COVERT v. STATE BOARD OF EQUALIZATION

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District Court of Appeal, Third District, California.

COVERT v. STATE BOARD OF EQUALIZATION et al.

Civ. 7143.

Decided: October 24, 1945

Robt. W. Kenny, Atty. Gen., and Allen L. Martin and J. Albert Hutchinson, Deputy Attys. Gen., for State Equalization Board. Carl B. Sturzenacker, of Hollywood, and Ralph E. Swing, of San Bernardino, for McMillan. Donald Paul Covert, of Glendale, for respondent.

This is an appeal from a judgment of the superior court ordering the issuance of a peremptory writ of mandate directing the State Board of Equalization to revoke an on-sale liquor license previously issued to one Thomas C. McMillan, one of the appellants herein, on the ground that said licensee was violating the applicable provisions of the Alcoholic Beverage Control Act of the State of California, Gen.Laws 1937, Act 3796, and Article XX, section 22 of the Constitution of this state.

It appears from the record that McMillan was the operator of an establishment in Glendale, California, known as the ‘Tom Tom’ or ‘Esquire’ Cafe. While said appellant was so engaged, respondent Covert, on his own behalf and on behalf of other citizens of Glendale and certain organizations, filed with said board a verified complaint in which he alleged, among other things, that McMillan was conducting a public saloon, public bar and public barroom on the licensed premises, and requested the board to revoke and cancel his license. A hearing was held by the board at which considerable evidence was introduced. On behalf of McMillan it was shown that he was equipped to and did serve meals at his premises. However, he testified that his accounts and records disclosed that approximately 80% of his cash receipts were derived from the sale of intoxicating liquors and approximately 20% of his receipts were derived from the sale of food. The board, following the findings and conclusions and the recommendation of its hearing officer, refused to take action against the licensee, and dismissed the complaint.

After exhausting his administrative remedies, respondent Covert petitioned the Superior Court in and for the County of Sacramento for a writ of mandate praying that the action of the appellant board be set aside and that it be directed and compelled to discipline the licensee by revoking his license. The amended petition, among other things, alleged in effect that, as McMillan had testified that the sales of liquor and food in his cafe were in the proportions previously mentioned, under the case of Hammond v. McDonald, 49 Cal.App.2d 671, 122 P.2d 332, it was mandatory upon the board to revoke the license. Included in the petition by incorporation, and made a part thereof, were the findings and recommendations of the hearing officer at the original hearing. To this petition the board demurred, alleging want of jurisdiction, want of legal capacity to sue and failure to state a cause of action on the part of the complainant. The trial court overruled the demurrer and in doing so relied to a great extent upon the case cited by respondent in his petition. The cause was heard and submitted on the transcript of the testimony received at the original hearing.

The court, in its findings of fact and conclusions of law, determined that the only evidence before the board was that McMillan was conducting a public saloon within the meaning of the Alcoholic Beverage Control Act; that the sale of intoxicating liquor was the principal business and the service of food was a side line of said saloon, amounting to a sham to give the business the appearance of a restaurant; that for the purpose of attracting young people particularly, it was designated as a cafe; the rooms were darkened, and mechanical musical instruments played while men and women, many of them young and some in their teens, sat at the bar or at tables, drinking liquor; and that the action of the board in dismissing petitioner's complaint was capricious, arbitrary, without evidence and without right. Thereafter the court rendered judgment for the petitioner Covert, respondent herein, directing the issuance of a peremptory writ of mandate commanding the board to revoke the license in question. The writ was issued accordingly, and from said judgment of the trial court the board and McMillan have appealed.

The sole issue as made by the allegations of respondent's amended petition and appellants' return, and the sole issue upon appeal as presented by the original briefs of the parties, is confined to the question: whether the licensee McMillan was operating a bona fide restaurant, cafe, or public eating place, within the meaning of said Article XX, section 22, in view of the percentage breakdown of the cash receipts derived from his business activities. Subsequently, the additional briefs, which have been filed by amicus curiae and appellant and respondent, enlarge the question presented originally to the trial court and this court so as to include the contentions that, (1) the trial court erred in making independent findings of fact; (2) appellants' determination of fact was final and conclusive; (3) the establishment operated by the licensee is not a public saloon as a matter of law; (4) the trial court sought to exercise the power and discretion vested in appellant, and (5) the respondent had no justiciable interest in this proceeding.

Following the argument set forth in his petition to the superior court, respondent strenuously contends before us that it first must be determined whether the licensee was operating a ‘public saloon, public bar or public barroom’ before determining whether the licensee was operating a bona fide eating place; that the established and logical rule is one predicated upon the principal business done on the premises; that the receipts of a business are the best method of determining what is the principal business and what is the incidental or side line; that such a determination is one of fact for the board in the first instance, although upon mandate a superior court may consider all of the original evidence and any additional evidence as well as make findings of fact which will be conclusive on appeal.

The portion of Article XX, section 22, of the state Constitution which is pertinent to the discussion herein, provides in part that: ‘Intoxicating liquors, other than beers, shall not be consumed, bought, sold, or otherwise disposed of for consumption on the premises, in any public saloon, public bar or public barroom within the State; provided, however, that subject to the aforesaid restriction, all intoxicating liquors may be kept and may be bought, sold, served, consumed, and otherwise disposed of in any bona fide hotel, restaurant, cafe, * * * or other public eating place * * *.’ (Italics added.)

This section of the Constitution was adopted by the people of this state at the 1934 general election. Prior to such general election, said section, as originally enacted in 1932, authorized the sale of alcoholic liquors (wines and beers) in hotels, restaurants, etc., when ‘served and consumed with meals furnished in good faith to the guests and patrons thereof.’ (Italics added.) The words ‘good faith’ as so used therein obviously related to the furnishing of meals rather than the place where meals were served. The 1934 amendment, however, materially changed such wording and applied the ‘good faith’ language to the place in which the liquor was to be sold and consumed, by providing that ‘intoxicating liquors may be * * * sold, served, consumed, and otherwise disposed of in any bona fide hotel, restaurant, cafe, * * * or other public eating place * * *,’ thereby eliminating all reference to meals. (Italics added.) The only conditions imposed by the section as it now reads are that the eating place must be bona fide and that the alcoholic liquor must be consumed ‘in’ such eating place. In the statement addressed to the voters at the 1934 election the proponents of the measure stated:

‘The issue is clear-cut. The sale of beer and wine, with or without meals, and of hard liquor by the drink, with or without meals, must stop in California after November 6th unless the people approve Proposition 2 at the polls. In voting for this proposition the people will vote for the open and regulated sale of all intoxicating liquors, with or without meals, in legitimate eating places so licensed by the State Board of Equalization.’

The opponents stated:

‘The places in which all intoxicating liquors may be freely sold and consumed, if the proposed amendment is adopted, are so varied, diversified and numerous that it would amount to no restriction worthy of the name.’

From the statements so quoted and from the provisions of the constitutional amendment as adopted, it is evident that it was not the intent of the voters to absolutely forbid the sale or consumption of alcoholic liquors but merely to regulate and prohibit their sale or consumption in certain designated establishments only; or, as stated in the first Hammond v. McDonald case, 32 Cal.App.2d 187, 194, 89 P.2d 407, 411:

‘A reading of the constitutional amendment and the Alcoholic Beverage Control Act, especially sections 1 and 53 thereof, indicates that it was the intention of the people, as well as of the legislature, to prevent the return of the public saloon or barroom to the social life of California after the repeal of the Eighteenth Amendment to the federal Constitution.’

