*1 only testimony really would be of if it were taken Such value determining purpose money for the how much should be credited, mortgage. collected, if to the Rheas’ chattel judgment unjust
Thus, effect, on its face was permit Hake to have full the chattel mort amount of gage deficiency against foreclosed, property sold, levied Rhea, pay $7,800 require Mr. Wied to as rent Mr. property. Mr. Rhea’s judgment is reversed. Griffin, J., Coughlin, J., P. concurred. Dist., Div. Nov. No. 21404. First One. 1963.]
[Civ. Petitioner, THE LIQUORS, INC., SUPERIOR PECK'S AND COUNTY OF SAN THE CITY COURT OF KAPLANIS, FRANCISCO, Respondent; J. GEORGE Party in Real Interest. *3 Barceloux, Goldstein,
P. M. Burton Bar- J. Goldstein celoux & Goldstein for Petitioner. Respondent. Appearance
No for Party Irvin Real Interest. Goldstein BRAY, prohibition, mandamus, P. Petition forof J. writ seeking prohibit certiorari, writ, superior or other enforcing requiring court from an order answers to certain taking depositions. questions in the QUESTIONS PRESENTED. petition proper?
1. Is the subject prosecution petitioner’s 2. Are witnesses under justified Beverage and therefore the Alcoholic Act Control refusing ground possible to answer on the self-incrimina- selling requires tion? a determination of whether alco- This beverages price holic at less than the listed is a crime. RECORD. George Kaplanis, interest, an real commenced J. against Superior action in the San Francisco Court complaint Peek’s Liquors, Inc., charged in which in his amended he chapter the latter under 10 of the Alcoholic (Bus. damaging Act by selling Code, 24749-24757) & Prof. him §§ beverages appli- at retail than at less prices judgment $50,000 cable fair trade and demanded accounting. and additional sums after an an- Defendant denying swered, allegations the material of the amended complaint. deposition Thereafter Peek, of Maurice T. president secretary-treasurer executive vice of Peek’s Liquors, depositions and the employees of certain named During were taken. depositions the course these the wit- nesses questions ground refused to answer certain on the questions the answers to incriminating said might were tend perior Thereupon plaintiff incriminate them. moved the su- compelling court for an order said witnesses to answer questions. said That court determined that the answers to questions said could incriminating not be and ordered the proceeding witnesses to answer. brought This prevent the enforcement of said order. 1. THE PETITION IS PROPER. petition prays certiorari, prohibition, mandamus appropriate or other pleader writ. When a is in doubt type as to the of writ proper he should seek it is to state his
prayer in the
form,
petitioner
alternative
has done here.
“
(3 Witkin,
Procedure,
71, p. 2567.)
Cal.
§
cases uni
[T]he
formly
principle
follow the modern
pleading
that neither
mislabeling nor
prayer
a defective
justified
will bar relief
proper allegations
proof.”
(Idem,
p.
2568;
§
see also
72, pp. 2568-2569.)
When,
discovery
proceedings, the trial court issues
requiring
its order
questions
answers to
propounded,
peti
prohibition
tion for writ of
proper
is a
remedy by which a
*4
petitioner may seek review of
propriety
the
of that order.
(Oceanside Union
Superior
School Dist. v.
Court (1962) 58
180,185
Cal.Rptr.
Cal.2d
375,
a witness to answer upon application for may propriety of order be reviewed if the court ordered the prohibition, of the same as a writ attorney- give which would violate the answers witness privilege. client 2. INCRIMINATION. right com- It is that the determination conceded present- upon issues
pel the rests the decision two answers court, namely: (a) Is sale the court and to this the ed to trial beverages applicable prices at less than the listed exempt under the constitutional (b) crime? Is a witness testifying which, him, provision to an offense from barred the statute of limitations ?
