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


Civ. 13085.

Decided: January 06, 1942

Earl Warren, Atty. Gen., L. G. Campbell, Deputy Atty. Gen., and Clarence A. Linn, of San Francisco, for appellants. Joseph K. Coady and Henry K. Elder, both of Los Angeles, for respondent.

On March 14, 1939, respondent herein, pursuant to the provisions of the Welfare and Institutions Code (Stats.1937, ch. 369, p. 1005, and amendments thereto), made application to the Board of Supervisors of Los Angeles County for monthly old–age–security payments. On October 3, 1939, her application was denied. From such decision of the board of supervisors respondent appealed to the state Social Welfare Board, appellants herein (hereinafter referred to as the state board). The last–named tribunal heard such appeal and entered its order denying the same.

Thereafter respondent filed with the Superior Court of Los Angeles County her petition for a writ of mandate to compel said board to pay her, through the Board of Supervisors of Los Angeles County, monthly old–age–security payments in the sum of $40 per month from March 14, 1939, the date upon which her application for such payments was filed with the board of supervisors. The state board demurred to the first amended petition and the amendment filed thereto, and when its demurrer to the last–named pleading was overruled, answered the petition. The superior court rendered judgment January 30, 1941, granting petitioner a peremptory writ of mandate ordering said state board to pay the petitioner therein, through the Board of Supervisors of Los Angeles County, monthly old–age–security payments in the amount of $40 per month from October 3, 1939 (the date her application was denied), and awarding petitioner her costs. From this judgment the state board has appealed, on the grounds that the court erred (1) in overruling the objections of the state board to the introduction of any evidence for the reasons that (a) the petition did not state facts sufficient to constitute a cause of action, and (b) the court had no power to review the action of the state board; (2) in finding that the action of the state board was arbitrary, capricious and unreasonable. When the case was called for trial it was stipulated that the same might be heard on a transcript of the proceedings had before the state board on the appeal, subject to the objection of the board that the court was without jurisdiction to hear the matter.

In California, as in most of the states of the Union, relief is granted needy aged persons in conformity with a state–federal plan for extending such assistance. In the operation of this duo–governmental setup, the Federal Social Security Act, 42 U.S.C.A. § 301 et seq., directs the allotment of federal funds to those states which put into effect plans for old–age relief which conform to certain minimum requirements of the federal act. Such federal requirements, so far as here pertinent, are that the state must either provide for the establishment or designation of a single state agency to administer the plan, or provide for the establishment or designation of a single state agency to supervise the administration of the plan. Further, it is required of the state that the latter's plan for old–age assistance provide for granting to any individual whose claim for old–age assistance is denied an opportunity for a hearing before such state agency. The State of California, in the several sections of the Welfare and Institutions Code (secs. 124, 2024, 2025, 2140 and 2160), enacted legislation for the purpose of implementing the Federal Social Security Act and thereby securing from the federal government the aid offered to states which should adopt legislation in conformity with the congressional act. Sections 2022, 2180 and 2181 of the Welfare and Institutions Code provide for the filing of applications for old–age assistance with the county boards of supervisors, and invest such boards of supervisors with authority to act upon such applications and make awards thereunder. Section 2140 of the same Code vests in the state Department of Social Welfare the power to prescribe the form of application and to make rules and regulations necessary for the administration of aid to the needy aged, and further provides that such rules and regulations shall be binding upon the boards of supervisors of the respective counties of this state. Section 2182 provides for an appeal to and a fair hearing before the state Social Welfare Board in the case of an applicant who is dissatisfied with the action of the board of supervisors. By thus conforming to the provisions of the Federal Social Security Act, the State of California has obtained allotment of federal funds.

The first amended petition filed in the mandate action now before us alleged facts which, if true, concededly entitled Mrs. Bila to state aid. Such allegations fully met the requirements of sections 2160, 2163 and 2164 of the Welfare and Institutions Code, which sections in effect provide that aid shall be granted to any person who has not made any voluntary assignment or transfer of property for the purpose of qualifying for such aid, and provided that such applicant for aid does not own personal property the value of which exceeds $500. Section 2164 further provides that no aid shall be granted or paid to any person who owns real property the assessed valuation of which as assessed by the county assessor exceeds $3,000 at the time such person makes application for aid. The amount of aid to be granted to any needy aged person is governed by sections 2020 and 2025 of the Welfare and Institutions Code.