If this is the proper view to be taken—and we conclude it is—it becomes necessary to interpret said constitutional amendment in the light of the ‘evil which it [sought] to remedy.’ Rector, etc., of Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 513, 36 L.Ed. 226. In this regard we are indebted to Mr. Swing who in his amicus curiae brief has set forth the historical background of the public saloon or public barroom as it existed in this state prior to the enactment of the 18th Amendment. From this we find that the conditions then prevalent were little different from those existing in Kansas, when the Supreme Court of that state, in discussing comparable questions in the Intoxicating Liquor Cases, 25 Kan. 751, 37 Am.Rep. 284, stated: ‘the courts may not read a law simply as they wish it should read. But other matters may also be considered, and among them the evils sought to be remedied. * * * Now what was the evil sought to be remedied by this statute, and the constitutional amendment of which it was an outgrowth? * * * The history of the movement which resulted in the adoption of the ‘prohibition amendment,’ and the enactment of the law now under consideration, and the object to be thereby secured, are too well known to give rise to any dispute. * * *' Applying these rules to the question now before this court, it would appear that the purpose of section 22, as amended was to outlaw the public saloon and public barroom as it previously had been known in California, but still retain to the people of this state the right to purchase alcoholic liquors in any bona fide eating place, thereby fostering the co-existence of two businesses, viz., the sale of food and the sale of alcoholic liquor, at the same time lodging with the board the duty of seeing that the two activities were being conducted together in the same place and in a proper manner.

In view of these facts, we are disposed to state the main question thus: Does said constitutional requirement of bona fides with respect to a restaurant, cafe, or other public eating place necessitate the showing that the principal or most business of such establishment is the dispensing of food, or is it sufficient for the licensee to show that a substantial part of the business or businesses conducted on the premises is the dispensing of food, if otherwise such part appears to be conducted in good faith? If the latter is the proper test, then the judgment of the trial court cannot be supported, as the complaint states no cause of action and the writ should not issue to compel the doing of an act which the law does not specially enjoin.

Upon this question, it is our conclusion that the trial court, by defining the expression ‘bona fide’ in terms of the principal amount of business done, has limited the accepted definition of the expression as commonly if not universally used (and presumably as it was used in the Constitution), and that the conclusion reached by that court amounts to what may be termed judicial legislation. Generally it may be said that an interpretation of a constitutional provision, whether by the legislature or the judiciary, which goes beyond or is contrary to the obvious meaning that may be ascribed to such provision, thereby establishing a rule that is not within any accepted definition of the language used, is unwarranted and should be declared invalid. Hammond v. McDonald, 49 Cal.App.2d 671, 686, 122 P.2d 332; State Board of Equalization v. Young's Market Co., 299 U.S. 59, 62, 57 S.Ct. 77, 81 L.Ed. 38. See also 12 C.J. 884, 885, § 387; 16 C.J.S., Constitutional Law, § 151.

Where, as here, the statute has not ascribed a particular meaning to ‘bona fide,’ the words must be taken ‘according to their common acceptation.’ In re Herman, 183 Cal. 153, 164, 191 P. 934, 939. Bona fide has many synonyms but none that connotes ‘principal’, ‘main’ or ‘chief’. See Words and Phrases, Perm.Ed., vol. 5, pp. 609, 610. It may denote ‘a matter of substance’ when used in reference to the subscribers necessary to constitute a newspaper one of general circulation. In re Application of Green, 21 Cal.App. 138, 131 P. 91, 93. Likewise it has been held that bona fide operation as a common carrier means giving substantial service as such carrier. Turner v. United States, D.C.N.C., 56 F.Supp. 798, 800, 801. While in United States v. Carolina Carrier's Corporation, 315 U.S. 475, 480, 481, 62 S.Ct. 722, 726, 86 L.Ed. 971, the court, in construing the ‘grandfather clause’ of the Motor Carrier Act, 49 U.S.C.A. § 306 which provided the test of ‘bona fide operation,’ stated: ‘That standard carries the connotation of substantiality.’ See also Helvering v. Minnesota Tea Co., 296 U.S. 378, 385, 56 S.Ct. 269, 80 L.Ed. 284.

If the words ‘bona fide’ are to be interpreted as substantial they cannot mean large or larger, for there may be several elements all of which are substantial. Fuhrman v. American Nat. B. & L. Ass'n, 126 Cal.App. 202, 210, 211, 14 P.2d 601; Miller v. Commissioner of Internal Revenue, 6 Cir., 84 F.2d 415, 418; Magruder v. Safe Deposit & Trust Co. of Baltimore, 4 Cir., 121 F.2d 981, 985; Pan American Airways Co. v. Civil Aeronautics Authority, 2 Cir., 121 F.2d 810, 813. A substantial element, then, does not mean the principal element. Miller v. Commissioner of Internal Revenue, supra. On the other hand, ‘principal’ means the main or chief element; and where there are several elements the principal one must be the higher or highest in value, character, or importance. See Webster's New International Dictionary, 2d Ed.; Kelty v. Burgess, 84 Kan. 678, 115 P. 583, 584.

Therefore, to hold that the expression ‘bona fide’, as used in section 22 in relation to a hotel, restaurant, cafe, cafeteria, or other public eating place, could mean only that the principal business of such establishment is the serving of food, is to conclude that only one business can satisfy the constitutional requirement. However, the very purpose of said section is to foster a co-existence of the two businesses—liquor and food—it being the duty of the board to see that they are properly conducted together. Conceivably, the Constitution might well have provided that intoxicating liquor could be served in a restaurant where the principal business was the service of food, and the dispensing of liquor a mere adjunct or side line, without the necessity of an additional license, under somewhat the same theory that obtained in the days of the old-fashioned saloon when the dispensing of sandwiches, hard boiled eggs, etc., did not require a restaurant license. But this was not done; and, therefore, neither can a court, however well intentioned, do so.

It further may be said that if a quantitative test of bona fides is an appropriate yardstick of the provision in question, substantiality rather than principality is the correct measure. To apply a quantitative test and to make it exclusive of all others, as the principal business test necessarily does, a court must discard many other important factual considerations. In other words, ‘whether any given place is a bona fide restaurant, or is so operated as to be a public saloon, bar, or barroom, is one of fact.’ Hammond v. McDonald, 49 Cal.App.2d 671, 686, 122 P.2d 332, 340.

It is this statement which we consider to be the basis of the court's determination in the case last cited. The use of the words ‘principal,’ ‘incidental’ and ‘side line’ was made in a discussion of the history of the public saloon and public bar in relation to the enactment of section 22. Respondent, however, contends that the court advisedly used such words, and in support of such contention cites the case of Guillara v. Liquor Control Commission, 121 Conn. 441, 185 A. 398, 105 A.L.R. 563, as being directly in point. It is true that in the Guillara case the court, in referring to establishments within the purview of the Connecticut statute, stated that the sale of alcoholic liquors ‘shall be confined to places in which such sale is an incidental adjunct to another and principal established business.’ However, an examination of the statute involved in that case, the Liquor Control Act, Gen.Stats.Cum.Supp.1935, ch. 151, clearly shows that the court was merely following the wording of the definitions specifically set forth in section 1012c thereof. That is quite different from the constitutional provision now before this court wherein the only restriction set forth is that sales must be made in a bona fide restaurant, etc. Respondent has cited no other case using comparable language, nor has any such case come to our attention.