(b) Limitations. Statute of
Answering question if first, it is clear that the second of a offense as to which the witness the might or offenses answers him, is or barred the statute incriminate ground may he not refuse to answer on limitations, possible respecting “If, at time of the transactions incrimination. testimony sought, which his the acts themselves giving offense, or, if, an at time did constitute longer testimony, punishable; the acts are no if statute creating repealed, if offensehas been the witness has been convicted, acquitted, or, if tried the offense and has satis by the law; is barred fied the sentence offense if pending prosecution no limitations, statute and there is any privilege against witness, under this he cannot claim constitution, testimony provision of since his could not be against against himself, and him in criminal ease used ' compelled against be witness consequently he is not ” (1894) 104 (Ex parte Cal. 528 P. himself.’ Cohen [38 Am.St.Rep. 423], added; 26 italics see 43 L.R.A. Superior (1905) 146 313 also Rebstock Court Cal. [80 Cal.App.2d Supp. ; People (1951) v. McCormick P. 65] 349]; (1896) and Brown v. Walker [228 644, 819], L.Ed. where the court U.S. states, S.Ct. prosecution crime, concerning if a for a “... interrogated, is barred the statute of witness is limita compellable ”) tions, he is to answer. [Citations.] *5 Beverage Act The violations of the Alcoholic Control charged plaintiff’s complaint alleged to have occurred April 22, 1959, 3, December to 1962. This action was from April 12, contends that the acts with filed 1962. Petitioner charged be which it is could of sections 24750- violations 24757, Code, Business and Professions and that such viola- (Bus. would tions constitute misdemeanors. & Code. Prof. ap- §25617.) If Business and Professions Code plies, statutory limitation for violation of those year. sections is one in interest contends that the Beal concerning interrogate peti- he violations which desires to under tioner’s witnesses are criminal offenses the Alco- holic Act. Assuming misdemeanors, would violations constitute petitioner’s protection against incriminating an- witnesses’ only apply occurring year could to one swers acts within upon time when to the individuals are called answer. As year elapsed more than one has since date of the last charged violation, has run the statute limitations as to possible charges, misdemeanor and the therefore witnesses compelled might can answer as acts which constitute However, petitioner that the misdemeanors. contends witnes- prosecuted Code, ses could be under Penal conspiracy crime, to commit a which would constitute a felo- Therefore, ny, years. the limitation for which would be three they required questions concerning could not be to answer occurring years acts answering. within three their requires contention our question This of whether the determination of the charged violations constitute misdemeanors charge could be a basis for under section subdi- (conspiracy crime) vision Penal commit a Code and (conspiracy injurious under subdivision 5 an to commit public morals). Selling prices. (a) at less listed than brings first question, namely, This us to the selling beverages than applicable prices of alcoholic at less listed ? a crime and Section Business Professions as amended Code1 1953, provides: “This division an police exercise of powers protection of the State for the safety, welfare, of the health, peace, people and of the State, morals to elimi- 1All code references are to the Business and Professions Code unless
otherwise indicated. manufacture,
nate the evils ling, and unlawful sel- of unlicensed disposing promote beverages, and and to temperance consumption in the use and of alcoholic bever- ages. subject hereby It matter of this declared that the highest degree economic, social, division involves well-being safety and of of the State all moral liberally people. its division shall be All ’' accomplishment purposes. these construed for the adopted provides: “It is the de- Section necessary regulate policy clared of the State that it is *6 sale, alcoholic and distribution of manufacture, control the fostering purpose beverages for of and within this State the consumption respect promoting temperance in their and for price In order to wars obedience the law. eliminate and unduly consumption alcoholic which stimulate the sale and of beverages disrupt orderly and the sale and distribution hereby policy thereof, declared as of this State that the beverages subjected the sale of alcoholic should to certain regulations. necessity for and The the enactment restrictions chapter is, therefore, of this declared as mat- ’’ determination. ter relating “No contract to the sale or Section 24750 reads: beverage any bears, or alcoholic which or the label resale brand, bears, trade-mark, of which the or name of container beverage which is producer or owner of the alcoholic and the open competition beverages of fair with alcoholic in and by any law general produced others violates class same this State following provisions of either of reason (a) buyer may be in such contract: That the which contained beverage except price stip- alcoholic at the will not resell the vendor, producer (b) or vendee of the ulated That the upon beverage require, sale the alcoholic bev- alcoholic agree erage purchaser not, that he in another, that the will price stipulated by producer turn, except at or resell ’’ vendee. “Wilfully knowingly 24752 reads: advertis- Section selling offering sale, any beverage at ing, for or alcoholic less any pursu- price stipulated in contract entered into than the price any minimum chapter, or in retail ant this effective department pursuant schedule filed selling person offering advertising, sale, so whether the contract, competition is unfair not a to the damaged any person thereby.” the suit of is actionable at portion amendment.) in 1961 was added (Italicized provided: in 1961 amendment prior to its Section he, other “All spirits at retail shall sold