*1 A. No. 21238. Bank. Oct. 1950.] [L. (a CLUB,
SOUTHERN CALIFORNIA INC. JOCKEY Cor poration), Appellant, v. CALIFORNIA HORSE RAC al., Respondents. BOARD ING et *2 Athearn, Chandler & Angell, Hoffman Farmer, F. G. Athearn and Leigh Appellant. Athearn for
Fred N. Howser, Attorney General, Lynch, Kenneth E. Attorney General, Goldin, Deputy Assistant and Howard S. Attorney General, Respondents.
Gerald H. Hagar, Strauss, J. Joseph Paulucci, D. W. Amici Curiae on Respondents. behalf of Proceeding under CARTER, section 19480.5 of the J. Code, plaintiff applied and Professions Business to the Cali *3 Racing fornia Board for a pur Horse determination that the poses (Bus. racing law Code, horse Prof. §§ seq.) et public by and interest would be served the construc by meetings tion track for Puente, horse race at Los Angeles County, application denied, California. The was plaintiff thereupon and presented petition for a writ of man date superior compel to the court to the board to issue license to it for purpose, agreed such and that court with the licensing board. Plaintiff now provisions asserts that the racing they horse law are invalid that constitute an delegation unlawful legislative power to the board adequate (Cal. Const., IV, 1); standards arts. III and that § improper evidence board; was admitted before the that evidence was insufficient to sustain its determination or that superior court; irregularly. and the board acted that plaintiff
Section 19480.5 under application which made its provides: “The board shall not issue a to conduct racing meeting any a horse place, inclosure, track, at or racing meetings used prior July 1, 1941, for horse to unless prior beginning to preparation the construction or place, inclosure, racing such track meetings, or for horse upon board, application may in such form require, as it has conducting determined that racing meetings horse such at place public will in the pur- interest and will subserve the chapter.” section was
poses [Emphasis This this added.] 1248, (Stats. 1941, ch. racing law in 1941 horse added to the lays questioned that down p. 3129). It section 3, is not § govern board, adequate the action of the but standards to pre- challenges in the plaintiff provision the broad contained ‘‘ may The issue ceding provision which reads: section, writing, application any person to who makes therefor who and complied provisions chapter who with the of this has payment required fee deposit of the license makes the to secure racing meeting in a horse a license to conduct this article chapter place, this at the inclosure track accordance with 19480.) (Bus. Code, specified application.” & Prof. § category than racing in a different other horse board is agencies dele respect or executive with administrative racing was legislative A act gation it. 1127, (Stats. 1933, pp. passed Legislature provided be effective it should 2046), wherein it ratifying adoption a constitutional amendment “upon the §19.) June, a constitutional (Id., provisions.” its Legislature “The adopted provides: amendment was which regulation race and horse provide for the of horse races wagering provisions on and the results thereof. regulation and provide ‘An for the of an act entitled act to wager racing, licensing meetings, horse race and of horse Rac thereof; results to create the California Horse ing on the regulation, supervision ing licensing and Board for thereon; penalties wagering provide said horse provisions provide act, of this the violation of adoption effect of a constitu this act shall take ’ ratifying hereby provisions, are con amendment tional ratified, fully completely tobe firmed, declared effec any amended ; provided, that said act time be tive [Emphasis (Cal. Legislature.” repealed added.] 25a.) In Rac Const., IV, Sandstrom Horse art. 90], 3 A.L.R.2d ing Board, 31 Cal.2d *4 suspend or power of the board to revoke considered racing under the horse trainer licensed the license suspended petitioner’s license had been for In case law. that one adopted by board, and of a of a rule violation is petitioner that “insofar rule as that contentions of pre statutory grant of to the board to based on the rules, regulations under which horse and conditions scribe delegation it an unconstitutional racing is conducted ... is ’’ legislative authority. contention, of answer court, reciting adoption after 1933 act and constitu- amendment, tional of this constitutional stated: “The effect ‘ expressly confirmed, amendment as here material is that ratified, fully completely and declared to be effective’ legislative Racing grant power to the Horse Legislature to may permit Board. That Constitution delegate powers may not be doubted. Constitution n powers even Legislature authorize the to confer additional cognate upon which germane purposes are to its .consti- provide tutional board or commission, and further powers such by any are provisions unlimited of the Con- other (See stitution. Const., XII, 22; Telephone art. etc. § Pacific Co. v. Eshleman, 166 1119, Cal. 640 1915C P. AnmCas. 