KOEHN v. E. L. Ledger, d/b/a Ledger's Distributing Company, Respondent and Amicus Curiae.*

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

M. M. KOEHN, Petitioner and Respondent, v. STATE BOARD OF EQUALIZATION, DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Russell S. Munro, Director, Respondents, Alcoholic Beverage Control Appeals Board, Ralph McGill, Don Bonar, and Russell Mather, Members, Respondents and Appellants, E. L. Ledger, d/b/a Ledger's Distributing Company, Respondent and Amicus Curiae.*

No. 17256.

Decided: April 22, 1957

Edsel W. Haws, Senior Counsel Alcoholic Beverage Control Bd., Sacramento, for appellant. Albert G. Evans, San Francisco, for respondent M. M. Koehn. Edmund G. Brown, Atty. Gen., Charles A. Barrett, Dep. Atty. Gen., for respondents State Board of Equalization. Willard S. Johnston, George H. Johnston, Benjamin H. Parkinson, Jr., Johnston Johnston, San Francisco, for Safeway Stores, Inc. Dodge & Evans, Robert P. Brorby, Oakland, for E. L. Ledger, dba Ledger's Distributing Co.

This motion to dismiss appeal raises solely the interesting question: Is the Alcoholic Beverage Control Appeals Board a party ‘aggrieved’ by the superior court judgment reversing the Appeals Board's ruling in this proceeding, and entitled to appeal from said judgment?


After the State Board of Equalization indefinitely suspended the wholesale beer and wine license of E. L. Ledger, he filed with said Appeals Board his appeal from the order of suspension. Said Appeals Board held that the Board of Equalization did not have jurisdiction to make said order of suspension and set it aside. Koehn, who was the complainant in the proceeding before the State Board of Equalization, then petitioned the superior court for a writ of mandate to compel said Appeals Board to vacate its decision. Answers were filed by the Appeals Board, the Board of Equalization, the Department of Alcoholic Beverage Control,1 and Ledger. The court ordered the Appeals Board to set aside and vacate its order and to determine any undecided questions. Said Appeals Board appealed from that order. No other appeal was filed. Ledger has filed an amicus curiae brief in support of the Appeals Board's position, both on the merits and on this motion to dismiss.

Party aggrieved.

Only a ‘party aggrieved’ may appeal. Code Civ.Proc. § 938; Nicholas v. Nicholas, 110 Cal.App.2d 349, 353, 242 P.2d 679. The order state agencies involved contend that since the Appeals Board performs quasi-judicial functions it is in the same position that the superior court would be in if it were to attempt to appeal to the Supreme Court for hearing of a decision of the District Court of Appeal on an appeal from the superior court's ruling on a petition for writ of mandate.

Matter of De Lucca, 1905, 146 Cal. 110, 79 P. 853, seems to support this view. There it was held that a judicial tribunal whose acts are assailed either in certiorari or on appeal has no interest in the matter and that the real party in interest is the one in whose favor the act sought to be reviewed was done. The court referred to I.X.L. Lime Co. v. Superior Court, 143 Cal. 170, 175, 76 P. 973, holding to the same effect. However, in the later case of Simpson v. Police Court of Riverside, 1911, 160 Cal. 530, 117 P. 553, a contrary holding was made. There an action on a promissory note was brought in the police court. That court overruled a demurrer to the complaint which claimed that the court had no jurisdiction of the subject matter of the action. The superior court then issued a writ of prohibition, prohibiting the police court from proceeding in the case. Thereupon the police court appealed to the Supreme Court from the superior court order granting the writ. The Supreme Court, without considering the De Lucca and I.X.L. Lime Co. cases, or authorities elsewhere, held that although the police court was not a party to the civil action it did have an interest in the action of the superior court in depriving it of jurisdiction and a right to appeal that court's action. Thus, in California we have authorities holding both ways on the subject, two holding that a judicial body may not appeal, and one holding that it may. The general rule throughout the country seems to be that a court or board exercising judicial or quasi-judicial functions does not have any legal interest in maintaining its decisions, and cannot appeal from an order or judgment of a court reversing the proceedings. 4 C.J.S. Appeal and Error § 205, p. 389; Miles v. McKinney, 174 Md. 551, 199 A. 540, 117 A.L.R. 207, 216. However, statutes have been passed in one or two jurisdictions permitting such appeals. 4 C.J.S. p. 389.