distilled execu- pursuant to contract beverage may be, sold Chapter 11 except shall chapter, pursuant to this ted chapter is all cases in which govern of wine in the sale provisions of any of the violate applicable. No licensee shall ’’ contract. such adopted rule department to this section Pursuant 1961 amendment substantially in the was included which “ (a) pack pertinent part 2 No in reads section age brand, trademark or spirits which bears of distilled at retail person control shall be sold name of the owner premises unless licensed consumption off the this State have been package first shall price for such a minimum retail with the department in accordance filed with any package shall sell (d) ... No retailer this section.... leader,’ used as spirits ‘Loss of distilled leader. loss is defined cost as such cost section, means below a sale except code, that a inclusive, of this 17026 to sections 17050 of provisions of section made under the sale below cost depart a loss leader sale. this code shall not be deemed comply reject any price which does not schedule ment shall subdivision, (e) offsale licensee shall sell with this package No spirits any price less than the effective at distilled permission is price package unless written filed of such granted department good cause shown and for *7 this ...” not inconsistent with reasons division. provisions 24755 are not changes in the of section These packaged selling distilled significant, as at times the all prohibited. spirits price was and is at less than the listed spirits “Every distilled manufac- 24756 reads: Section rectifier, brandy manufacturer, and wholesaler shall turer, showing price department a list with the file and maintain by spirits are sold to retailers prices which distilled at by spirits each distilled to retailers the licensee. Sales brandy manufacturer, recti- manufacturer, spirits distilled compliance in with the be made fier, and wholesaler shall ’’ department. on file with price list of the licensee department may adopt such 24757 reads: “The Section necessary for the administration to be as it determines rules take sueh 24756, inclusive, to and shall of sections alleged occurred from December violations are to have 2As the changes, necessary during April 3, is it set forth time, in the statutes herein involved. steps may necessary provisions as be such enforce adopted by sections the rules it the administration for (Italicized portion in was added amendment thereof." 1961.) “Every person
Section 25617 reads: convicted a viola- provisions tion of division for which this an- penalty punishment specifically provided or other is not guilty pun- division is of a misdemeanor and shall be ished a fine of ($500) not more than five hundred dollars by imprisonment county jail in the for not more than six ’’ months, imprisonment. both such fine and petitioner The pro- contends that a violation of visions of division 9 of the Business and Professions Code meaning a misdemeanor within the 25617. There- fore, by selling a violation of section 24752 alcoholic bever- ages applicable prices at less than the listed is a misdemeanor punishable in accordance with section 25617. Contrariwise, argues real interest application intent in section 25617 to limit the statutory provisions of that section to those division which denominate certain and in acts misdemeanors specificpenalty provided. no question raised herein has not been decided appellate courts of this However, state. dictum in the case of age Properties Department Allied Alcoholic Bever of P.2d (1959) may 737], Cal.2d support petitioner’s position construed to persuasive and is proper interpretation as to the of This ease 25617. dealt with plaintiff’s the revocation of the license for a viola tion 55.5, of sections 55.6 and 55.65 of the Alcoholic (now Control Act & Prof. Code, 24750-24757, Bus. 24850- §§ 24881, advertising to sell at retail spirits wine and distilled at prices). less than question the listed The sole raised case was whether the were constitutional. The court held the of the act to be constitutional. its act, among discussion of the said, things: the court other “Further, department provides rule of the that a violation regulations by of its rules and contrary a licensee be deemed will public grounds welfare and morals and for sus pension (Cal. revocation of a license. Code, Admin. tit. Although 1.) prosecution no criminal here, is involved should be general noted that the act provision, contains applicable prohibited sales beverages, that vio lations which another provided is not specifically *8 jail by fine, punishable misdemeanors in the act constitute Beverage Act, 65, now (Alcoholic term, or both. Control § (P. added.) Code, 25617)” 146; italics & Prof. Bus. § Beverage “The Alcoholic Con- The court stated further: protection of the ‘for the trol Act states that it was enacted people welfare, of the of the safety, health, peace, and morals man- and unlawful to eliminate the evils of unlicensed State beverages, and to selling, disposing alcoholic ufacture, consumption promote temperance in the use ’ & beverages. Beverage Act, 1, now Bus. (Alcoholic Control § ” 23001.) (Pp. 147-148.) Code, Prof. § regard language important in Also written dissenting opinion, in his as follows: “The Justice Peters Penalty: penalties The for a breach of the Pair Trade Acts giving injured right civil, only, to the to dam are injunction. penalty ages for the breach of or an [sic] Beverage price fixing regulations of Alcoholic Control Act (Bus. Code, penal, 24752) both civil & and the are Prof. department may suspend licenses, or crim revoke or institute ” (see majority opinion). 154.) (P. inal action foregoing, appears Supreme Prom the opinion Beverage is of the that since the Alcoholic Court purpose protection enacted for Control Act was of the peace safety, welfare, health, people and morals of the of this (§ regulatory 23001), provi state a violation of relating prohibited sions sales constitutes a misdemeanor meaning within the of section 25617.
