as a and absolute rather, is, general designed It mental functions. doctrine vesting basic branch of prevent government (Hart, In- the hands another branch. troduction Administrative Law, [1940] pp. 146-150; Cush- *24 860
420-448; Green, man, 383.) The California decisions have not 29 58 Am. Yale L. Bar Independent J. Assn. 369; Separation [1935] Rep. Regulatory Commissions, 407, 2 Univ. of 410-414; Governmental Powers, [1920] Chi. Rev. [1936] followed L. 51 Pol. Sci. any 385; [1941] different [1934] pp. Q. rule. (See, Riley, (2d) Parker v. 18 83 (2d) Cal. Pac. [113 873]; Ray Parker, 15 (2d) 275, Cal. 290 (2d) Pac. [101 665]; Agricultural Superior Prorate Com. v. Court, 5 Cal. (2d) 550, 568 (2d) 495]; Pac. Globe Cotton Oil Mills v. supra; Housing Authority Zellerbach, 200 448; 5 Cal. Jur. 658, 677, 683.) L. A. County Dockweiler, [1931] ; Brecheen v. 19 Cal. L. Rev. Riley,
Although
any
the basic
one of the three co-ordi-
government
note branches of the
can
by
be exercised
only,
individual branches
are
governmental
there
incidental
may appropriately
activities which
be
exercised
or all
agencies
government.
of the
of the
Certain of
functions
these
may
legislative
be a normal
incident
action or
ordinary
an
accompaniment
judicial
of true
action, but unless the basic
particular
govern-
branch of the
involved,
quasi-legislative
ment
quasi-judicial
or
power may
agencies
exercised
government.
be
other
Thus,
recognized
has
it
been
that the ascertainment of facts
upon
hearing,
based
taken in
evidence
the course of a
while
ordinary
judicial
an
incident of a
proceeding, may
have
also
appropriate
place
legislative
action
or executive
government.
(See
branch of the
Brown, Administrative Com-
missions
Judicial
Power,
[1935]
Minn.
L. Rev.
261,
As
Supreme
United States
Court has said
leading
strictly
case: “Even
where
is essential maintain
the distinction
between the
and other branches
government,
recognized
still
it must
ascertainment
facts,
reaching
or
taken
conclusions
evidence
hearing
interested, may
en-
parties
course
tirely proper
legislative,
exercise
executive or
distinguished
powers.
legislature,
from
had it
judicial,
fit, might
through
inquiries
seen
have
com-
conducted similar
members,
.
.
specially
mittees
its
constituted bodies
.
might
have used methods like those
tribu-
(
& R.
nals
the endeavor to elicit the facts.”
N.
Louisville
L.
Garrett,
R.
U. S.
S. Ct.
Battelle,
see, also,
Ed.
It therefore becomes
is both a
there
ary legislative
may properly
function which
be devolved
upon
agencies
government
violating
pro
other
without
(Parker
Biley, supra)
visions
Constitution
v.
and an
adjudicating
which, though judicial
inferior
function
in na
ture, may
performed by
agencies
government
other
judicial
amounting
without
an
to
unconstitutional exercise of
power.
frequently
The contention has
been
stat
made that a
vesting power
agency
ute
in a state-wide
administrative
upon
make orders based
determinations of fact is unconstitu
vesting judicial
tional
power
agency.
These conten
tions
repeatedly rejected.
Parker,
have been
(Ray v.
15 Cal.
(2d) 275,
;
Riley,
Pac.
Brecheen v.
[101
665]
Cal. 121
;
Pac.