The question here seems to be one of construction of our Constitution and statutes to determine whether the right of appeal has been granted the Appeals Board by implication. Admittedly there is no express grant. The Department of Alcoholic Beverage Control and the Appeals Board were created by amendment to article XX, section 22, Constitution. The department, headed by its director, was given the exclusive power to license the manufacture, importation and sale of alcoholic beverages in this state, to collect fees or taxes on account thereof, and to deny, suspend or revoke liquor licenses. The Appeals Board was given the function of reviewing the decisions of the department. It is provided that on such review the board shall not receive evidence, but is limited to certain questions. The board under certain circumstances may remand the matter to the department for further hearing and recommendation. Otherwise it must either affirm or reverse the decision of the department. The Constitution then provides: ‘Orders of the board shall be subject to judicial review upon petition of the director or any party aggrieved by such order.’ Thus, while the Constitution does not expressly grant the right of appeal to the Appeals Board, it in nowise restricts it. The set-up concerning liquor control is rather unusual, in that there are apparently two independent agencies created, one, the department, which as to the matter with which we are concerned, namely, the suspension or recovation of liquor licenses, acts as the administrative trial court, and two, the Appeals Board, which, in effect, is the administrative appellate court. In all other constitutional statewide agencies the decision of the department given the power to try offenses and impose discipline is not reviewable by another administrative agency but only by the courts. The Unemployment Insurance Code sets up a system somewhat comparable to the liquor control system, with an appeals board as a part of it. This system is a legislative and not a constitutional one. Here there is no provision either in the Constitution or in the enabling legislation which authorizes direct court review of the decisions of the department. It is only after decision by the Appeals Board that the decisions of the department are reviewable by the courts. This brings us to the legislation implementing the constitutional provisions.2 Section 23091, Business and Professions Code, provides: ‘Final orders of the board shall be subject to judicial review as prescribed by law.’ Section 23077, Business and Professions Code, provides that the Appeals Board shall exercise such powers as are vested in it by section 22, article XX, Constitution, ‘and may adopt such rules pertaining to appeals and other matters within its jurisdiction as may be required. The board and its duly authorized representatives in the performance of its duties under this chapter shall have the powers of a head of a department as set forth in Sections 11180 to 11190, inclusive, of the Government Code.’ (Emphasis added.) Section 11180, Government Code, provides: ‘The head of each department may make investigations and prosecute actions concerning: (a) All matters relating to the business activities and subjects under the jurisdiction of the department * * *.’ (Emphasis added.)

Respondents concede that it was the duty of the Appeals Board to file in the superior court an answer and attach to it a complete record of the proceedings had before it. Then, say they, the board is a nominal party only and cannot be aggrieved by any action of the superior court in the mandate proceeding. While not exactly analogous the situation in mandate proceedings brought against other statewide boards and commissions is of some value in determining the real position of an administrative board in the mandate proceeding. Take for example the Industrial Accident Commission. Section 111, Labor Code, states: ‘The Industrial Accident Commission * * * shall exercise all judicial powers * * *.’ Thus in this respect it is similar to the Appeals Board. On a review of a ruling of the Industrial Accident Commission by the District Court of Appeal, it is the duty of the Industrial Accident Commission to appear and present its record. It has never been contended that because of the judicial character of the commission, it had no power to apply to the Supreme Court for a hearing after an adverse decision in the District Court of Appeal. State boards and commissions, in ruling upon matters which are reviewable by writ of mandate as provided in section 1094.5, Code of Civil Procedure, are acting in a quasi-judicial capacity. It has never been contended that such boards and commissions, because of that capacity, had no right to appeal from an adverse decision of the superior court in such mandate proceedings. If the board or commission under such circumstances is a ‘party aggrieved’ permitting it to appeal, we can see no reason why the Appeals Board here is not likewise a party aggrieved.

The motion to dismiss is denied.


1.  By this time, the Department of Alcoholic Beverage Control had succeeded the State Board of Equalization.

2.  It appears in sections 23049 through 26004, Business and Professions Code.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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