Turning then to the additional factual matters which must be considered, we find that bona fide literally means ‘by or in good faith,’ and although expressed in Latin may be considered to have become Anglicized as a term in general use throughout the United States. 11 C.J.S., Bona Fide, p. 387. That text further states: ‘It has been defined as meaning acting honestly without purpose to defraud; good faith, as distinguished from bad faith; honest; honestly; without actual notice; without fraud or unfair dealing; also, in a derived sense, real. It has been said that the phrase is restrictive, and that its correct province is to qualify things or actions that have relation to the mind or motive of the individual.’ It is stated thus in Black's Law Dictionary: ‘Bona fide. In or with good faith. Honestly, openly, and sincerely; without deceit or fraud. Truly; actually; without simulation or pretense. Innocently; in the attitude of trust and confidence; without notice of fraud, etc.’ As defined in 1 Bouv. Law Dict., Rawle's Third Revision, p. 374, bona fides means: ‘Good faith, honesty, as distinguished from mala fides (bad faith).’ See also Words and Phrases, Perm.Ed., Vol. 5, pp. 609–614.

Thus, in determining the bona fides of a restaurant, cafe, or other public eating place, as contemplated by section 22, it would not seem that the proper method is to contrast it with a saloon—for that is to assume that the activities of dispensing liquor and food may not co-exist—but rather to contrast it with one that is sham or colorable only, a mere device where, under the guise of serving food, some other activity is actually conducted.

The further reason for holding erroneous the application of the ‘principal business' test, in determining what constitutes a bona fide public eating place, is that such a test amounts to a hard and fast rule which deprives the board of the right to exercise the discretion which has been specially conferred upon it by the Constitution: ‘The State Board of Equalization * * * shall have the power, in its discretion, to deny or revoke any specific liquor license if it shall determine for good cause * * *.’ (Italics added.) It is well settled that to prescribe a fixed rule is at the same time to deny discretion; and conversely where discretion has been conferred, no fixed rule may be prescribed. As stated in Gossman v. Gossman, 52 Cal.App.2d 184, 194, 195, 126 P.2d 178, quoting from Bower's Judicial Discretion of Trial Courts (1931), sec. 10, pp. 14 and 15:

‘It is the power of decision, exercised to the necessary end of awarding justice, and based upon reason and the law, but for which decision there is no special governing statute or rule. * * * Discretion implies that in the absence of positive law or fixed rule, the judge is to decide by his view of expediency or of the demands of equity and justice.’ (Italics added.)

Or, as stated in 27 C.J.S. Discretion, p. 134:

‘Discretion in performing an act arises when it may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed, but when a positive duty is enjoined and there is but one way in which it can be performed lawfully, then there is no discretion.’ (Italics added.)

While on page 133 of the same volume it is stated:

‘Discretion * * * the power to discriminate and determine what, under existing circumstances, is right and proper * * *.’ (Italics added.)

The trial court, in setting aside the findings and decision of the board and ordering the issuance of the writ prayed for, must have proceeded on one of two theories: either (1) that the action of the board was reviewable on mandamus to the same extent and in the same manner as the action of an administrative body created by the legislature and operating under statutory authority only, or (2) that the action of the board was reviewable de novo under the provisions of section 46 of the Alcoholic Beverage Control Act. We are of the opinion that neither of these theories is tenable. The fact that the parties stipulated that mandamus was the proper remedy, did not, nor could it, confer on the court any greater power than it otherwise had.

The State Board of Equalization is not merely a ministerial body created by statute to which has been given limited discretion by the legislature, like the many administrative boards whose decisions are necessarily reviewable by a judicial tribunal in order to satisfy the requirements of due process. This board was created by the people of the state upon the adoption of Article XIII, section 9, of the Constitution. It has been endowed by the Constitution, not by the legislature, with ‘the exclusive power to license the manufacture, importation and sale of intoxicating liquors.’ (Italics added.) Const. Art. XX, sec. 22. Furthermore, by the same organic law it has been given ‘the power, in its discretion,’ to deny or revoke any specific liquor license. And by that same law it has been specifically authorized to ‘determine’ what shall constitute ‘good cause’ for denial or revocation. Hence, the board, being a constitutionally created body and permitted to act as a court without contravening those provisions of controlling law which prohibit the legislature from establishing a statewide court and also those provisions which prohibit the according of finality to the findings and decisions of a body other than a tribunal functioning as a court, affords to litigants due process in accordance with the Bill of Rights. Since the board is such a body invested with such powers and rights, we conclude that its decisions, deliberately arrived at after due hearing, must be deemed to be final and subject to review only to the same extent and in the same manner that decisions of other judicial tribunals exercising statewide powers may be reviewed. Additional factors fortifying the conclusion thus reached are: (1) The State Liquor Control Act of 1933, Stats.1933, p. 1697, ch. 658, sec. 23, specifically referred to in said section 22 of Article XX, provided that the decision of the board on the rehearing of an application to revoke or suspend a license ‘is final and effective upon the rendition thereof’; and, (2) the Alcoholic Beverage Control Act, Deering's General Laws, Act 3796, enacted pursuant to authorization by the Constitution, so far as it is not inconsistent with the provisions thereof, provides ample machinery for giving notice and conducting hearings in consonance with the mandates of due process of law.

Although the history of the judicial interpretation of administrative law in this state does not abound appreciably in unanimity of opinion, we may conclude that certain principles have been enunciated with more or less finality. An examination of the recent leading cases discloses that the rather extreme position taken by the majority of the Court in the case of Laisne v. State Board of Optometry, 19 Cal.2d 83, 123 P.2d 457, has been modified somewhat by the majority opinion in the later cases of Dare v. Board of Medical Examiners, 21 Cal.2d 790, 136 P.2d 304, and Sipper v. Urban, 22 Cal.2d 138, 137 P.2d 425, 426. It now may be said that, although a reviewing court may exercise an independent judgment on both the facts and the law, the record of the administrative agency comes before such court endowed with a strong presumption in favor of its regularity; and upon him who would challenge such record is cast the burden of clearly showing to the contrary. As stated in the case last cited, it was incumbent upon the petitioner to ‘state a prima facie case entitling him to relief.’

In Hansen v. State Board of Equalization, 43 Cal.App.2d 176, 110 P.2d 453, this court, in affirming a judgment of the trial court entered after sustaining a demurrer to a petition for a writ of mandate to compel the board to issue an off-sale liquor license, quoted that portion of the opinion in Maxwell v. Civil Service Commission, 169 Cal. 336, 339, 146 P. 869, 871, wherein it was stated that ‘Courts should let administrative boards and officers work out their problems with as little judicial interference as possible. They may decide a particular question wrong—but it is their question.’ This necessarily assumes that such agencies must be accorded a wide discretion, the abuse of which must appear clearly before the courts will interfere. In the recent case of Rible v. Hughes, 24 Cal.2d 437, 445, 150 P.2d 455, 459, 154 A.L.R. 137, wherein the court referred to certain qualifications set forth in the teachers' salary schedules of the Sacramento city schools, the court stated: ‘If there appears to be some reasonable basis for the classification, a court will not substitute its judgment for that of the administrative body [citing cases].’