sive there is no delegation agency. (Globe Cotton Oil Zellerbach, supra, p. Mills v. authority, of this to see the face trend of is difficult majority escape the func
how the could the conclusion that case, while Optometry present tions of the Board of classi adjudicating function, properly partaking of the were delegable properly quasi-judicial in nature and fiable as two agencies. explanation found in the to. In Whitten v. previously decisions referred California merely might supra, have Optometry, Board the court State procedural repeated error Standard Oil exercised, holding that, quasi-judicial functions were while involved, thus was not prohibition. of certiorari or presented for the use basis was wholly unneces however, added the case, The court licens professional of such sary comment that the functions doubt longer quasi-judicial called ing boards could no *26 classified these upon cases which had so previous was cast Directors, Board Funeral v. State functions. of rephrased said 81, and it was supra, page this statement was or judicial vesting either forbade the Constitution that the majority The boards. quasi-judicial powers in administrative quasi-judicial does not mention present opinion any function functions, seems to be and the inference adjudicating classified power must be partakes of the exercised may as constitutional uncon be an it would The conclusion that law alone. courts authorize delegation judicial power to of basic stitutional upon de professional licenses board revoke upon if sub conclusive founded which are terminations fact this state support in the finds no decisions stantial evidence jur other contrary decisions of to the prior 1936 and Spears, v. Examiners (See: Board Medical isdictions. State dismissed, 563, 1498], L. 54 A. R. error 79 588 Colo. [247 398]; ex rel. 72 L. Ed. State 158, 508 S. Ct. 275 S.U. [48 136, 156 196, So. Whitman, 116 Pla. 199 So. Williams [150 Examiners, 259 Ill. ; L. R. State 705, 95 A. 1416] Klafter S.) (N. 1221, B, 1914 46 L. R. A. 193 Ann. 15 N. E. Cas. [102 250, Co., 317 482 N. E. Chicago Rys. Ill. Nega [148 Co., 175 Hunter v. Consol. Coal 1057]; L. 39 A. R. Colfax 145, 1037, 157 N. W. Ann. Cas. W. 245, 308-319 N. Iowa [154 College ; Iowa Eclectic Med. D, 1917 B, 803, R. A. 1917 L. 15]
863
Schrader,
24,
87
659
20 L. R.
Assn. v.
Iowa
N. W.
A.
Examiners,
355];
387
v. Board Med.
Minn.
State
North,
N. W.
State ex rel. Hurwitz v.
its of the California Consti- tution, VI, 1, provides section which article that the power senate, sitting shall “in the state be vested as impeachment, supreme court, a court of in a district courts appeal, courts, superior municipal may courts established . . . and such Legislature* courts as the inferior may establish in any incorporated city town, township, or county city county.” Cases from all other states and system from the distinguished federal are majority theory California legislative creating branch in inferior courts to local limited inferior Therefore, courts. argued it is state-wide administra- jurisdictions tive boards other may be inferior considered courts constitutionally which can judicial power. exercise true There are two answers to this. The first is that such adminis- agencies trative are not in fact considered inferior courts jurisdictions they in which exist, repeatedly has been held that such bodies ju- cannot exercise constitutional dicial power. (Cf. Batty v. Arizona State Dental Board [Ariz.], 870, 873; Cushman, The Constitu- tional Independent Status Eegulatory Commissions, Q. Cornell L. The second answer is that reliance provision begs question at issue here since it assumes that grant basic has been made to the licensing agencies state-wide in this state. provisions VI, article nothing section add separation powers provision III, if article section *27 quasi-judicial power, rather than constitutional power, actually involved, is violation either constitu- provision tional present. is
Finally, then, let us examine
cases
the
which
majority
the
in support
cites
conclusion, (which
the
contrary
is
prior
cases in this state
to 1936 and to
throughout
decisions
country,)
the
that the
to make an order of revocation
upon
binding
based
a
determination
of fact
an exercise of
judicial power,
constitutional
rather
quasi-
than an exercise of
from
cases,
mayWe
exclude those
derived
power.
already
to he erro
case,
we have
shown
Standard Oil
which
majority
upon
group
first
of cases relied
neous. The
principle
the constitu
merely states the fundamental
law,
only by
be exercised
courts
tional
can
Constitu
with such
by special
bodies invested
Rep.
Am.
(Cf.
Downey, 50 Cal.
Pryor v.
tion.
opinion.)
second
majority
The
cited in the
and other cases
Commission.
the Industrial Accident
group of cases involves
general separation
powers
repeat
cases
Insofar as these
cited,
nothing
to the cases first
they
doctrine
add
The decisions
Pa
one.
