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District Court of Appeal, Fourth District, California.


Civ. 2531

Decided: April 19, 1940

H.A. Savage and Lawrence W. Young, both of Fresno, for appellant. Earl Warren, Atty. Gen., and Lionel Browne, and Thos. I. Coakley, Deputy Attys. Gen., for respondents.

Plaintiff, a licensed optometrist instituted this proceeding in the superior court seeking a writ of mandate to compel respondents, the California State Board of Optometry and its members, to restore his license as an optometrist which had been revoked on December 19, 1938. Respondents demurred to the complaint and moved to strike practically all of it. The motion to strike was granted and the demurrer overruled. Respondents answered and the trial was had. The trial court made findings of fact and conclusions of law and rendered judgment for respondents. That judgment is now before us for review.

The use of proceedings in mandamus to review the actions of various officers and boards having statewide authority is of recent origin in California. See, Drummey v. State Board of Funeral Directors and Embalmers, 13 Cal.2d 75, 87 P.2d 848; McDonough v. Goodcell, 13 Cal.2d 741, 91 P.2d 1035, 123 A.L.R. 1205; Davis v. State Board of Optometry, 35 Cal.App.2d 428, 95 P.2d 959; Nider v. City Commission of City of Fresno, Cal.App., 97 P.2d 293. It is now established that orders of such officers and boards, depriving persons of licenses to engage in business or the practice of professions, can only be reviewed in mandamus proceedings. See Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557, 59 P.2d 119; Whitten v. California State Board of Optometry, 8 Cal.2d 444, 65 P.2d 1296, 15 A.L.R. 1.

That such orders must be reviewed in a mandamus proceeding by the courts of this state, where such review is properly demanded by the person deprived of such license, follows from those cases already cited, from St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 56 S.Ct. 720, 80 L.Ed. 1033, and other cases of similar import. Those cases held that a license to engage in business or to practice a profession is a property right that could not be taken away without due process of law; that since such officers and boards have only administrative powers and could not exercise judicial functions “the courts must provide for the notices and places of hearings and must pass on the weight and sufficiency of the evidence before the licenses could be revoked. Thus, as no other forum was available, and as no other remedy was provided by law it was necessary to employ the writ of mandate to satisfy the due process clauses of the Constitutions.” Nider v. City commission of City of Fresno, supra [97 P.2d 300]; 14th Amendment to U.S. Constitution; sec. 13, art. I, Constitution of California.

While it is clear that such orders must be reviewed in the courts if the aggrieved party so demands, the exact procedure to be followed in the reviewing courts has not yet been directly decided. Probably this is due to the fact that in the three cases involving orders of an officer or board having statewide jurisdiction (the Drummey, McDonough and Davis cases) the litigants were content to rest their cases on the proceedings and evidence taken before the administrative bodies which was admitted in evidence without objection. However, in each case the trial court was required to pass on the weight and sufficiency of the evidence before it. In the Davis case the judgment was reversed because no findings of fact had been made. In that case the Appellate Court said [35 Cal.App.2d 428, 95 P.2d 962]: “Although the parties apparently agreed to submit the issues upon the evidence adduced at the hearing before the board, nevertheless, under the circumstances, the court was bound to determine the questions of fact involved and necessarily to pass judgment upon the value and effect of the evidence presented. Findings, therefore, were necessary, indeed indispensable unless waived. The record reveals that the findings were not waived. The parties submitted the issues upon an agreed record of the evidence; it was the trial court's duty to find as to the effect of such evidence and in that connection make the necessary findings. [Citing cases.] This the trial court failed to do, which was error.”

In both the Drummey and the McDonough cases the reasoning of the Supreme Court strongly indicates that a trial de novo in the trial court was required in order to satisfy the due process clauses of our federal and state Constitutions.

If the courts furnish to an accused the only tribunal in which the due process clauses of the Constitutions can be satisfied, and if it is only in those courts that a trial (technically speaking) of the charges against an accused can be had, the conclusion that it must be a trial do novo, seems to be inescapable. As a trial is necessary before a license can be revoked, if the accused demands a trial, that proceeding should have all of the attributes of any other trial which would include the admission of all evidence that is competent and material to the issues made by the pleadings. If the parties are content to submit the cause on the evidence taken before the board, and that evidence is received and the trial court passes on its weight and sufficiency, makes findings of fact and conclusions of law and renders judgment, certainly there has been due process of law. On the other hand, where, as here, the accused plaintiff offers evidence not contained in the record of the proceedings before the board, that evidence should be received if it be competent and material to the issues before the court.

As we have observed, the trial court granted respondents' motion to strike practically all of the allegations of the complaint. It is true that the complaint was most loosely drawn and was full of legal conclusions which had no place in it. There were other allegations that were proper and germane to the issues. Practically all of them were stricken out. This was error which was prejudicial to the plaintiff. Further, the findings of fact are equally defective. Certain paragraphs of the complaint were found to be true and others to be untrue, when some of those paragraphs had been stricken in their entirety. Consequently, we cannot determine just what facts were intended to be found as true in support of the judgment.

In fairness to the trial judge it should be observed that these errors which we have pointed out would seem to have resulted from an inadvertence of a former counsel for the respondents. However, these errors are in the record and, after an inspection of the original files which it was stipulated we might make, are clearly discernible.

The complaint should be amended so that the remaining legal conclusions may be eliminated and the facts pertinent to the controversy clearly alleged. A trial de novo should be had.

The judgment is reversed and the cause is remanded for new trial with the following directions to the trial court: Permit plaintiff to file an amended complaint, if he be so advised; permit respondents a reasonable time in which to plead to the amended complaint if one be filed.

MARKS, Justice.

We concur: BARNARD, P.J.; GRIFFIN, J.

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