But, as previously mentioned, we are confronted with an additional element in the instant case. Here constitutional provisions—not merely legislative enactments—have invested the board with broad discretionary powers and thereby have imparted to its findings and decisions a higher degree of comparative finality. In referring to the specific constitutional provisions under discussion herein, this court, in Hansen v. State Board of Equalization, 43 Cal.App.2d 176, 180, 110 P.2d 453, 455, stated that they were ‘designed to give the board broad discretionary powers in the matter of granting or refusing to grant licenses of this character. Whether or not ‘good cause’ for the denial of the license existed was a matter for determination by the board, and not by the courts.'

Therefore, unless the ‘principal business' yardstick which the trial court applied to the facts as disclosed by the findings and as adopted by the board can be said to be a fixed rule of law, there would appear to be no plausible basis on which the trial court could have substituted its judgment for that of the board. For, ‘to hold that the exercise of discretion may be reviewed by a tribunal other than that upon which it is conferred would pervert and destroy the meaning of the word.’ Schneider v. Hawkins, 179 Md. 21, 16 A.2d 861, 864; State v. Tindell, 112 Kan. 256, 210 P. 619, 622; Deeds v. Deeds, 108 Kan. 770, 196 P. 1109. See also, Delno v. Market St. Ry. Co., 9 Cir., 124 F.2d 965, 967.

Again, by said section 22 the board is specifically empowered by the Constitution to deny or revoke any specific liquor license ‘if it shall determine for good cause’ that the granting or denying of such license would be contrary to public welfare or morals. In this regard the significant use of the phrase ‘if it shall determine for good cause’ would appear to reflect a desire on the part of the framers of the Constitution to emphasize the power of the board to determine the critical facts. Substantiation for such conclusion is found in the case of State v. Louisiana Boxing Comm., 163 La. 418, 112 So. 31, 33, where there was presented to the court a question relative to the interpretation of a Louisiana statute which provided, ‘the commission may, at its discretion, issue, and for cause revoke, a license to conduct * * * boxing * * * matches.’ Act No. 123 of 1920, § 2. The court, in determining the question so presented, stated: ‘* * * we think by fair implication, when it restricts the right of revocation by the commission for cause only, it necessarily means for any cause which the commission may determine justifies such action after notice of hearing to the licensee to appear and answer any charge or complaint lodged against him.’ This particular language was quoted with approval in Carroll v. California Horse Racing Board, 16 Cal.2d 164, 167, 105 P.2d 110, in support of the point therein made that a statutory provision prohibiting the revocation of a license without ‘just cause’ requires notice and hearing. Obviously, therefore, the investment of authority to deny or revoke a license for cause necessarily implies that it be such cause as is deemed sufficient by the body upon which the authority is conferred, not some other undersignated agency.

Furthermore, it is apparent from a summary of the express provisions of section 22 of Article XX of the Constitution, and the pertinent and implementing provisions of the Alcoholic Beverage Control Act, that, under the power conferred upon it, the State Board of Equalization is empowered to administer oaths, to issue subpoenas, to take testimony, and to require that the superior court, as a matter of course, issue an order compelling compliance with the process of the board and punish a noncompliance as a contempt of court (irrespective of the inherent power of the board in this respect). Where the denial, revocation, or suspension of a license is sought, the proceedings are in substance those of a court in an action at law. A complaint in writing is filed with the board by any person, which complaint must be verified unless made by a member or employee of the board. The time and place for the hearing are fixed by the board, and a copy of the complaint (or protest), together with notice of the time and place of hearing, is sent to the licensee or the applicant for a license (as the case may be), and written notice is likewise mailed to the complaining or protesting party. After a hearing before the board or a representative, under liberal rules of evidence best calculated to disclose the rights of the parties, the representative certifies to the board his findings and recommendation, a copy of which is mailed to the parties. Written objections may be filed and a further hearing had. The board makes its decision, and the written decision, findings, recommendation, and objections are filed and open for public inspection. The board may grant a rehearing de novo. Under the State Liquor Control Act, adopted as a part of the constitutional scheme by Const. Art. XX, sec. 22, as modified in 1934, the decision of the board after submission on rehearing was expressly made ‘final and effective upon the rendition thereof.’ Stats.1933, p. 1697, ch. 658, sec. 23. By the Alcoholic Beverage Control Act of 1935 (Stats.1935, p. 1123, ch. 330, sec. 46) it was provided that the action of the board on a license complaint or protest ‘shall be subject to review by any court of competent jurisdiction.’

It has been stated in Western Metals Supply Co. v. Pillsbury, 172 Cal. 407, 412, 413, 156 P. 491, Ann.Cas.1917E, 390, that ‘where the law creates a right in one person against another and vests a board with the jurisdiction to hear complaints, to issue process, to compel the attendance of witnesses, to determine conclusively the issues raised by the pleadings of contending parties, and to make a final judgment or award determining the rights of those parties,’ judicial power has been exercised, and that it may be safely conceded that the ‘power to hear and determine rights of property and of persons between private parties is judicial, and can only be conferred on the courts.’ The language of this case was quoted with approval in the Laisne case, supra, as illustrative of the rule that only by a special enabling provision in the Constitution, section 21 of Article XX, could judicial power be vested as it was in the Industrial Accident Commission.

The circumstance that the Alcoholic Beverage Control Act omits to confer on the Board of Equalization the power to punish for contempt, conferring instead that power on the superior court, is not of itself evidence that the legislature deemed this to have been without the power of the board. It is as reasonable to assume that the legislature may have been acting merely out of an abundance of precaution. However, in any event a court has the inherent power to punish for a contempt that interferes with its own processes or proceedings. Bridges v. Superior Court, 14 Cal.2d 464, 478, 94 P.2d 983.

It therefore would appear that the Board of Equalization (1) exercises judicial functions, and (2) is the fact finding body designated by organic law to determine the specific question at issue herein, whether a liquor license should or should not be granted or revoked.

In the recent case of Universal Consolidated Oil Co. v. Byram, 25 Cal.2d 353, 356 362, 153 P.2d 746, 748, the court stated that when the county board of supervisors was sitting as a board of equalization for the purpose of equalizing assessments, it was ‘exercising judicial functions' and that its decision upon such question “constitutes an independent and conclusive judgment of the tribunal created by law for the determination of that question,’ * * *; that such adjudication ‘cannot be avoided, unless the board has proceeded ‘arbitrarily and in willful disregard of the law’ * * *'; and that ‘Mere errors in honest judgment * * * will not obviate the binding effect of the conclusion of the board.” The court then concluded by saying: ‘The respective county board of equalization is the fact-finding body designated by law * * * (Cal.Const. art. XIII, § 9), and when that tribunal * * * makes its findings on the facts, such decision is final and conclusive.’ It necessarily follows that the State Board of Equalization, whose existence stems from the same constitutional provision (Art. XIII, sec. 9), is made none the less a tribunal authorized to render relatively final decisions by constitutionally giving to it the additional and ‘exclusive power’ to license the sale of alcoholic beverages, and the power ‘in its discretion’ to revoke the same for ‘good cause’ as set forth in said Article XX, section 22.