Further, policy since such has been determined Legislature, petitioner’s it is that if did clear witnesses provisions violate the the Alcoholic Act question, they conspiracy could be convicted of a under either Code, subdivision or of section Penal “ provide persons conspire: two or more To com 1. [i]f injurious mit pub crime.... 5. commit To to the health, public morals, pervert lic or to or justice, obstruct laws,” they punishable or the due administration of the punishment accordance with the of that section (imprisonment in county jail, prison, state by fine, by imprisonment). (Italics both fine and added.) provide
Sections 24752 and 24755 do not that violations they expressly thereof provide shall misdemeanors nor do punishable violations constitute crimes or shall offenses construing 25617, providing penalty such. violation of the of division where is not *9 specifically provided for, question as to whether the the arises only apply provisions which ex- section was intended to provide pressly a a but do not make violation misdemeanor punishment provisions the therefor or also which while expressly provide prohibitive do not that the violation is a or a misdemeanor crime. of Alcoholic There are a number of sections the thereof misdemeanors but Act which make violations Control do not state penalty therefor. There are other sections penal- specify which make violations misdemeanors therefor; and those there other sections such as with ties are through here, which we concerned sections prohibit but do not such viola- violations characterize provide penalties tions and do not therefor. as misdemeanors argued legislative facts, Prom these it is intent provide penalties only a 25617 was to where section section expressly states is but a misdemeanor does a provide penalty therefor, and 24750-24752, not though as sections not characterize thereof
prohibitive, do violations as misdemeanors, apply. 25617does not section clearly appears
However, the intent otherwise. “Every person for a The states that convicted viola- section provisions this tion division for which anoth- of of of punishment provided penalty specifically or not for er is guilty (Italics is division a ...” this added.) misdemeanor. The real in interest would construe the section to “Every person a read in effect convicted of misdemean- specifical penalty punishment or for which another or is not ” by... ly provided punished for in shall If this division easily Legislature this what the meant to it could have say, is reason, done This is another so. construction erroneous for namely, that state unlawful” to certain sections that “it is specifically classifying act act do certain without as a providing penalty (for example or misdemeanor 25235- §§ 23404). proposed 25237, and The would construction leave § ” ‘ penalty. acts the violation these unlawful without important construing legislative history. originally The section review its enact 35, p. “Any person by (eh. 658, 1706) reads: ed Stats. § comply regu order, violates or rule or who fails pursuant made under or to the of this lation board, by who violates terms or conditions anc provi- hereunder, or who violates hóense issued violation or act, for each such sions noncompliance shall be liable punish- guilty a misdemeanor and shall be able a fine of not to exceed five hundred dollars jail county in the imprisonment of not to exceed six months (Italics added.) imprisonment.” both such fine and “Penalty.” This as then enacted was entitled is no doubt what the intended There lays wording section, specifically out then of the above as it Legislature, by (eh. what intended. Stats. section, p. complete This en- 1151) made a turnabout. “Every misdemeanor,” read: titled “General any of person a violation of convicted of a misdemeanor punishment for which another this act punished by specifically provided herein, shall be *10 by imprison- fine of not hundred dollars or more than five by county jail months, or ment in the for more than six not ’’ imprisonment. both such fine and change wording It is clear that there was a material in the Legis statute, of the 1935 statute from the 1933 and that the change in (People lature intended to effect a the law. v. (1946) People ; Valentine 28 142 Cal.2d P.2d 1] [169 (1951) Perkins 37 353].) 64 As Cal.2d above section read while the 1935 amendment was effect, “any provisions” did not make the mere violation of of the of the act a violation misdemeanor. Such had to have been penalty characterized as a “misdemeanor” before the could apply. according again, Here language to the title and of the section, Legislature merely it is clear that the intended punishment upon define the conviction of misdemeanor, a specifically designated as such in the act. (ch. p. Legislature 2175) Stats. § amended “Every person section 65 to read as follows: convicted a violation of this which anoth- penalty punishment specifically provided er herein, is not guilty be shall a misdemeanor pun- and shall be by ished fine of not than more five hundred dollars or imprisonment jail county in the for not more than six months, imprisonment.” both such fine (Italics and added.) The section was entitled “General for mis- ’’ demeanor. present (Stats. enacted in eh. p. 152, 1, 1023) substantially the same as the amended 65, supra, version of section but is entitled “Penalties.” As seen the 1937 enactment, amendment the 1953 wording