The first contention advanced by appellant state board is that the writ of mandate may not be resorted to in cases such as this for the asserted reason that nowhere in the Federal Social Security Act or in the Welfare and Institutions Code of this state is there any provision for judicial review of the action taken by the Social Welfare Board on the appeal of a dissatisfied applicant for aid; that the action of the county board of supervisors and of the state Social Welfare Board is executive in nature, and that neither the county nor the state administrative boards perform any judicial functions. It is further argued that any attempt by the courts through prerogative writs to interfere with these administrative agencies in the exercise of their functions of administering aid for needy aged people would amount to an assumption by the courts of executive powers and therefore would be violative of the constitutional provisions dividing the powers of government between the executive, legislative and judicial branches thereof and inhibiting the encroachment by one branch upon the powers and prerogatives of the other. With this claim of appellant we do not agree. The provisions of section 1085 of the Code of Civil Procedure in part authorize the issuance of the writ of mandate “to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station * * *.” (Italics added.) Where, as here, no proper statutory method of review of the state board's decision is provided in the act, mandate is the only possible remedy of those aggrieved by rulings of such administrative board. When we contemplate the history of the writ of mandate, the conclusion seems inescapable that such writ was conceived and invented to supply a remedy where no other remedy existed. In 9 Halsbury's Laws of England, 744, section 1269, we find the following in reference to the writ of mandate: “Its purpose is to supply defects of justice; and accordingly it will issue, to the end that justice will be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing such right.”

The case of Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 87 P.2d 848, is authority for the statement that the Constitution of this state (art. VI, sec. 1) prohibits the conferring of judicial powers on administrative boards such as the one with which we are here concerned. It should be noted that section 2001 of the Welfare and Institutions Code provides that any aged person qualifying under the provisions of the statute shall be entitled to old–age relief. By this language the law unequivocally enjoins upon the state board the duty to extend aid where the applicant meets the requirements of the statute. In such cases the board has no alternative. Under the American form of government there is no warrant for the claim that the judicial power of a competent court can be circumscribed by any legislative arrangement designed to give finality to the rulings and decisions of administrative boards, however unreasonable, arbitrary or capricious such actions may be. Without doubt, the findings of an administrative board where formal hearings are had are entitled to and do come before the courts with a strong presumption in their favor, primarily attributable to the rebuttable presumption provided for in subdivision 15 of section 1963 of the Code of Civil Procedure that “official duty has been regularly performed.” The statute under which the state board functions (sec. 2182, Welfare and Institutions Code, supra) makes it mandatory upon the board in the case of an appeal from the action of a county board of supervisors to grant the applicant a “fair hearing” before the state board. To determine the fairness of the hearing as well as the reasonableness and presence or absence of arbitrary or capricious action on the part of the board, a competent court may issue an alternative writ of mandate, and upon hearing thereon must of necessity weigh the evidence introduced before the board, giving due weight to the presumption in favor of the board's findings, but nevertheless exercising its independent judgment thereon in determining whether the board acted beyond or in excess of its powers or arbitrarily or capriciously refused to perform an act enjoined upon it by law.