Although many cases involving the Board of Equalization have been decided by our courts, as yet the question regarding the operation and effect of the findings and decision of said board as compared with those of other constitutionally created bodies has neither been presented nor decided. However, respondent strongly urges that the case of Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557, 59 P.2d 119, is determinative of this question. An examination of this case discloses that it concerned an application for a writ of review to determine the validity of an order of the board imposing on the petitioner therein an additional assessment of retail sales tax under the provisions of section 33 of the Retail Sales Act of 1933, Stats.1933, p. 2599, as amended. The court held said section of the act to be invalid as in contravention of Article VI, section 1, of the Constitution, and dismissed the proceeding. The court therein made no mention of Article XIII, section 9, of the Constitution, creating the Board of Equalization, nor of Article XX, section 22, giving the board exclusive control over the licensing and regulation of intoxicating liquors. The rationale of that decision was thus summed up by the court (6 Cal.2d at page 559, 59 P.2d at page 119):

‘Concisely stated, our conclusion that we are without authority or jurisdiction to entertain this proceeding or to issue the writ here sought is based upon the established premises that a writ of certiorari, commonly referred to as a writ of review, will lie only to review the exercise of judicial functions (section 1068, Code Civ.Proc. * * *) and that the Legislature is without power, in the absence of constitutional provision authorizing the same, to confer judicial functions upon a state-wide administrative agency of the character of the respondent.’ (Italics added.)

In addition, an examination of the transcript and briefs filed in that case discloses that nowhere was any mention made of said Article XIII, section 9, nor of said Article XX, section 22. Furthermore, it should be noted that none of the cases cited by the court in support of its ruling (except the Industrial Accident Commission cases used by way of contrast) involved a constitutionally created state-wide board. One part of the opinion deserves special notice, viz., the observation that that court had theretofore denied applications for writs of certiorari in cases involving liquor licenses, Munhollen v. State Board of Equalization, S.F. 15513, and Hendrickson v. State Board of Equalization, S.F. 15529, being the two cases specifically mentioned. See Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557, 564, 59 P.2d 119. An examination of the petitions in those two cases likewise discloses that the petitioners therein made no attempt to show that the board was a constitutionally created tribunal whose findings and decision are subject to special rules not applicable to agencies created by statute.

We are thus confronted with the well established principle which declares that, where a point of law might properly have been raised by the parties or considered by the court but was not so raised or considered, the decision of the court does not constitute a judicial precedent on that point. In the case under discussion (Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557, 564, 59 P.2d 119, 122) the court stated that the petitioner therein could not rely upon a particular case, for in that case ‘the jurisdictional point here considered was neither urged nor discussed by the parties.’ See, also, Gonzales v. Superior Court, 3 Cal.2d 260, 264, 44 P.2d 320; Oakland, etc., Co. v. Whittel Realty Co., 185 Cal. 113, 119, 120, 195 P. 1058.

Applying this well settled rule to the problem presented by the instant case we may say that since the special nature of the State Board of Equalization as a constitutionally created body and the special character of its powers with respect to liquor licenses which the Constitution definitely conferred on such board, and more particularly the operation and effect of the findings and decision of such board, are questions which might have been raised and considered in the Standard Oil Company case but which were not in fact raised or considered, the decision of the court therein may not be deemed to be authority on the points now before us.

It is further to be noted that although the Standard Oil case has been cited frequently in subsequent decisions, yet never have the courts of this state purported to extend the rule therein expressed beyond the precise point decided, viz., that in the absence of a constitutional grant of power, a state board cannot exercise judicial functions, and that the legislature is powerless to confer such power upon it. Whitten v. California State Board of Optometry, 8 Cal.2d 444, 65 P.2d 1296, 115 A.L.R. 1; Bodinson Mfg. Co. v. California Employment Commission, 17 Cal.2d 321, 109 P.2d 935; Laisne v. State Board of Optometry, supra; and Dare v. Board of Medical Examiners, supra.

It is readily apparent that the reason why administrative boards (other than the Industrial Accident Commission and the Railroad Commission) are deemed to be without final judicial power, is that, in the absence of a special constitutional enabling provision, the legislature cannot confer such power, being specifically precluded from doing so by Article III, section 1, and Article VI, section 1, of the Constitution and by the due process clauses of the federal and state Constitutions. Const.U.S. Amend. 14, Const.Cal. art. 1, § 13. Department of Public Works, etc., v. Superior Court, etc., 197 Cal. 215, 239 P. 1076; Laisne v. State Board, etc., supra.

From this it logically follows that in so far as the constitutionally created State Board of Equalization is concerned the reason for the rule has ceased, and, as provided in Civ.Code, § 3510: ‘When the reason of a rule ceases, so should the rule itself.’ Town of Antioch v. Williams Irrigation District, etc., 188 Cal. 451, 462, 205 P. 688; Rinaldo v. Superior Court, 15 Cal.App.2d 585, 594, 59 P.2d 868. See also 14 C.J.S., p. 346.

The final question for consideration relates to the validity of section 46 of the Alcoholic Beverage Control Act, the pertinent portions of which are as follows:

‘The person affected by any ruling * * * may * * * file an action in the superior court of California in and for the county of Sacramento * * * for a review of the ruling, order, decision, or other official act of the board. Said court shall review all records on file with the board which pertain to said ruling, order, decision or other official act, and if furnished by the board, a transcript of evidence taken by the board, and said court shall take such additional relevant and competent evidence as said court may require or as may be submitted by the board or the person filing such petition for review and shall then render, according to the weight of evidence adduced before said court, judgment affirming, reversing or modifying the action of the board.’

It is appellants' contention that said section is invalid as a violation of the separation of powers provision of the Constitution, that it is in direct conflict with the constitutional provision vesting discretionary powers with the board, and that it is invalid for the further reason that the legislature can neither limit the constitutionally created jurisdiction of the board nor enlarge the jurisdiction of the superior court.

No authorization for the enactment of section 46 can be found in the Constitution, although it is true that section 22 of Article XX declares that, ‘until the Legislature shall otherwise provide,’ the privilege of dispensing intoxicating liquors in bona fide public eating places shall be licensed and regulated under the applicable provisions of the State Liquor Control Act, Stats.1933, ch. 658, ‘in so far as the same are not inconsistent with the provisions hereof.’ It is readily apparent that the attempted limitation of the finality and conclusiveness of the board's decision, which section 46 of the Alcoholic Beverage Control Act necessarily imposes, is entirely at variance with the constitutional grant of ‘exclusive power’ which has been previously discussed herein, and that such section, being without constitutional authorization, necessarily must fall. For, as stated in Chinn v. Superior Court, 156 Cal. 478, 480, 105 P. 580, 581, cited and quoted with approval in Laisne v. State Board of Optometry, supra: ‘It is a well-recognized principle that where the judicial power of courts, either original or appellate, is fixed by constitutional provisions, the Legislature cannot either limit or extend that jurisdiction.’ To the same effect are Lemen v. Edmunson, 202 Cal. 760, 762, 262 P. 735; McClintock v. Abel, 21 Cal.App.2d 11, 17, 68 P.2d 273.

Specifically, since there is no due process or other constitutional objection such as that which prevents a recognition of the attempted conferment of discretionary judicial or legislative power on a ministerial body, the discretionary power lodged with the board by the Constitution to deny or revoke licenses for good cause must be permitted to be exercised and may not be whittled down by a proceeding which gives to another tribunal the authority to retry the issues on which the discretion was exercised or to substitute its judgment for that of the board. Obviously, the subjection of the decision of the board to a trial de novo before another body diminishes the effectiveness of the decision of the board and decreases its jurisdiction. This was the question directly at issue in the case of Saxton v. Board of Education, 206 Cal. 758, at page 768, 276 P. 998, at page 1002, and the court therein stated: ‘The effect of the amendment, therefore, is not to enlarge the power of the court in matters of mandamus, but to diminish the effectiveness of orders of boards of education and boards of trustees in dismissing teachers.’ To the same effect was the holding of the court in Whitten v. State Board, supra, Also, it has been held categorically in the case of Dawson v. Industrial Accident Commission, 54 Cal.App.2d 594, 599, 129 P.2d 479, that where a tribunal (in that case the Industrial Accident Commission) is authorized to and does act as a court in at least a quasi-judicial capacity, and there is no appeal from its decisions, its proceedings may not be tried de novo by a reviewing court.