principle stated is the traditional
Pillsbury,
865 permits granting authority preliminary in water the ordinary quasi-judicial power incidents of none of the where quasi-judicial judicial nor found, was neither were there agency. (Tulare upon Water Co. State power the conferred support 537.) Comm., supra, p. These decisions do Water judicial power is majority that basic the conclusion in dictum the concur present situation. The involved interpreting ring only that, an the means as aid opinion issuing legislative delegating duty permits, the intent probability an unconstitu that the court could consider delegation judicial might been involved power have tional authorize commission interpreted if were the statute op. cit. Turrentine, adjudicate property. (See, title to real time, court very however, that same supra, p. At in licenses professional the revocation of recognized that by certiorari. only quasi-judicial power volved reviewable 1042].) (Brecheen Riley, 187 Pac. Cal. [200 majority in group of cases relied final they noted first that Bar Act. It should be volves the State authority point the constitutional furnish direct consistently held they have which are cited since the cases by the legislature determinations not intend the clid though upon sub to be final even based Board of Governors Shattuck, 6, 12 Pac. (In stantial evidence. re Governors is 998].) It has also been said that the Board Bar, (Fish v. an arm of the court State Bar, 12 Cal. (2d) 937]; Cal. Furman v. State Pac. findings are (2d) 212, 12]) its and that (In special agency. re Peter merely intermediary of a those 124].) Insofar the nature sen, as Bar judicial these State power is involved statute, interpretation given decisions a basis for authority suggestion there is contradicts disbarring attorney requires judicial examination May the Own (See, Turrentine, Bar Set Its the evidence. But Order, 200, 214, seq.) et 34 Mich. L. Rev. House validity it is clear conceding assumption, of that even judi attorneys particular is a matter of discipline courts have asserted inherent cial concern over which the power. (2d) 699, (See, Lacey, In re disci 935].) If involved there basic therefore, explanation from plining attorney, of an comes attorney peculiar relation which the bears system. particularly This obvious view of the fact that theory when was announced in the Shattuck thereafter, apparently satisfied that the revoca- tion suspension professional of other licenses involved quasi-judicial the exercise which was reviewable Examiners, (See, certiorari. Painless Parker v. Board Dental *29 It Bar 67].) that the State follows cases do support majority consti- conclusion tutional if an would be involved administrative agency binding fact empowered were to make determinations of suspending the basis revoking profes- of which orders sional licenses issued. were
3. The Practical Problem. interpretation placed by upon our state Constitution majority opinion unsound, is interpretation as was the placed upon the federal Constitution in the McDonough decisions. the absence of consti- Once tutional requirement point on this understood there is no possible justification remains for result present Any case. rule which a requires com- plete judicial retrial be each case where admin- held istrative action deprivation right results in the of property a is It unworkable. kept majority must be in mind that opinion principles announces law that of necessity apply affecting to all fact prop- determinations of erty and are not li- professional limited revocation required try questions censes. Courts will be to of fact in by agen- countless situations heretofore settled may many by cies. In such cases those facts be determined jurors, certainly qualified no trained better than adminis- weigh trators to frequently evidence in cases involve subjects. technical must also consider that the admin- We agency stripped will and author- prestige istrative ity necessary efficiently perform enable it to functions to its if rely upon the courts will neither record made before findings any finality What nor accord its whatsoever. hearings agency by conducting purpose useful can an serve in such eases? ac- treat review of administrative
We cannot judicial in- requiring tion an identical procedure static finality degree accorded vestigation in each instance. agencies carry out created to of administrative policy for legislative question purposes primarily importance legislature issues of such fundamental government determined the administration of must be law-making body. The reference the intention of imposing from legislature precluded by our Constitution courts, non-judicial provide it cannot duties our thus agency to a court. from an administrative appeal direct 717, Court, 202 Cal. (Mojave Superior River Dist. Irr. 724]; Astor, Collier & Wallis v. (2d) 171]; General cf. Federal Radio Com. L. Ed. Co., 464, 469 S. Electric 281 U. S. Ct. 289 U. Bros., Nelson S. Federal Radio Com. v. 1166, 89 R. 406].) 