SILVA v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL

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

Manuel SILVA and Pauline Hatfield, Petitioners and Respondents, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Russell S. Munro, Director of Alcoholic Beverage Control, Alcoholic Beverage Control Appeals Board, Ralph J. McGill, as Chairman of said Alcoholic Beverage Control Appeals Board, and Donald H. Bonar and Coleman E. Stewart, as members thereof, Respondents and Appellants.*

Civ. 17983.

Decided: August 18, 1958

Edmund G. Brown, Atty. Gen., Wiley Manuel, Dep. Atty. Gen., San Francisco, for appellants. Golden & Stefan, Theodore Golden, Robert N. Stefan, Oakland, J. Bruce Fratis, San Francisco, for respondent.

The principal question is whether or not the petitioning licensees effected a timely filing with the respondent department of their notices of appeal from two decisions of revocation of licenses. On October 18, 1956, the department mailed copies of the decisions to the licenses. On November 28 the licensees filed their notices of appeal with the department and the Appeals Board; i. e., on the forty-first day after the mailing of the notices of decision. The Appeals Board dismissed these appeals upon the ground that they were filed too late.

The trial court held otherwise, upon the ground that section 1013 of the Code of Civil Procedure applies and extends the period by one day, the place of mailing and the place of receipt being 84 miles apart.

The applicable statute declares that ‘[w]ithin 40 days after the decision * * * is delivered or mailed to the parties, any party aggrieved * * * may appeal * * *’ Bus. and Prof.Code, § 23081. ‘Notice of any act of the department required * * * to be given * * * may be made personally or by mail. If made by mail, service shall be made in the manner prescribed by Section 1013 of the Code of Civil Procedure. In case of service by mail, the service is complete at the time of deposit in the United States Post Office.’ Bus. and Prof.Code, § 25760, emphasis added.

As to the manner in which service by mail is required to be made, section 1013 prescribes deposit ‘in the United States post office, or a mail box, sub-post office, substantion, or mail chute, or other like facility * * *, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at his office address as last given by him * * * otherwise at his place of residence.’

Section 1013 then proceeds to deal with the question: When is service complete? In that regard it says, as does section 25760: ‘The service is complete at the time of the deposit’ but differs from section 25760 by extending the time limited for the doing of an act thereafter, according to the number of miles between the place of deposit and the place of receipt of the mailed notice. This latter, we think, has nothing to do with the ‘manner’ of giving notice by mail, emphasized by the very fact that the section which adopts by reference the manner prescribed by section 1013, expressly declared twhat ‘service is complete at the time of the deposit’ (without extending the time otherwise limited for the doing of an act thereafter). Why such a declaration if its subject matter was already covered by the reference to the ‘manner prescribed by Section 1013’? See Hollywood Circle v. Department of Alcoholic Beverage Control, 153 Cal.App.2d 523, 526–527, 314 P.2d 1007; Van De Veer v. Department of Alcoholic Beverage Control, 155 Cal.App.2d 817, 820–822, 318 P.2d 686; Anderson v. Department of Alcoholic Beverage Control, 159 Cal.App.2d 413, 324 P.2d 24.

We conclude that the notices of appeal were not filed in time. It is, therefore, unnecessary to consider other questions discussed by the parties.

The judgment appealed from is reversed with directions to discharge the alternative writ of mandate and deny the application for a peremptory writ of mandate.

FRED B. WOOD, Justice.

PETERS, P. J., and BRAY, J., concur.

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