Therefore, under well established rules, if section 46 attempts to give a right of appeal from a decision of the board—and we conclude it does—it is invalid as purporting to enlarge the jurisdiction of the court to which the appeal is to be taken, viz., the superior court.

As our conclusion is that the judgment of the trial court must be reversed, it becomes unnecessary to determine the remaining questions presented in this appeal.

The judgment is reversed.

I dissent. In my opinion the decision in Hammond v. McDonald, 49 Cal.App.2d 671, 122 P.2d 332, in which case the Supreme Court denied a hearing, is controlling here, and supports the conclusions of the trial court. In that case the court said, 49 Cal.App.2d at page 685, 122 P.2d at page 340:

‘A restaurant which is kept and operated for the purpose of furnishing meals to the public, the service of intoxicating liquors therein being merely incidental to that business, is what it purports to be, and is therefore a bona fide restaurant, and may as a casual and incidental part of its business sell such liquors and allow their consumption upon the premises even without meals. But where the principal business of the restaurant becomes the sale and service of intoxicating liquors, which are consumed on the premises, with the sale and service of meals the incidental matter, or ‘side-line,’ such place is no longer a bona fide restaurant, but is to be regarded as a public saloon or barroom, within the intent of the constitutional provision, and the sales of such liquor therein are prohibited. Any rule more liberal to the restaurant keeper would, in effect, wipe out the prohibition of saloons, et cetera, and give the proviso complete dominance over the ‘restriction’ to which, by its own terms, it is subject.'

The evidence in the case before us shows that the principal business of the Tom Tom Cafe was the sale and service of intoxicating liquors, and that the sale and service of meals was an incidental matter, or sideline carried on merely in an attempt to legalize the sale of intoxicating liquors. The trial court was fully justified in concluding that the Board of Equalization, in refusing to revoke the license on the evidence before it, acted arbitrarily and capriciously, and without substantial evidence; and on either of these grounds it was justified in reversing the action of the Board.

At the first hearing before the Board the licensee did not appear. Petitioner testified that the interior of the place was kept dark; that it did not have the appearance of a restaurant; that he had been there at various times of the day; that he had been there at 1:00 p.m. and at 6:00 p.m. and found no one eating; that he had been there twice at 9:00 p.m., that the bar stools were filled and there were about 60 people at tables, all drinking, and but two eating; that there were no odors of cooked food, but were odors of liquor and tobacco; that the reputation of the place was that of a saloon and that it catered to minors. Mrs. Carlson, a registered nurse, testified that she had visited the cafe about 10:30 p.m. on the proceeding May 9th, that the bar was filled and a line waiting, that there were about 100 people present of whom only two were eating and drinking beer and the rest drinking; that those present were quite young and that some were definitely not twenty-one, and one girl appeared to be about sixteen. Mr. Carlson testified to being present with his wife on May 9th and corroborated her testimony; he stated that there were 105 people present and only two eating; that they were there until shortly after midnight; that the people present were in the younger age group. A. E. Esteb testified that he visited the place on May 2nd between 9:00 and 9:30 p.m.; that 24 people were sitting at tables, and 16 at the bar; that only four were being served food, and all the others liquor; that he had observed the place on other occasions and found people drinking but not eating; that they were mostly young people. Mrs. Esteb testified that she noticed several girls there that did not appear to be over eighteen years old. During the examination of Mr. Esteb counsel for the licensee stated:

‘Mr. Lane, I will stipulate that they drink beer, wine, and cocktails in that establishment. It would not be necessary for him to prove it. We will stipulate that is sold there. That is the main purpose of its existence. I think I will stipulate to that.

‘Mr. Lane: Wines and cocktails.

‘Mr. Mier: I would. It is the main purpose. I will stipulate it is served there in connection with food.’ (Italics added.)

Claude Strickland testified that he had stepped into the place on the preceding May 9th about 8:45 p.m.; that there was no one eating, and all were drinking or had empty glasses before them; that it did not look like a restaurant. Roy F. Cottrell stated that he had looked into the place and had seen 12 or 14 people at the bar; that two girls who were definitely under twenty-one years of age entered, passing him and his wife.

At a subsequent hearing the licensee appeared. He testified that about 20% of his gross income (sales) was for foodstuff—dinners or sandwiches, and 80% for liquor; that he had dishes, tableware, etc., to serve 60 people; that he employed two cooks on different shifts regularly, and had an extra cook on Friday, Saturday and Sunday; that he estimated the cost of the equipment in the kitchen and of tables, chairs, etc., at close to $3000, while his equipment for the serving of cocktails or drinks cost about $1000; he included in the equipment for the service of food-stuffs four electric ice boxes, 1 Frigidaire, 1 Kelvinator, 1 General Electric, 1 Coco Cola Electric ‘for ice-water and for Dining Room,’ 1 Hobart Mixer which he said was for the mixing of potatoes, stoves, a steam table, etc.; that of the 2266 square feet of space in the cafe 480 were used mainly for the service of liquor; that he specialized in steaks and chickens; that he had ‘as fine a chef as there is any place in Glendale’; that he had one cook there all the time—two different shifts—and two cooks Friday, Saturday, and Sunday evenings; that the same waiters that wait on people that want liquor serve the food; that the work of serving liquor and serving food is not segregated; that he had one person there at all times to serve liquor, except on Saturday nights when he had two; that he himself generally worked at the bar on Saturday night and that he worked on a relief day here and there; that on one occasion he saw 22 people having dinner in the dining room at the same time; that his gross income from his whole business was a little over $100 per day.

One Albert Studebaker, who said he had been the manager of the cafe for five and one-half months, said that he would substantiate the testimony of McMillan in general as to the number of employees, value of equipment and the areas used for the service of liquors and food; that about 20% of the sales were foodstuffs, and 80% was for liquor; that liquor and food were served both in the dining-room part and in the liquor part; that he tended bar most of the time—three or four nights a week; that a neon sign on the front of the place says ‘Tom Tom Cafe,’ with the word ‘Cocktails' added; that they have entertainment a good deal of the time, consisting of an organ player, a piano player, also a ‘juke’ box; that agents of the Board call ‘maybe once a month.’ One L. E. Patrick, a radio salesman and announcer employed by a Glendale station, testified that the Cafe had been advertising with his station for three or four years, off and on; that he devoted about 60% of his radio announcement to the sale of food, especially the service of chicken dinners and steaks; that in his radio copy he made no mention of the sale of liquors as that is forbidden by the Federal Communications Commission, but that he did state that refreshing drinks could be had there—that ‘You will find your favorite refreshment at the Tom Tom’; that he seldom went to the place; that he had been there on many occasions when the place had been fairly crowded, and thought he could say that he had seen ten tables where people were having food of some kind; that the food was excellent; that entertainment was almost continuous.

A. W. P. Taylor, a liquor control officer, testified that the place would seat about 120 persons; that he had been there about three months previously and McMillan had suggested that he see the kitchen; that he had stopped in on the day before the hearing and found a roast of beef, a baked ham, steaks and chickens ready for frying, also eggs and bacon; that he did not see anyone eating; that he had never been there in the evening.

