PESCE v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL

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

Gaston PESCE, Petitioner and Respondent, 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. 17688.

Decided: March 18, 1958

Edmund G. Brown, Atty. Gen., Charles A. Barrett, Wiley W. Manuel, Deputy Attys. Gen., for appellants. Theodore Golden, Robert N. Stefan, J. Bruce Fratis, Oakland, for respondent.

The Department of Alcoholic Beverage Control, its director, the Alcoholic Beverage Control Appeals Board and its members appeal from a judgment of the Superior Court of Alameda County issuing a peremptory writ of mandate ordering said appeals board and its members to set aside their decision dismissing the appeal to that board of petitioner Pesce from an order and decision of said department revoking petitioner's on-sale liquor license and to proceed to hear petitioner's said appeal. The sole question raised is whether under section 23081, Business and Professions Code, an appeal is filed when notice of appeal is deposited in a United States post office or when actually received by the department.

Time of Filing.

Section 23081 provides: ‘Within 40 days after the decision of the department is delivered or mailed to the parties, any party aggrieved by a final decision of the department may appeal to the board from such decision. The appeal shall be in writing and shall state the grounds upon which a review is sought. A copy of the appeal shal be mailed by the appellant to each party who appeared in the proceeding before the department, including the department which shall thereafter be treated in all respects as a party to the appeal.’

Concededly petitioner mailed his notice of appeal properly addressed, in the United States Post Office at Oakland on the 40th day after the date of mailing to him the decision of the department. It was received and filed by the appeals board at Sacramento on the 41st day. Claiming that it was filed too late, the board dismissed petitioner's appeal.

Section 23081 does not provide the manner in which one effects an appeal thereunder. It merely states that the aggrieved party ‘may appeal to the board’ in writing stating the grounds, and shall send copies of the appeal to the department and the parties to the proceeding. Petitioner contends that the section should be construed as considering the appeal effected when notice thereof is mailed, regardless of when it is actually received and filed. Appellants contend that the section should be construed as the department has administratively construed it, namely, that the appeal is effected only when it is actually filed at the board's principal office which has been designated as Sacramento.

It is not a question of what this court might consider to be the best method of effecting the appeal, but what we can determine the legislative intention to have been. In this connection it is significant that the Legislature in dealing with the manner of giving notice of any act of the department (including notice of its decision in disciplinary matters) provided that the notice might be given either by personal service or by mail. ‘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. It would seem that had the Legislature intended that appeals were to take effect at the time of mailing notice of appeal rather than of filing, section 23081 would have said so, or at least have some provision similar to the above quoted portion of section 25760. See Van De Veer v. Department of Alcoholic etc. Control, 155 Cal.App.2d 187, 318 P.2d 686.

Moreover, making the filing date the effective one makes for a more uniform operation of the section. Thus the department would know that on the expiration of the 40th day it could forthwith put into operation the disciplinary order, without having to wait several days to find out whether a notice of appeal had been mailed from some distant point or delayed in the mails.1

To construe section 23081 as determining an appeal to be effective when mailed would require us to read into the section something which is not there, namely, (1) that an appeal may be taken either by mail or by filing with the board, and (2) that depositing the notice of appeal in a post office is effecting the appeal.

We have in mind that in Hollywood Circle v. Department of Alcoholic Control, 1957, 153 Cal.App.2d 523, 314 P.2d 1007, in which the notice of appeal was held to be filed too late under any interpretation of section 23081, the court said ‘[i]n passing’ (153 Cal.App.2d at page 526, 314 P.2d at page 1009) that it seemed to the court that the effecitve date should be that of mailing rather than of filing. However, the statement is purely dicta and made without discussing the exact language of the section involved. The court did state that the question of the effective date of the appeal ‘is a matter of legislative concern primarily * * *.’ (153 Cal.App.2d at page 526, 314 P.2d at page 1009.)