822, 50 grant L.R.A.N.S. The continuance of the power into section 19561, Code, did Business and Professions not affect its previously (See status as and confirmed. ratified Bus. & Code, authority Prof. 2.) delegation here § considered has support.” [Emphasis constitutional added.] That case is controlling subject delegation here on the legislative power, for there is no rational difference between the delegation there of making presented rule and that power, here, that is, insufficient standards were fixed Legislature as the grant basis which the board could or deny a license. argues, however,
Plaintiff give that the 1933 statute did not powers such broad given by present the board as are provisions of the Business and Professions Code. With that agree. we cannot act, present one, The 1933 prohibits like the wagering conduct of horse per- race where (Stats. mitted" obtaining 1933, 1127, p. license. 1; Code, 19560.) separate Bus. Prof. provision There is § § owners, licensing riders, trainers, (as for distinguished etc. operators track meetings) conductors and such subject licenses “shall person to revocation and no shall eligible to, permitted participate in such "unless licensed, so during the time such license remains qualified unrevoked. No person license, shall be refused such nor shall just (Stats. such license be revoked without cause.” p. 1127, paragraph.) Thus, second provisions those are applicable not here as we dealing are with licenses race meetings places meetings. provided It next with regard involved, the character here that:
" any upon payment of the Upon applicant the award to board issue prescribed, license fees as hereinafter shall during the permit licensee, a license which dates shall shall applicant awarded to such and for which license fees meeting, or paid, have been at its track a race to conduct pro as herein meetings, wagering thereof, on the results vided. provisions granted be under the provided to licenses
“All
pursuant
this
including
granted
provisions
to
act,
those
rules, regulations
subject to all
hereof, shall be
section
time
the board
prescribed
from time
and conditions
as
be deemed
said
conditions
shall
contain such
and shall
this act.
necessary
purposes
for the
or desirable
board
suspension
revocation
subject to
or
shall be
“Such
reason
any
the board shall have
in
case where
by the board
com-
of its license has
been
any condition
to believe that
regulation
board
any
any
of such
law or
rule
plied with
[Emphasis
. . .”
been broken or violated.
shall have
added.]
paragraph above
1127, 9.) Plainly, the first
(Stats,
p.
the license
issuance of
quoted refers
the mere mechanical
is, after there
made,
has been
certificate
the award
after
to a
applicant
is entitled
has been a determination that
mandatory
nothing
Naturally
terms are
license.
such
except
act
the ministerial
following
do
such a
left to
pro-
“as herein
issuing
Moreover, the words
the license.
in
act. Hence
provided
an “award”
vided” refer to
as
here involved
(9)
apply
the situation
that section
does not
or an award
making
a determination
which concerns the
This is
have a license.
applicant
that an
should or should not
section 11 of the
further demonstrated when we turn to
19480 of the
provisions similar
act which
to section
contains
Sec-
Code, supra,
pertinent.
and here
Business Professions
writing,
filing
in
“Upon
application,
tion
reads:
of an
in
should be
license,
provided,
for a
as herein
if the same
act,
payment
with
of the license
accordance
provided for,
fee
be within the
hereinafter
shall
applicant
the board to issue a license
to conduct a
to the
meeting
provisions
in
with
of the act at
race
accordance
place,
specified
application;
enclosure or track
de-
classes,
counties
and second
hereinabove
first
fined,
meet-
granted
no license shall
a horse race
to conduct
ing upon a track less
mile
circumference
than one
and/or
length, except
grant li-
discretion
the board
county
censes to
conduct horse
fairs and
race
to rodeos
meetings upon tracks less than one mile
circumference
length, in
counties
the third class licenses
and/or
granted in the discretion of the
to conduct race
length.”
mile in circumference
on tracks of less than a
and/or
*6
[Emphasis
(Stats. 1933, p. 1127, 11.)