Legislature again materially changed of the sec- indicating from that indicated tion, different intention appears in- the section theretofore. It meaning expressed in the tended similar to that to revert although language original not enactment of although quite clearly substantially identi- expressed, version, possible interpretations, cal to the 1937 makes two light entirely each which is not unreasonable in legislative history. relating (the Both section 25617 and section 25618 felonies) similarly. commence Section 25617 commences: person “Every convicted for a violation....” Section “Every person felony commences: convicted of a for a viola any ambiguity stating “Every per tion. ...” If there is son convicted for a violation” rather than the ment in statutes state usual dealing offenses, “Every person with viola ting,” ambiguity interpreted harmony such must purposes objectives statutory the manifest of the whole (See (1954) scheme. 227, v. T. Bechtel Clements R. Co. Cal.2d P.2d 5].) 233 [273 It is stated that the Alcoholic attempted at prosecute persons Board no time has for the question the sections in here but has been content to limit remedy suspending itself to the revoking licens violations, es for such and therefore there has been an admin interpretation istrative of section 25617 to the effect that it apply does to violations of sections Assum 24749-24757. ing that mere failure to use one form of enforcement rather than another constitutes interpretation an administrative the effect that the form not used proposi is not available, a doubt, interpretation tion we such an prevail could not against interpretation Supreme which the appears Court *11 Properties to have made in the Allied ease, supra. Moreover, Joseph in George, Department Distributor v. of Beverage Alcoholic (1957) 149 Cal.App.2d Control 702, 710 773], court, stating P.2d after [308 a “where statute implementation needs construction, or regulation rule or contemporaneous . .”. administrative construction an agency charged administrative with its enforcement is enti great tled to weight, the (p. 710): court said “... it is also firmly that, established ‘Where there no ambiguity and interpretation clearly erroneous, such administrative inter pretation give legal does not long sanction to a continued ’ (California incorrect construction. Drive-In Restaurant
785 657, A.L.R. P.2d 147 Clark, 287, 294 v. Cal.2d [140 Assn. Cal.App.2d Equalization, State Board 1028]; v. Gunn of interpretation in 840].) of Buies 283, 287 [266 (Hodge plain meaning a statute void. conflict with the ease 86].)” In our McCall, Cal. P. opinion given in would be interpretation contrary to clearly erroneous. in the language 25617, as construed of section Supreme
light intimated history, as Bever Department Alcoholic Properties v. in Allied Court legislative purpose age Control, supra, and view that a to mean act, behind the must be construed 9 of the prohibited in division acts contained misdemeanor, and unless Code is a and Professions Business may be specifically provided, a violator another punished accordance with section 25617. misdemeanors, violations are such Therefore, as subject under petitioner’s could be witnesses felony charge conspiracy Code, to to a subdivision Penal misdemeanors, shown, and hereinbefore also commit such felony conspiracy charge; hence 5 to under subdivision they a concerning any testify act relative required to cannot upon conspiracy a which the statute has run. to parties stipulation of has been filed herein A any event, questions one of which was effect that need not be the trial court answered. prohibiting ordered answered prohibition peremptory a writ of issue Let expressed, our views herein court, trial in accordance with answer, requiring from said witnessesto Sullivan, J., concurred. MOLINARI, for the reason I do not J. I dissent Legislature it