It seems to me to be obvious from the foregoing testimony that the principal business of the cafe in question was the sale and consumption of intoxicating liquors, and that the sale of food was purely incidental; that the licensee maintained certain facilities for the service of food but that same were maintained merely for the purpose of justifying the carrying on of his main business. to wit, a saloon; and that this is apparent not only from the fact that only 20% of his sales were sales of food, but from the other testimony presented.

However, if the income from food alone is considered, plainly it was insufficient to justify either the asserted investment or the cost of operation as a restaurant. On his own showing receipts for the sale of food averaged about $20 per day, yet in order to earn this income he would have us believe that he was justified in hiring two regular cooks, with an extra one three nights a week, one being ‘the best chef in Glendale.’ We are not told what these cocks were paid, but a court can take judicial notice that at war time salaries $20 per day would scarcely suffice to pay for their services alone, to say nothing of the cost of his alleged specialities, steaks and chickens, and rent lights, entertainment, etc. Even if steak or chicken dinners were served for as little as $1 per person, the income of $20 per day demonstrates that a very limited number of such meals were sold, and it is apparent that if the licensee were not engaged in the sale of liquor he would be unable to operate. The conclusion is inescapable that the cost of maintaining the food end of licensee's business is largely paid from the profits of the liquor business and that the employment of so-called cooks is merely for the purpose of bolstering up a contention that the said cafe is a bona fide eating place and not a subterfuge. Also, the limited service of food shown by the evidence cannot be said to justify the alleged expenditures for equipment set forth above. No need for six or seven ice boxes and refrigerators or for a special mixer for ‘fluffed’ potatoes is shown. The average housewife could serve all the meals this licensee is shown to have served and could have beaten up enough potatoes with an ordinary egg-beater.

In Guillara v. Liquor Control Commission, 121 Conn. 441, 185 A. 398, 399, 105 A.L.R. 563, the court said, regarding the liquor control act of Connecticut limiting the sale of intoxicating liquors to restaurants, that ‘the spirit and plain purpose of the act would be frustrated if mere possession of food and material and facilities for providing meals limited in number and content, if ordered, would render it possible for a person maintaining such a condition of readiness to qualify in respect of the serving of meals, although customers were lacking or so few in number or food requirements, or both, that the sale of liquor under the permit obtained would constitute the principal business and the sale of food a subservient incident thereto, thereby reversing the indicated policy.’ Also see Neubauer v. Liquor Control Commission, 128 Conn. 113, 20 A.2d 669; and In re Rydewski, 121 Pa.Super 171, 183 A. 437.

The language used in the opinions in two cases decided by county courts in the state of Pennsylvania is also applicable. In Re Bailor's License, 42 Pa. Dist. & Co. R., 411, the court said that the Beverage License Law of Pennsylvania, 47 P.S. § 84 et seq., was an act to regulate and restrain the traffic in malt, brewed and other such beverages and not an act to promote their sale; and that ‘If an eating place, without a license, is not a success from a financial point of view, a beverage license is not to be granted to make it pay.’ In re Appeal of Gerba, reported in 7 Fay.L.J., Pa., 219, Gerba applied for a restaurant liquor license, which was denied. The court in conforming the action of the Liquor Control Board said that the method to accomplish the purpose of the legislature was to confine the sale of intoxicating liquors to bona fide restaurants; that it was unable to find that the applicant had met the burden of showing that the place for which the license was applied for would be habitually and principally used for the purpose of providing food for the public. And it added:

‘We cannot come to the legal conclusion that the Legislative intent of promoting public welfare and protecting the health, peace and morals of a community, can be subserved by the granting of a liquor license simply for the purpose of providing the revenue by which an alleged restaurant may be made and kept a profitable venture. * * *

‘The testimony of the male applicant himself * * * together with that of other witnesses called in behalf of appellants, compels the finding of fact that there is no appreciable service of the public in the supply of food in this restaurant. Its maintenance is simply a peg on which to hang a liquor license, by means of which the sale of liquor will necessarily become the principal business of the place and will, in effect, be the establishment of an open saloon. * * *’

In this connection it may be noted that section 1 of the California Alcoholic Beverage Control Act (Act 3796) asserts:

‘This act shall be deemed an exercise of the police powers of the State, for the protection of the safety, welfare, health, peace and morals of the people of the State; to eliminate the evils of unlicensed and unlawful manufacture. selling and disposing of alcoholic beverages, and to promote temperance in the use and consumption of alcoholic beverages; and it is hereby declared that the subject matter of this act involves in the highest degree the economic, social and moral well-being and the safety of the State and of all its people; and all provisions of this act shall be liberally construed for the accomplishments of these purposes.’ (Italics added.)

Appellant says in its brief that ‘if the licensee sold no intoxicating liquors at all but only sold food in the same amount he is now selling, under what rule of law or common sense could it be held that he, in fact, is not engaged in the sale of foods to the public? To come to that conclusion, of necessity, we would have to hold that he is engaged in the sale of food in bad faith or mala fides to the public, and the evidence in this case could not possibly be construed to support such a conclusion.’ It seems to me that the rule of common sense indicates that if the licensee sold only $20 worth of food per day and no liquor he would not be in business at all; and that the evidence, if considered realistically, compels the conclusion arrived at by the trial court that he is not engaged in the sale of food in good faith, but maintains facilities for so doing as a mere subterfuge, and ‘a peg on which to hang a liquor license.’

The trial court found as follows:

‘II. That the evidence before said Board showed (and there was none to the contrary), and this Court finds, that not only was the respondent McMillan operating and conducting a public saloon, within the meaning of the Alcoholic Beverage Control Act of California in which the selling of intoxicating liquors was the principal business and the selling and serving of food was a mere side-line of said public saloon, but the serving of food, such as there was, was a pretense and a sham in order to give to the said business the appearance of a restaurant.

‘III. That the public saloon was conducted and run as such, and had been so conducted and run for more than a year prior to the filing before said Board of Petitioner's complaint against said McMillan, during which time the amount of intoxicating liquors sold was greater than that of the food served in a ratio of more than four to one, the ratio at the time said complaint before said Board was filed.

‘IV. That for the purpose of attracting the public, and particularly young people to the place, it was known and designated as a ‘cafe’ while a large sign with the word ‘cocktails' was displayed in front thereof; and the place was darkened, while loud and raucous sounds pealed forth from a phonograph or from musical instruments manipulated by men elevated on a platform, and at the same time men and women of varying ages, many being young and some in their teens, sat on stools at the bar or at tables, drinking intoxicating liquors.

‘V. That the defendant said Board and its members acted capriciously, arbitrarily, without evidence, and without right in denying the petition of said petitioner to cancel the liquor license of said McMillan filed with it.’

The evidence fully sustains such findings; and whether it be said that that court's conclusion that the Board erred in its refusal to cancel McMillan's license be based upon the ground that it acted capriciously and arbitrarily, or on the ground that the evidence does not support its conclusion, in my opinion that court did not exceed its jurisdiction nor act in excess of its powers.

It is conceded by appellant Board that the proceeding by way of mandamus was proper. In fact, the record shows that while the original complaint was based upon section 46 of the Alcoholic Beverage Control Act, that by stipulation in was amended to constitute a petition for a writ of mandate. It also shows that the record before the Board was introduced in evidence before the court by petitioner without objection; and appellant says in its opening brief that the sole question before this court is whether the licensee was operating a bona fide restaurant, cafe or public eating place. To be sure, in its closing brief, filed by a different deputy attorney general, other contentions are raised.