There
added.]
§
just
as much a lack of standard for
issuance
foregoing provision
of the 1933 act as there is in section
Code,
19480 of the Business and
Professions
the words
power
“shall be within the
of the board”
contained
mandatory
1933 act are no more or
permissive
less
than
“may”
the word
in section 19480 of the Business and Pro
expressions
fessions
The two
substantially
Code.
mean
thing.
same
For
it
illustration,
“may”
is said that
means
(National
power”
“to have
Garrison,
Automobile
Co. v.
etc.
Cal.App.2d
76
;
415
P.2d
Robison v.
Payne,
Cal.
[173
67]
App.2d 103
710]),
“may” may
P.2d
be either man
[66
datory
permissive
depending upon
(See
the circumstances.
Payne,
Robison v.
supra;
Trust
Bennett,
Co. v.
California
Plaintiff asserts trial court did not evidence; that, therefore, weigh court must Examiners, v. Board Medical 32 Cal.2d and Moran controlling. answers 20], is There are two P.2d not findings First, clearly appears from the it
that contention. although memoran weigh evidence, did that the court contrary. judge might point to the opinion of the trial dum between this findings There is no distinction control. Examiners, 32 Cal.2d Medical case and Moran v. Board of appellate court 20], held that the where it was 301 [196 findings reviewing reweigh would not the evidence administrative a statewide a trial court on a determination findings given all the bene agency; would be and that such if it Second, even proceedings. other fits accorded them in reweigh trial did be assumed that the this, where was have done so in a case such as it should not a busi application for a license for reviewing the denial of an subject police power proper regulation ness is a whose a license. suspension of distinguished from the revocation or Goodcell, 13 McDonough Cal. This rule announced 1205], where this court 2d 123 A.L.R. 741 [91 public vest in a legislature said: “The has *7 permit to deny application discretion to an for officer the prerequisite subject regulation when engage in business to exercised must be do not exist. But such a discretion facts generally that legal Those bounds are within bounds. be not administrative officer or board discretion capriciously, fraudulently, arbitrarily, or exercised survey A justify the refusal. ... a factual basis sufficient to it is the settled foregoing authorities discloses that legislature of law in state where the general rule this an administrative officer with has clothed statute appli an with reference to the fitness of to ascertain the facts subject regulation to permit engage for a to in a business cant dis police power and vested in such officer the under the has grant deny a cretion, ascertained, or based on the facts will interfere engage in the courts not permit to such business of an except of such discretion in the case with the exercise general of this abuse thereof. There modifications present, will special rule under circumstances here d . be note hereinafter " his abused question here is whether the commissioner denying permit petitioners. Such discretion arbitrarily, capri appear of discretion would if he acted abuse made ciously, fraudulently. properly No claim can capriciously fraudulently. And he acted that he acted
175 no factual arbitrarily only event there was sufficient his conclusions. basis for was voluminous testimony commissioner before the
“The conflicting highly . . . testimony commissioner “Unquestionably before the way upon the issue of would sustain a conclusion either engage petitioners to good moral fitness of the character and If trial had in the bail bond in San Francisco. business support been before a evidence was sufficient court the way support a verdict findings either sufficient or was way either issue. With this state of the record our on the inquiry phase end, on at an for it cannot be of the case is said that there was not a sufficient factual basis the con clusion of he the commissioner and therefore did not act arbitrarily discretionary power or otherwise abuse his denying permit.” consistently views have been Those (See approved. Commission, Dierssen v. Civil Service 43 Cal.App.2d ; Newport 60 Caminetti, P.2d 56 [110 513] Cal.App.2d 557 ; P.2d Wallace v. Board Educa [132 897] tion, Cal.App.2d 8]; P.2d Housman v. Board Medical Examiners, 84 Cal.App.2d P.2d McDonough v. Garrison, Cal.App.2d 983]; G lick v. Scudder, 69 Cal.App.2d And the rule was not changed by statute as is evident from the wording of section 10945 of Civil the Code of Procedure.