believe it the intent make a crime was beverage price stipulated less than the to sell an alcoholic at persuaded I fair trade contract. am this conclusion eminently made it clear in because the has (Div. 9 of the & Alcoholic Act Bus. Prof. Code, incl.) that when intended therein §§ particular spe violation of the act crime it has make a meticulously language. cifically so in unmistakable said spe in which a violation is least 37 instances There are at cifically to be misdemeanor.1 three sections the declared 25004, 25170, 25171, 25172, 25173, 23301, 23403, 23670, 1§§ 25504, 25600, 25602, 25606, 25175, 25176, 25180, 25351, *12 definitely designated felony. offense is as a three other things sections it is stated that it is “unlawful” to do the specified any specific therein without statement that it is a felony misdemeanor or to do so.3 inAnd another it is section provided activity “prohibited”4 that certain is without stat ing prohibited.5 it is a crime do is to what thus It pro should also noted that there are other sections which vide beverages, for seizure6 or forfeiture7 alcoholic one section which it declares that nuisance to do the things prohibited.8 therein Turning appli- 24755, particularly to statute contracts, cable to the violation of trade at fair read pertinent prior times to the instant case9 we to find September Legislature chose to use the follow- ing language: spirits be, “All distilled sold at retail shall beverage pursuant may be, other to sold pursuant chapter.... contract executed this No licensee shall violate such contract.” (Italics added.) September 15, 1961, On re- pealed bearing entirely an section 2475510 and enacted new section applicable the same number and fair trade con- section, pertinent part, The said in “(a) tracts. now reads: package spirits. No distilled shall .. he sold at retail price a minimum package State ... retail for such unless department first shall have been filed with accordance (d) of this section. ... No ... retailer any package spirits shall sell of distilled as a loss . leader. . . any package (e) offsale licensee shall sell . . . No of distilled spirits price any price the effective at less than filed of such granted permission depart- package unless written significant (Italics added.)11 ment. It ...” 25607, 25608, 25610, 25614, 25615, 25616, 25619, 25630, 25631, 25632, 25633, 25656, 25657, 25661, 25662 and 25663. 23301, 25372 and 25603. 2§§ 23404, 25235 and 25237. 3§§ 4§ 25664. particularly 5It should be noted that this section is contained an (art. 3, 25656-25665, inch), §§ article which contains sections which activity, prohibited specifically relate to 8 of which state that the activ ity prohibited is therein a misdemeanor. 23666, 25174, 25236 and 25350. 6§§ 23660 and 23668. 7§§ 25604. 8§ April 3, 9Prom December 1962. history. 10See incorporate was 11The effect of the amendment rule 99 thereto department adopted by supplement pursuant fore § 24755 to rule- prior amendment it read to its reads, and as 24755 as it now specifically state that its declare or does not *13 terminology felony, nor it use the or does is a misdemeanor a proscription. It is also in connection its “unlawful” the respect of wine12 below noteworthy to the sale that with specifically provided has price the minimum sales license for a may suspend a department or revoke that the subject to limi- certain fair trade contracts violation of wine probe intent, we in our of the Again, tations.13 inclusive, applicable the to 25000 to look at sections selling pri- pursuant a schedule of selling of beer to written Legislature has the that in such instance ces, we find departure or variance there- specifically provided “any misdemeanor,”14 (Italics added.) by a licensee a from(cid:127) reading readily of the Alcoholic Bev- apparent from a It is Legislature has fit declare erage that the seen to Act merely be while others are sub- to a crime certain violations course, ject disciplinary is, The latter sanction of action. penal provi- there has been a violation of a applicable where disciplinary proceedings under The administrative sion.15 by 24200 to inclusive.16 the Act are covered sections suspend authority licenses is power and to revoke and XX, provided in of the Cali- article likewise proceedings disciplinary are not Such fornia Constitution.17 power granted by making to fair trade contracts 24757 with reference § price posting. 12By in of within the the sale wine was embraced amendment by separate provi provisions covered § thereto was of 24755. Prior § 24862. sion. See pertinent, reads, and as it at all times herein 24880 as it now read 13§ provisions any provides of of this “For violation the as follows: a of may chapter, department adopted pursuant chapter the or rules (a) offense, suspend For first not or as follows: revoke license exceeding days’ (b) offense, exceeding suspension, For a second (e) may suspension, offense, department days’ For a third sus ’’ pend or revoke a license. 