Only one of these contentions—that Covert was not a person beneficially interested and therefore was not authorized to prosecute this proceeding—appears to have been raised in the trial court. It was raised by demurrer to the amended petition and overruled on the authority of section 40 of the Alcoholic Beverage Control Act which provides that complaint may be made to the Board by any person, and on the authority of such cases as Conn v. City Council, 17 Cal.App. 705, 710, 711, 121 P. 714, 719; Felt v. Waughop, 193 Cal. 498, 225 P. 862; High's Extraordinary Legal Remedies, 3rd Ed., secs. 431, 433. Section 431 provides:

‘As regards the degree of interest on the part of the relator requisite to make him a proper party on whose information the proceedings may be instituted, a distinction is taken between cases where the extraordinary aid of a mandamus is invoked merely for the purpose of enforcing or protecting a private right, unconnected with the public interest, and cases where the purpose of the application is the enforcement of a purely public right, where the people at large are the real party in interest. And while the authorities are somewhat conflicting, yet the decided weight of authority supports the proposition that, when the relief is sought merely for the protection of private rights, the relator must show some personal or special interest in the subject-matter, since he is regarded as the real party in interest and his right must clearly appear. Upon the other hand, when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws.’

Another contention is that the trial court erred in reconsidering the evidence and in making independent findings of fact. Appellant states that ‘the exclusive province and only power of the court was the determination that appellant's determination was supported by substantial evidence.’ No authorities are cited in support of this statement. In Friedland v. Superior Court, 67 Cal.App.2d 619, 155 P.2d 90, this court had occasion to consider the power of courts to review in mandamus proceedings, the action of the Board of Equalization in such cases, and we there stated, 67 Cal.App.2d at page 626, 155 P.2d at page 94:

‘The Supreme Court has held in recent decisions that in mandamus proceedings to review the decisions of state-wide administrative agencies such as the State Board of Equalization, a petitioner is entitled to present independent evidence, and to have, in effect, a trial de novo. Drummey v. State Board of Funeral Directors, 13 Cal.2d 75 [87 P.2d 848]: Laisne v. California State Board of Optometry, 19 Cal.2d 831, 123 P.2d 457; Dare v. Board of Medical Examiners, 21 Cal.2d 790, 136 P.2d 304.

‘In the Drummey and Laisne cases it is held that in a mandamus proceeding the superior court has the power to exercise an independent judgment on all of the material facts relative to the issue of whether petitioner has violated the statutes as charged before the board, and that in the exercise of such judgment it is not confined to the record before the board, as otherwise it would not be exercising an independent judgment; that in such proceeding the superior court has a right to hear independent evidence and hold, in effect, a trial de novo. And while in the Dare case the scope of such a hearing as is held proper in the Drummey and Laisne cases may be somewhat delimited, the right and duty of a trial court to hold, in effect, a trial de novo of the issues before it insofar as the taking of independent evidence is concerned, is reaffirmed.’

Inasmuch as the Supreme Court denied a petition for a hearing in that case we are justified in assuming that our conclusion was correct; and it is applicable here, though in this case no independent evidence was adduced, and the trial court based its decision upon the record before the Board. Furthermore, if findings of fact are superfluous they may be disregarded, as the power of the court to determine that appellant's decision was not supported by substantial evidence is conceded by appellant; and the court so determined.

Appellant also asserts in its closing brief that section 46 of the Alcoholic Beverage Control Act is inapplicable and that anyhow it is unconstitutional. But no attempt to apply that section was made by the trial court. The record shows, as hereinbefore stated, that while the original petition filed in the case was based upon that section, by stipulation it was amended so as to constitute a petition for writ of mandate; and the action then proceeded, without controversy, as such. There was no trial de novo. The validity or invalidity of section 46 is therefore not an issue in this proceeding. It is pertinent only as an expression of legislative opinion that decisions of the Board are and should be subject to judicial review. Also see Empire Vintage Co. v. Collins, 40 Cal.App.2d 612, 618, 105 P.2d 391, 394 (hearing by the Supreme Court denied), where the court said regarding findings of the Board of Equalization: ‘That its findings were not conclusive is true. Power to review said findings is expressly granted to any court of competent jurisdiction. (Sec. 46.)’

Another contention raised in appellant's closing brief is that the trial court sought to exercise the power and discretion vested in appellant, in that it ordered that a writ of mandate issue commanding the Board to ‘revoke, cancel and annul’ the license issued to McMillan, and that what it should have done was to remit the matter to the board ‘for action not inconsistent with the court's conclusions.’ No such contention was made in the trial court, and in view of the fact that the trial court's judgment conformed to the relief asked for in the petition for the writ and the record shows no application for a different order, even if this contention had merit it should not be considered when raised for the first time on appeal.

It is said in 2 Cal.Jur., sec. 68, p. 237:

‘It is well settled that the theory upon which a case is tried in the court below must be adhered to on appeal. To permit a party who has tried his case wholly or in part on a certain theory, which theory was acted on by the trial court, to change his position and adopt a different theory on appeal, would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.’

Also, sec. 74, p. 248:

‘It is a well-settled rule that a party cannot urge, for the first time on appeal, objections which could have been obviated if made in the court below.’

Also see Ernst v. Searle, 218 Cal. 233, 240, 241, 22 P.2d 715; Gibson Properties Co. v. City of Oakland, 12 Cal.2d 291, 299, 83 P.2d 942; Marra v. AEtna Construction Co., 15 Cal.2d 375, 379, 101 P.2d 490; LaRue v. Board of Trustees, 40 Cal.App.2d 287, 295, 296, 104 P.2d 689; Pappadatos v. Market St. Bldg. Corporation, 130 Cal.App. 62, 65, 66, 19 P.2d 517; Egilbert v. Hall, 44 Cal.App.2d 305, 311, 112 P.2d 291.

The final contention of appellant is that its determinations of fact are final and conclusive. But it concedes in its brief that its determinations are ‘subject to judicial review’ as to questions of law one of which is ‘whether appellant's deermination of the ultimate fact that the license was maintaining a bona fide restaurant is supported by substantial evidence.’ The trial court said that it was not so supported, and to my mind it was correct. As matter of fact the findings of the trial court are not in conflict with any findings of fact made by the Board, for the latter made no such findings. Its representative, in his purported findings, merely set forth briefly some of the testimony of some of the witnesses, and then stated: ‘In my opinion the evidence produced in support of the compliant does not prove a violation. If the Board considers that a food business totaling only 20% of the sales is noncompliance with the Alcoholic Beverage Control Act and the Constitution, then the licenses should be revoked or suspended indefinitely.’ All that the Board thereafter did was to order that the complaint be dismissed.

As for appellant's argument that the establishment is not a public saloon as matter of law, it states in its brief that ‘the establishment is a bona fide restaurant in fact. A fortiori it must be found to be a bona fide restaurant as matter of law.’ But, as above stated, the Board did not find that it was a bona fide restaurant in fact, unless such a finding is to be inferred from its refusal to cancel the license; and if Hammond v. McDonald, supra, is the law of this state, as I shall assume it to be until overruled by the Supreme Court, the establishment cannot be said to be a bona fide restaurant as matter of either fact or law.

The judgment should be affirmed.

PEEK, Justice.

THOMPSON, J., concurs.