We hold, therefore this, a case such as the trial court should not reweigh is, and its sole function to determine from a review of record, whether there is sufficient evidence to ruling sustain the of the board. If the trial court should hold the insufficient, and this hold ing is attacked appeal, on the court appeal to which the taken must review the sufficiency record and determine the of the evidence. If the sufficient, evidence is found to be ruling of the board must be sustained. *8 "urges
Plaintiff that there support is not sufficient evidence to the finding of against it; “improper” that evidence was received the board; competent and that evidence of- fered by plaintiff rejected.
Dealing first with the last mentioned contention, plaintiff claims “improper” that evidence was admitted before transcript the board and a of it was submitted the court, to is, that evidence Hollywood Santa Anita and race tracks Angeles n Los County, they that would suffer an “economic 176 county; authorized in the if track was another
detriment” which new section 19480.5 under purpose not the it is existing compe limited, protect tracks from to could tracks It will be noted from monopoly them. preserve a tition however, that no new race wording 19480.5, section unless it is determined that such may be constructed tracks promote and will public will be in the interest tracks law. Defendants concede that purposes of the protect existing tracks the function of the board to not opinion trial competition. its memorandum court testimony “Nevertheless, eliminating from consideration said: existing tracks, concerning the of the there economic interest evidence which to sustain the Board’s is still substantial record, in Even if there some error determination. he general principle enunciated Arti court should follow the VI, Constitution, to-wit, section 4 sustain the cle [4 body complained trial the error has not resulted where miscarriage justice.”, Thus its conclusion was that support evidence without such evidence there was sufficient to Moreover, presumed appeal the board’s decision. it is on court, sitting jury, that the did not base its competent on irrelevant evidence where there is evidence (Brock Cal.App.2d support Fouchy, to it. 76 363 [172 ; Garcia, P.2d Cal.App.2d Cordi v. 584 945] [132 887].) support being competent There evidence judgment evidence, and the “improper” without such court important having findings latter, not on it is based its plaintiff’s thereof was denied proof offer rebuttal by the board.
Furthermore,
trial
proceeding
since the
only hearing
where
record before
must be considered
determining
purpose
examined for
the board is
sufficiency
limited
novo
rather than a
trial de
supra),
(see McDonough v.
then the
Goodcell
discussion
incom
applicable
is,
rule
admission of irrelevant or
ground
annul its
petent
the board is not
action
evidence
support
its deter
competent
if there
sufficient
evidence
(See
Casualty
Maryland
v. Industrial Acc.
mination.
Co.
Com.,
;
There is *9 representing trial court. witnesses the board and Two improvement transportation that an association testified the adversely traffic conditions would be facilities and affected by Puente, protection at that track and added fire would necessary. by Thoroughbred A resolution the California representing per Breeders’ Association cent of the breeders thoroughbred horses the state was received in evidence. proposed It declared that the track would reduce the standard racing breeding industry in and the state and curtail revenue to the state. There the was also received in evidence by Association, Pair comprising resolution the Western nonprofit opposing track, fairs in California, asserting the injurious nonprofit that it would be to such fairs and hence to agriculture. There is other evidence of a like character is, however, the record. There evidence that the saturation point Angeles County for race tracks Los has been not reached, but such evidence created nothing more than con credibility flict. of the witnesses weight and of], ^The the evidence cannot appeal. be considered on this It is clear from wording the applicant section 19480.5 that the has the proving, burden of least, public interest and purposes the detrimentally of the act would not be affected by proposed new track. There is considerable