Appellant state board urges that the rules just announced are inapplicable here for the reason that the statutes authorizing grants of public assistance to needy aged persons do not confer property rights, but award public funds to such persons as gratuities. Appellant board concedes the existence of a strong moral obligation upon the part of the state to care for its indigent aged, but argues that the right of the aged to receive such aid is not a vested one, and the state may distribute or refuse distribution of such aid at will, unrestrained by judicial intervention. We take the position, however, that the moral obligation resting upon the state to care for its indigent aged was raised to the dignity of a legal obligation by the adoption of the legislation here under consideration; that in considering such legislation we are faced with a primary question of human relations which reaches to the very depth of organized society and to the very depth of human conscience. This legislation recognizes that what we call American life is builded on and can only survive by an observance of those primary inexorable laws of human relationship, and that our civilization, our culture, cannot succeed with the defense of Cain, “Am I my brother's keeper?” When by the adoption of appropriate statutes the state recognizes the duty to aid its indigent aged as a legal obligation, then such laws are subject to the provisions of section 11, article I of the Constitution, which requires that all laws of a general nature shall have a uniform operation. While recognizing the measure of discretion committed to it, the state board or other administrative agency, like all other governmental departments, must keep within the law, and resort may be had to the courts to ascertain whether or not it has done so; bearing in mind, of course, that in the realm of fact–finding that is committed to it by the legislature, the actions of such board are unassailable provided such findings are supported by some substantial evidence and hence do not descend to an abuse of the fact–finding function. Furthermore, as heretofore pointed out, mandate may be issued to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. Code Civ.Proc., sec. 1085.

Whatever discretion is vested in the state board, that body may not exercise it arbitrarily, unreasonably or capriciously. McDonough v. Goodcell, 13 Cal.2d 741, 746, 91 P.2d 1035, 123 A.L.R. 1205. Petitioner's complaint as amended therefore stated a cause of action that the trial court had jurisdiction to enforce by mandate, to the extent, at least, of deciding whether or not the state board granted petitioner a fair hearing, acted unreasonably, arbitrarily or capriciously, or acted without a factual basis upon which to predicate its decision. The trial court therefore did not err in overruling defendants' objection to the introduction of any evidence under such pleading.

The cause was tried in the court below, by stipulation, on the record of the hearing before the state board. Such hearing was informal, as administrative board hearings usually are, and consisted of statements by counsel and investigators and discussions among the members of the state board and with counsel. The only evidence given under oath was that of the applicant, Mrs. Bila.

In view of the decisions of our Supreme Court in the cases of Drummey v. State Board, supra, and McDonough v. Goodcell, supra, we feel justified in saying that the findings of fact made by the state board and its decision based thereon must be held conclusive if supported by evidence sufficient to support a jury verdict on appeal. The factual situation as presented to the state board and later to the trial court may, we think, be thus fairly summarized: Respondent, Mrs. Bila, in 1937 owned a farm in Colorado which in that year was sold on the open market for $2,400. In 1929 her husband was an invalid and they began borrowing money from respondent's brother, Frank Kelley. Mrs. Bila testified that she repaid her brother $1,500 of the money received from the Colorado property in payment for money he had advanced her and her husband up to the death of the latter in 1933, and that she used the balance of the money received from the Colorado property to pay expenses and to make her home in Los Angeles livable. She testified that she gave her brother $500 in the early part of 1937, “and when the other amount came in July 1938, he took that amount.” It also appears that a Mr. Wheeler, who had been a friend of the family, had helped respondent take care of her husband, and had lent her money in small amounts at different times, as well as paid the back taxes on the Colorado property. On September 28, 1939, after she was denied relief by the board of supervisors, Mrs. Bila transferred to her brother, Frank Kelley, her home at Los Angeles in which she lived, the assessed value of the same being $550 and the consideration for its transfer approximately $610, of which it appears $235.69 was used to pay an outstanding loan from the Home Owners Loan Corporation, payment of which was due and had been demanded by such corporation, and $330 was paid to Mr. Wheeler for money lent by him in 1933 and services rendered by him in the preceding year.