14§25004. (b), provides pertinent part, § 15See subd. which that “the by causing permitting or the of a violation a licensee violation or the prohibiting penal of of this State or of. .. other law ’ ’ beverages regulating ground of is a which consti sale ... alcoholic suspension tutes basis for or revocation of licenses. grounds suspension 16The and revocation are set out in detail department include the of of 24200. These rules provisions. (See (b).) penal well as violation of subd. Const., §22, part XX, provides: art. in relevant 17California “The discretion, department power, deny, suspend in its shall have or criminal in nature, they governed nor appli- the law (Cornell cable criminal eases. Reilly, Cal.App.2d 178, 184 572].) As stated in Cornell, object “The of an proceeding administrative revoking aimed at a license protect public, is to is, to determine whether a licen- privilege see has interest, derogation exercised his public keep regulated business clean and whole- proceedings some. Such purpose are not conducted for primary punishing an (P. 184.) individual.” My colleagues, reaching selling the conclusion that the beverages at less than the minimum retail sales price pursuant to fair trade a crime, contracts is have been persuaded by peculiar language provides “Every person convicted a violation this division for which another punishment specifically provided is not for in this division guilty a misdemeanor punished and shall a fine of not more than five ($500) hundred dollars imprison county jail ment in the for not more than months, six *14 both imprisonment.” such fine and (Italics added.) The lan guage of the section is say somewhat tautological, to the says It least. person essence that a violating convicted of the no Beverage the Alcoholic Act, Control where penalty punishment other or specifically is provided, is guilty plain of a It misdemeanor. is that penalty before the punishment provided or therein for can occur there must be a conviction. presupposes A “conviction” the existence of a offense. criminal A “conviction” is the “act of proving, finding, adjudging person or guilty a of an offense or crime. (Webster’s ...” Third New Diet.) Internal is Conviction the verdict in a criminal case; guilt. the ascertainment of (People Hurley, Cal.App.2d v. 350, 352 ; P.2d [317 1003] People Acosta, Cal.App. 103, 43].) It is beyond peradventure that cannot be one convicted of a crime unless the offense has first been declared to be crime. In the a ease at bench the has not declared it to be a crime to violate the of section 24755. my opinion, terminology guilty the “is of a misdemean- or” cannot make a crime of what has not been declared to be a crime. Section it, objectives. as I read has two Its purpose provide punishment to main is for for a misdemean- any specific beverage revoke license if it shall determine good granting cause that or the continuance of such license would be contrary public to welfare or morals. ...” specifically penalty punishment has been or where no other or to be specifically declared 37 offenses provided for. Of the punishment pen- only provide for the misdemeanors, three provides penalty Accordingly, alty.18 section provided for in misdemeanors punishment for other 34 objective to make cer- of section 25617 is act. The other con- been person shall have all crimes for which tain that punishment penalty or the act which another victed under guilty of specifically provided shall deemed be not be is misdemeanor, act been i.e., which have not all crimes none of It should be here noted that to be declared felonies. therein particular providing that offenses statutes punish- felony provide penalty for a described constitute a punishment provided for in section penalty or ment. Such 25618. opinion every viola majority is to
The effect of the make Act at least misde the Alcoholic tion Legislature. The meanor. was not the intent of This majority only apprehension of the to hold that those specifically be a declare the mis statutes which contemplation of would are within the section 25617 demeanor punishment may, my opinion, other violations without leave allayed be appears what a clear intent be only for the commission of a substantial sanction intended by way provided number of the act of violations looking suspension proceedings disciplinary or revocation expresses majority concern that the conclu of licenses. urged in this dissent would leave without sion merely act wherein it is stated that three instances “ do a act.19 This assertion is is unlawful” to certain [i]t my opinion, by met, in what has been herein said likewise imposed by disciplinary proceed respect sanction Moreover, expressly ings. while an one for unlawful necessarily punishable law, it need as a bidden “ synonymous with “. . is not criminal. . crime. Every ‘Unlawful *15 unlawful, illegal illegal but or un is criminal ’ ” (People Ranney, may criminal.” v. not be lawful acts People Wilson, ; v. 70, see 78 Cal. P.2d 213 Cal. 77 [1 423] Bath v. ; Turkish 108, P.2d Sultan App.2d 114 [177 567] 188, P.2d Cal.App.2d 169 200 Comrs., Police [337 Board of year) ; ($100-$1,000 ($500 1 not more than 25616 25606 and or 18§§ months). months) ; ($100 3or 1 6 and 25656 and or 23404, 25235 and 25237. 19§§ 790 1667.20)