discussion parties toas whether applicant affirmatively must show public merely interest would benefited or that it suffer, would necessary not but pass it is not upon point. Thus it was board to determine plaintiff’s whether evidence was such that the burden had been met. is especially This true where most of the evidence consists opinions, involved—public the issues interest purposes general incapable act—are of exact Indeed, definition. plaintiff states in its brief: “A moment’s reflection very nature of the determination that the board required to make shows that such determination must be predicated, upon provable facts, concrete but upon opinion exclusively.” case, In such a wide discretion is necessarily vested the fact-finder. argues that the
Plaintiff board and trial court failed apply 19480.5, asserting standard established section “public that the words interest” used therein related racing purposes to be served law. Be that may, language was in " applicant statute. It reads: That has failed to show conducting proposed at the of horse that the public sub- track be in the interest would Puente would Racing Act and California Horse purposes serve the hereby application denied.” Likewise that therefore said basis, therefore, There is finding was sufficient. no the court’s *10 assumption for that either the board or the trial court the contrary, applied wrong the or test. On the the standard (Code 1963(15).) way. presumption Proc., other Civ. is the Finally, urged irregularly is that the board acted reaching decision in that one of the board members its telephoned meeting to the at which the his vote of present, two of whom other members were one dissented. Assuming present meeting that there must have been at at board, by which the matter was decided the members neces the sary by board, make all majority a decision of the appears, meeting that was such The at which two done. present September 17, were writ members was on 1948. The board, September 21, 1948, ten decision the dated recites: Matter Application “The of the Southern California of.the Jockey Club, Inc., hearing; came on for was intro evidence by applicant objectors; duced the the matter was the by applicant objectors by briefed said Board the submitted.
“It is now held as follows: " conducting the the applicant That has failed show that proposed the Puente would track public purposes be in the the interest and would subserve Racing the Horse therefore said Act application hereby signed by two members denied.” It board, of the with it. and the third member’s dissent was filed affirmed. judgment is J., Spence, Shenk, Schauer, concurred. J., and Gibson, J.,C. judgment. J., concurred the Dissenting. court found that J., The trial
TRAYNOR,
by
supported
“substantial evi
board was
the
determination of
majority opin
by
weight
the evidence.”
the
dence and
ground
on the
trial court
affirms the decision
ion herein
support the determina
evidence to
was substantial
that there
plain
trial
It holds that if
and of the
court.
tions of the board
by
board’s
finding
trial court that the
to a
tiff was entitled
by
weight evi
supported
was or was
decision
by
discharges
duty
review that decision
dence,
support
there was substantial
determining whether
plaintiff
it holds
ground
decision
an alternative
it. As
by
court whether
the trial
only entitled to a determination
was
decision of the
support evidence to
there was substantial
license was
revocation of a
rather than
board, since denial
my dissenting opinion
For the reasons set forth
involved.
Examiners,
301, 315,
32 Cal.2d
in Moran Board Medical
agree
if
issue before
I cannot
20],
they
supported 1
the board was
trial
whether the decision of
court was
discharged
duty
by
weight
evidence,
of review is
our
trial eourtJ
by discovering
support the
evidence to
substantial
trial court cor
Manifestly, if we must determine whether the
rectly
it, namely,
decided
before
whether the board’s
the issue
supported by
weight
we can
reviewing
not do so
record to see where the
entire
weight
affirming
judgment
on
evidence lies.
ground
position
majority opinion
alternate
abandons the
previously
find
majority
taken
this court that the
ings
agencies
of fact
must be
state-wide administrative
independently
reexamined
trial court to determine
*11
they
supported by
weight
whether
are
evidence.