At one time during the first hearing before the state board, a motion was made and seconded that the appeal be denied. Such motion was put after considerable discussion, but received no “aye” votes. During the discussions before the board and prior to the taking of a vote, the suggestion was made by Mr. Schreiber, Deputy Director of Los Angeles County Charities, to the effect that “if the property disposed of for $2,400 could be satisfactorily settled” and if “this brother Frank would give a life estate in that property” (referring to the Los Angeles home of respondent) “the records would then be cleared.” Thereafter a motion was put before the board “that the appeal be granted * * * to the amount to which she may prove eligible,” which motion was seconded. From the record it seems clear that before putting this motion to grant applicant relief, the board wished more evidence with reference to the circumstances surrounding the sale of the Colorado property and also desired to ascertain whether respondent's brother would give a life estate to her in the Los Angeles home property, because after some discussion the hearing was continued “for information.” When the hearing was next resumed a letter from respondent's brother was read, which in effect stated that he could not give his sister a deed to the Los Angeles home as he had to borrow a part of the money he paid her for it and would have to sell the home to liquidate that loan. The following then appears in the transcript:

“Acting Chairman: In other words, they didn't comply with the request of the Board at the last meeting in order to qualify.

“Mr. L. C. Schreiber, Deputy Director, Los Angeles County Charities: My recollection was that at the last meeting of the Board thirty days time would be allowed the appellant to obtain a life estate or else the appeal would have to be denied.

“Mrs. Barkwill (member of state board): I would like to make a motion that the appeal of Rosanna Bila be denied.

“Mrs. Emmons (member of state board) I second.”

This motion was carried.

While it is true, as contended by the Attorney General, that the record indicates a feeling upon the part of the members of the state board that some collusion existed between the applicant for aid and her brother and Mr. Wheeler, we are unable to find in the record any factual basis for such conclusion. The transfer of the Colorado property made in 1937 was presumed under the state board's rule (sec. 135–00) to have been made in good faith, and such transaction having taken place some two years prior to her application for aid, surely it cannot be said to have been made “for the purpose of qualifying for such aid.” Welf. & Inst. Code, sec. 2160, subd. (g). So far as the transfer of the Los Angeles home property is concerned, the record decisively establishes the existence of a Home Owners Loan Corporation mortgage which was due. In this regard respondent Mrs. Bila testified under oath, and it is uncontradicted, that she went to the Home Owners Loan Corporation, told them she “was unable to make any more payment, they told me briefly they would have to have their money. Mr. Wheeler made the payments.” Furthermore, the sale of the home place having been made after Mrs. Bila's application for aid was filed, we fail to see how such transfer could have affected her eligibility at all. Not one iota of evidence was introduced to disparage the showing that all of the applicant's debts to her brother and Mr. Wheeler were legitimate and bona fide. It seems to us that the hearing was continued by the state board after it had determined to grant aid contingent upon respondent's obtaining either a transfer of the home property back from her brother to her, or dependent upon the former's granting his sister a life estate in such home. This action impresses us as being arbitrary, and constituted an abuse of the discretion vested in the state board, requiring of respondent as it did the performance of an act not within her power to accomplish.

We must, however, hold that the trial court exceeded its jurisdiction in attempting by its writ of mandate to determine the amount of aid to be extended respondent and in fixing the commencement date of such aid payments. It is within the exclusive jurisdiction of the administrative board, in accordance with the legislative act, to award aid, determine the amount thereof to be paid within the established statutory limits, and also to determine the date when such payments shall commence.

The judgment is reversed with directions to the court below to quash the writ of mandate issued and to issue another writ directing the state board to award aid to respondent and fix the amount of such aid and the effective date from which such aid payments shall commence as prescribed by law.

I concur in that portion of the judgment which reverses the judgment of the court below, but I dissent from the balance thereof.

The board having acted upon and determined a matter within its jurisdiction, it is my opinion that the law is well settled that, however erroneous, such action cannot be reviewed in proceedings for mandamus. The exercise of discretion and judgment is not subject to control by mandamus.

In my opinion, section 1085 of the Code of Civil Procedure does not vest in the courts authority to invade the province of those officials charged with the responsibility of administering the Welfare Code. The phrase in section 1085, “to compel the performance of an act which the law specially enjoins,” in my opinion does not furnish the authority contended for it in the prevailing opinion. The law does not “enjoin,” either generally or “specially,” the Social Welfare Board to pay petitioner, or any other applicant, a pension in any event. It is only such an act for which there is no alternative that the law specially enjoins and which therefore may be compelled by mandamus.

WHITE, Justice.

YORK, P. J., concurred.