77 L. A. L. S. Ed. Ct. however, sought many instances, legislature indi has degree finality given cate the find to administrative legislature ings proper so, of fact. Where it to do occasionally specified has a review of the administrative original proceeding action in which the facts agency determined are the administrative accorded finality de in the superior at all but are determined nova (See, Act, Deering’s Beverage court. Gen. Alcoholic Control *30 3796, Deering’s [1937], [1937], 46; Act Gen. Laws Laws sec. 986, Code, 1647, 1937, 13.12; page Act sec. Labor see. Stats. also, Astor, In in 240; supra.) Collier & certain Wallis v. legislature merely stances the indicated that the find has ings particular agency of fact of a or officer administrative high finality. degree (See, are to a Labor be accorded 234; Code, Code, 1937, p. 1598, sec. Stats. Public Resources Deering’s 3355, 1939, 1132; [1937], Gen. Laws p. see. Stats. 3421, 9.) legislature pro has Act sec. In other statutes generally authority under there vided that action taken making any court, provision may without reviewed (Agricultural as nature and extent of the review. to the 317, 924; Code, Code, p. Vehicle sec. 735.6, 1935, Stats. see. in 141.) regulatory statutes most of p. Stats. including Code, corporated in the Business and Professions its legislature has indicated involved, the statute here be accorded as decision intention that the administrative agencies vesting in finality possible by much such any provision suspend licenses without to revoke (Dental Prac judicial at all for the review of such action. Code, 1670-1680; Medical Prac Act, & Prof. tice Bus. secs. 2360-2408; Optometry Act, Code, & Prof. sees. tice Bus. Act, Bus. & Prof. Code, 3090-3106; Pharmacy secs. Act, Bus. Code, & 4210-4214.) Prof. secs. there
Where is neither a statutory constitutional nor re- quirement that a make determination fact or re- weigh the evidence upon which the agency administrative acted, duty branch adequately is fulfilled a review which questions certiorari extends A law involved. would, review issues lawof course, include questions agency as whether the has regularly pursued authority it, vested in whether it has arbitrarily acted there whether is substantial evidence to support its determinations fact. Our decisions have recognized that rulings questions administrative of law cannot finality. questions may be accorded Such deter- conclusively only by exercising mined a court constitutional (Bodinson Mfg. power. Emp. Com., v.Co. California Upon (2d) 935].) Cal. issues of fact, however, requirement where there is judicially the facts be statutory determined and no that the indication review was meant to to re-exami- extend questions fact, uphold nation of court should unless it found that determination is there finding. support rule, is no substantial evidence to This accepted jurisdictions, which other can be re-established only by overruling here the recent decisions we have shown to be in court has declared a rule error. Where re-examination, clearly erroneous, that, upon it has seems duty reject it both a and a and to state the correct rule, (See, Burnett, further Hart v. to avoid confusion. 646, 668; 600; Houghton People Austin, Rep. 677]; Lynch, Am. 7 Cal. Jur. fully considering a said, “If, former As court has after wrong, decision, judge it becomes is convinced that policy, pro- whether it will simply question public ... the law to in- good of evil than to restore its duce more fear, without tegrity ought . . ‘such cases be examined . reluctance, rather have the without than *31 and revised perpetuity ... impaired character of our law quoting Austin, supra, p. 667, (Houghton Chan- error’.” v. Kent, overruling previously in conclusion reached cellor 415.) Austin, 46 in & Loan Cal. Savings Society v. in duty apt particularly concept This majority of this court only Not present situation.
869 error, the error con engaged perpetuating self-induced but logically upon other stantly situations create un reacts of a example, For where the functions sound distinctions. agency proper are involved would be local administrative judi classify as majority position its activities under the exactly func while the same certiorari, cial and reviewable on agency even be performed a state-wide could tion Elliott, Cer (See, quasi-judicial in nature. as classified 586.) If Board, L. Local 29 Bev. tiorari and the Cal. quasi-judicial, analysis, agency the duties each are majority recognize Similarly, po that fact. court should suspending sition to an unsound distinction between has led a grant where refusing license professional license and eject person from busi each instance is to result (Cf. years. number of engaged he for a ness which has Directors, supra; etc., Drummey v. Funeral State Board of McGovney, supra, Goodcell, supra; op. cit. McDonough v. majority p. 134; 21 taken position R. C. L. complications further opinion can lead unfortunate in this the law. field of herein, clear to me that
For reasons forth it seems set in following decisions this court should be overruled expressed contrary herein: they sofar are to the views (2d) Cal. Equalisation, v. Board Standard Oil Co. State Board (2d) 119]; Pac. Whitten California 115 A. L. R. (2d) (2d) 1296, Optometry, 8 Pac. Cal. Directors, Funeral Cal. State Board of McDonough Goodcell, (2d) (2d) 1035, 123 L. R. (2d) A. (2d) 1205]. be treated proceeding present in mandamus should (Board v. State proceeding in certiorari Trustees aas Equalization, Board of R. of the trial court should 96 A. L. 775]), affirmed. Edmonds, Traynor, J., concurred. J., and ’ rehearing April for a was denied Bespondents petition Edmonds, J., Traynor, J., voted J., Gibson, 1942. C. rehearing. for a