the
of the
(Moran v. Board
Examiners,
Medical
32 Cal.2d
of
P.2d
Examiners,
Dare v. Board Medical
The establishing a distinction between these cases the rule of the action reviewed consists this, such as which cases action and cases in which the permit, license or denial of a suspension previ- of a or of the revocation reviewed consists Notwithstanding in either instance ously granted license. deprive peti- action is to the the administrative the result of carry business, pro- on a lawful opportunity to tioner of the approves the majority opinion occupation, the fession, or Goodcell, 13 Cal.2d 752-753 McDonough v. doctrine of a 1205], that there is sufficient 1035, 123 A.L.R. merit types of action to the two difference between practical judicial review. It divergent of theories application the specific upon a agency a license if the revokes is held that reviewing by must reversed fact, the action finding weight finding supported if the is not merely a finding denies if identical evidence, but on an may only if there is action be reversed permit, license or support it. substantial evidence to no my opinion, Dare the failure to overrule the and Moran justified by approval of a double standard for eases is not single problem. practical It that there apparent a is no McDonough the denial license, difference between thirty years Goodcell, supra, petitioner to a who has for sought, conducted the business for which license is a petitioner revocation of under which operated aptly have his It that “the business. has been stated majority an position has led unsound distinction between suspending professional refusing grant a license and eject person license where result in each instance is to engaged a business which he number of has for a years position . . The taken in majority opinion . can lead only to further complications unfortunate in this field of opinion law.” (Dissenting Gibson, J.,C. in Laisne v. State Optometry, Board 19 Cal.2d Racing application present decision to the Horse Act prophecy. persons demonstrates the wisdom of that “All participating in having to do with the of horses” Code, must (Bus. obtain licenses from the board. & Prof. 19510.) Such only year licenses are valid for the calendar § they for which are issued and secured new licenses must be annually. (Bus. Code, 19511.) Prof. Licenses § just Code, refused or revoked (Bus. for cause. & Prof. 19513.) during year Assume that the calendar after hearing just notice and finds for the cause there trainer, revocation the license owner, rider, petitions and orders his license revoked. of man- He for writ date grants and the trial court for the peremptory writ reason that the finding, although supported by board’s sub- stantial supported by weight is not the evi- Thereafter, petitioner dence. applies cal- close year endar license, his but upon the board the same evi- dence and previous the same upon which its action was predicated, per- refuses to issue the license. emptory writ now must be denied for the the find- reason that *12 ing supported is although substantial Thus, evidence. same upon made in each case evidence the same under the same statute and “the result in is to each instance eject person from a engaged business in which he has year,” number of majority opinion apparently finds no inconsistency' types between prescribes. of review that it present case the first McDonough since Goodcell v. approved in which this court has doctrine of case.
181 majority The decisions of of this court have stated the agency rule be that in the of case a state-wide the court independent judgment must exercise an on the facts and re weigh in qualification each ease without or limi only tation to those cases which suspension revocation or McDonough license is involved. v. Goodcell has occasion ally been adhered to Appeal the District Courts of on the theory that “whatever our view be as to correctness distinction, of this as an intermediate court we are bound holding Supreme this of McDonough Court.” v. Garri son, Cal.App.2d 318, 68 also, 337 P.2d [see, dissent [156 983] ing opinion Ward, J., ; Housman v. Board 348-352] Examiners, Cal.App.2d Medical 84 308, 315, 319 P.2d [190 653]; Scudder, Cal.App.2d v. 69 717, Glick 719 90].) P.2d [160 McDonough References to were, case in other decisions petitioner contends, unnecessary dicta to such decisions. (Dierssen Comm., v. Civil Cal.App.2d 53, Serv. 43 61 [110 ; P.2d Wallace Education, v. Board Cal.App.2d 513] 63 611, 8].) 615 cases, P.2d In other which the view [147 majority opinion required herein application McDonough Goodcell, v. the distinction has been abandoned logical favor adherence implications to the rule (Transportation the Dare and Moran Bldg. Corp. cases. v. Daugherty, Cal.App.2d 604, P.2d Kleiner Garrison, v. 442, 82 Cal.App.2d 446, McDonough