203]; Code, and see Civ. comply requirement In order to with constitutional process prohibited of law, due the crime itself which is punishable clearly defined; as such must be be cannot left inference, implication, to setting a surmise; innuendo or statute spe forth certain acts a criminal be offense should as open (MacLeod City Altos, cific and not to doubt. v. Los Cal.App.2d Cal.Rptr. 364, 326]; 182 368 Gaso [6 California Regal 844, Retailers v. 50 Corp., line Petroleum 862 Cal.2d Sharpensteen Hughes, Cal.App.2d ; P.2d 162 v. [330 778] 381, 54].) 387 Accordingly, P.2d it is a well-established [328 statutory impose rule of penalties construction that the courts will not noneompliance statutory provisions provided expressly by necessary those addition to that are implication. (City Lincoln-Mercury Lindsey, v. 52 Co. Cal.2d 267, 851, P.2d 1420].) 276 73 A.L.R.2d It is also axio [339 language when penal matic that is used law is reasonably susceptible of constructions, two that construction adopted. which is more favorable to the offender will be People (People Ralph, 575, 401]; v. 24 581 P.2d Cal.2d [150 Valentine, People 28 121, 1]; 143 v. Cal.2d P.2d v. [169 Smith, People Stuart, 44 79 ; P.2d v. 47 Cal.2d [279 33] 705]; 175 P.2d 55 A.L.R.2d Cal.2d Chessman v. 225]; [302 Superior Court, 50 P.2d In re Cal.2d [330 Tartar, 553].) It Cal.2d is not the judicial function, therefore, to make a crime of an offense specifically which the has not declared be a People supra: Ralph, words, crime. As stated criminal statutes “In other up judicial ‘by not built grafting will legislation....’” (P. 581.) pointed upon As have I out specifically above, section 24755 does not define or set forth mentioned criminal the acts therein offense. As sec language ambiguous doubtful, tion its and reason ably susceptible of two constructions so as to allow for a against making penal construction its statute out of section tracing legislative history 24755. In of section majority acknowledges opinion susceptible that it is of two interpretations, but reasons that each reasonable, because proper. reached the construction it is It is submitted that policy applicable this conclusion is not consonant with provides: Contrary "That is: 20§ not lawful which 1. to an provision express law; Contrary policy express law, 2. though expressly prohibited; or, contrary good 3. Otherwise morals.” *16 construction, light of the authori in the penal statutes the to. ties above alluded history of section to the not indifferent While by the reached the conclusion in with 25617, I am not accord to a to revert Legislature intended majority opinion the that original expressed in enactment the meaning to that similar clearly made viola- expressly and in 1933. That statute present form its In of the act a misdemeanor. tion doubt whether explicit clear, but leaves in is not so every a misdemeanor. it to make intends legisla- ambiguous language it leaves By peculiar and its subject constructions, and hence tive intent to two reasonable tempered the rule hereinabove mentioned. must be Legislature has persuaded, moreover, that while the I am authority prices way of delegated to wholesalers set subject prices to be contracts, and these are fair trade while suspension revocation, license enforced the sanction Legislature it make a crime it never the intent was Properties v. trade to Department such fair contracts. Allied violate Beverage Control, Alcoholic 53 Cal.2d Supreme Court, upholding in the consti- 757], the tutionality of fair under the Alcoholic Bever- trade contracts power pro- age has Act, held Control respect to a vide for administrative sanctions with licensee fair trade of the act. who violates the The Su- preme Court, however, as to criminal entertained reservations court: need not determine sanctions. Said the “We whether penalties proper since the criminal sanctions such were provision imposed ease, authorizing not this and the them 150.) major- I (P. am not unmindful that severable.” upon ity rely recog- dictum Allied which indicative Supreme that section 25617 nition Court makes it a fair crime to violate trade under Alcoholic Supreme acknowledges Act. The Court upon to make the now con- it was not called fronting determination case, proseetuion inus because no was criminal attempting court The was to construe involved there. merely paraphrasing but was the actual word- placing ing scrutiny it of the section without under the close statutory required event, the instance construction. In language apparent quoted from it is above that Supreme did state that while Court the Alcoholic Bever- “provides age and criminal Control Act administrative (p. respect 150) contracts, sanctions” to fair trade making was not propriety decision as to the of criminal leaving sanctions, but question was for future determ- ination. peremptory
Accordingly, writ should be denied. petition hearing of the real interest for a *17 Supreme was denied Peters, J., Court December 1963. opinion petition granted. was of should be Dist., No. 21060. First Three. Div. Nov. [Civ. 1963.] WALKER, Estate of ZELLA ADAIR Deceased. HILARY CRAWFORD, Executor, etc., al., H. et Petitioners Appellants, Objector KINGSBURY, v. FLORIEN Respondent.