The doctrine of v. Goodcell cannot be reconciled upon with the rationale the Dare and Moran cases which purportedly it is based. Standard Oil Co. v. State Board announcing departure from prevailing the heretofore Equalization, 119], 6 Cal.2d this court of rule (see Alderson, 965]) Sudeow Cal. P. will lie to review that certiorari the decisions of state-wide “Concisely agency stated: stated, administrative our conclu- authority jurisdiction sion that we are to entertain proceeding sought, or to issue the here writ is based upon premises the established a writ of . . certiorari . judicial (sec. will to review lie the exercise of functions Proc.) legislature Civ. Code and that is without judicial ... to confer functions a state-wide agency” VI, under article section 1 of the California Consti- Subsequent expanded tution. cases have doctrine Company following syllogism: Standard Oil ease into the constitutionally Judicial functions delegated cannot *13 making agencies. function The of administrative state-wide finality be findings judicial, and such can final of fact is findings (Drummey court. the of accorded fact 84-85 Directors, 75, Funeral 13 Cal.2d v. State Board of findings 848].) Accordingly, the of fact of an adminis reviewed that must exercise agency trative must be a court (Drummey v. State independent judgment its on facts therefrom Directors, supra) Board Funeral and determine findings supported by weight those are whether 790, (Dare Examiners, Medical v. Board Cal.2d Examiners, Moran v. Board Medical P.2d 304] 20]), merely 301, substan and Cal.2d Presumably, any limited review would tial evidence. more agency in judicial confer functions the administrative prohibition of the violation constitutional thereof. decisions, reasoning foregoing basis Given this as the justify by Mc is the distinction established it difficult If opinion herein. Donough majority v. Goodcell and the finality findings of fact of an adminis cannot accorded the findings making agency trative the function of because such exclusively any judicial less be judicial, is function already findings petitioner attacking cause does not Code, provides have license 1 Insurance section may issue the insurance commissioner refuse to a bail eight provides upon any specified findings. Section 1807 suspend any cause revoke a bail license for he If he to make for which he could refuse to issue license. were finding the California Con of fact under section does according finality prohibit to that stitution permit under finding but the same to be made final finality If section 18051 there can be no administrative under Constitution, majority of this court holds, prohibition apply peti whether then the should If, it. tioner to secure a license or to retain on the seeks hand, findings fact consti other the administrative cases, tutionally they may made final license denial constitutionally final be made in license revocation cases. Manifestly, McDonough v. Goodcell is at odds doctrine of judicial by major with review principles announced ity majority If cases. this court the Dare Moran opinion principles, those herein is to be consistent with McDonough Otherwise, should overrule Goodcell. Moran, Dare, Drummey Laisne, Oil Co. cases Standard must be overruled. fallacy McDonough v. Goodcell is not announce finality failure of administrative but its the rule
ment of
application.
remedy
give
proper
its full
that rule
inconsistency
existing
repudi-.
is not the total
presently
for the
finality
recognition
ation
rule of administrative
but
"
duty
that the
is at an end when it becomes evident
our
action is
on substantial evidence
Commission’s
based
*14
[statutory] authority.”
(Securities
with the
consistent
Chenery
Exchange
Corp.,
194,
332
207
S.Ct.
Com.
U.S.
Corp.
1575, 1760,
; Republic
91 L.Ed.
v. Na
Aviation
Board,
793,
982,
tional Labor R.
800
S.Ct.
89
U.S.
Broadcasting
1372,
L.Ed.
National
Co. v.
It that this court is foreclosed is by legislative of its error virtue of the the reexamination rule Dare and cases in the adoption Laisne Code Procedure. of section 1094.5 of Civil enactment statute, legislative intention in which I no such can find merely findings it is provides that “Where claimed that evidence, by the court supported cases which are not independent judgment on by is law to exercise its authorized if the court of discretion is established abuse weight supported by findings not determines that are discretion is evidence; and in all other cases abuse of findings are not if established the court determines the whole supported by light substantial evidence how'ever, Legislature, did (Italics added.) record.” is authorized prescribe not in which the court cases evidence. independent judgment law on the to exercise court, not for the Indeed, it could under the decisions of speeifi- Dare reason the decisions from Standard Oil independent judg- authority án cally exercise that the held by the California ment expressly conferred on the court final Legislature', is the court, Constitution. This A de- meaning Constitution. arbiter not, in cases superior cision this court independent an this, such as “authorized law to exercise with, not judgment evidence,” on the would be consistent contrary to, section 1094.5.
Edmonds, J., concurred. F. 17922. No.
[S. Bank. Oct. 1950.] KEY (a SYSTEM TRANSIT LINES Corporation), Petitioner,
v. SUPERIOR OF COURT COUNTY, ALAMEDA Respondent.