Moreover, the same court, in a later decision, Van De Veer v. Department of Alcoholic etc. Control, supra, 155 Cal.App.2d 817, 318 P.2d 686, flatly held that a notice of appeal from the decision of the department mailed 39 days after the department mailed its decision to the licensee but not received by the appeals board until 41 days therefrom, was filed too late, and upheld the decision of the appeals board in dismissing such appeal. The court quoted from the Hollywood Circle case (155 Cal.App.2d at page 820, 318 P.2d at page 688): “But it is the policy of our law that time limits for filing notices of appeal in all legal proceedings must be complied with literally and exactly. This is generally held to be a jurisdictional prerequisite. Cf., In re Estate of Hanley, 23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250 * * *; 3 Cal.Jur.2d 653. * * *” It stated (155 Cal.App.2d at page 821, 318 P.2d at page 689): ‘* * * the Supreme Court has held that the mailing of a notice of appeal is not the equivalent of constructive filing’ and held that the Legislature meant to provide that the time to appeal would start from the time the decision was mailed by the department, and that the notice of appeal must be filed with the appeals board within 40 days thereafter. It further quoted from the Hollywood case (155 Cal.App.2d at page 821, 318 P.2d at page 688): “Section 1013 of the Code of Civil Procedure does not affect the time specified in section 23081 of the Business and Professions Code.” The fact that the Legislature in section 25760 of the Business and Professions Code provides that service of notice mailed by the department shall be made in the manner prescribed by section 1013, Code of Civil Procedure, and that no similar provision as to notices of appeal by licensees appears anywhere, supports the above conclusion and the further statement in the Hollywood Circle case, 153 Cal.App.2d 527, 314 P.2d at page 1010: ‘There appears to be no intent by the people in enacting current liquor control laws in their Constitution, nor by the legislature in implementing them, to extend in any manner the time for filing a notice of appeal specified in section 23081 of the Business and Professions Code.’

Section 25760, Business and Professions Code, provides: ‘Notice of any act of the department required by this division to be given may be signed and given by the director or an authorized employee of the department and 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.’ (Emphasis added.) Section 1013, Code of Civil Procedure, provides the manner of mailing in case of service by mail, and then states: ‘The service is complete at the time of the deposit, but if, within a given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done, is extended one day, together with one day additional for every full 100 miles distance between the place of deposit and the place of address, if served by different post offices, but such extension shall not exceed thirty days in all.’ Petitioner contends that by referring to section 1013, Code of Civil Procedure, in section 25760, Business and Professions Code, the Legislature intended to extend the 40 day period for appeal set forth in section 23081, Business and Professions Code. However, as shown by the above emphasized portion of section 25760, the section is dealing only with the manner of giving notices of the acts of the department. Had the Legislature not been restricting the application of section 1013, Code of Civil Procedure, to the manner of giving department notices, and had it intended that the balance of that section should apply, there would have been no reason for including in section 25760 its last sentence: ‘In case of service by mail, the service is complete at the time of deposit in the United States Post Office,’ for section 1013 states: ‘The service is complete at the time of the deposit * * *.’

In connection with appeals from the superior court under section 939 and 940, Code of Civil Procedure, which, prior to the adoption of the Rules on Appeal, provided that an appeal was taken by filing the notice of appeal with the clerk of the court, it was held in Estes v. Chimes, 40 Cal.App.2d 41, 42, 104 P.2d 74, that the effective date was not the date of mailing the notice but the actual date of filing. See also People v. Martiz, 130 Cal.App.2d 602, 604, 279 P.2d 568, and People v. Slobodion, 30 Cal.2d 367, 181 P.2d 868, holding that the mere depositing in the mail of a notice of appeal in a criminal case is not a filing of the appeal.

In Lewis-Hall Iron Works v. Blair, 57 App.D.C. 364, 23 F.2d 972, 974, certiorari denied 277 U.S. 592, 48 S.Ct. 529, 72 L.Ed. 1004, it was held that the mere depositing in the mail was not the filing of an appeal where under the then provisions of the Internal Revenue Code a taxpayer was given 60 days from the mailing to him of a notice of deficiency in which to appeal. See also Poynor v. Commissioner of Internal Revenue, 5 Cir., 81 F.2d 521, 522.

As before stated, section 25760, Business and Professions Code, provides that the notice of an act of the department may be served by mail, in which event deposit in the post office constitutes service. Petitioner argues from that fact that a similar provision should be read into section 23081 concerning notices of appeal given by an aggrieved party. In the Poynor case, supra, there was a provision in the tax code (26 U.S.C.A. § 613) to the effect that the mailing ‘of any pleading, decision, order, notice, or process in respect of proceedings before the Board shall be held sufficient service of such pleading, decision, order, notice, or process.’ The court held that such a general section did not purport to deal with appeals to the Board of Tax Appeals and that mailing did not constitute filing where the appeal section required the appeal to be filed within 90 days of the mailing of the notice of deficiency by the tax commissioner. Poll v. City of Plainfield, 25 N.J. Misc. 325, 53 A.2d 366, 367, states that the prevailing view in jurisdictions throughout the country is that in the absence of an express statutory declaration, mailing is not filing.

The judgment is reversed.

FOOTNOTES

1.  Business and Professions Code, section 23082 provides that no decision of the department shall become effective during the period in which an appeal may be ‘filed.’

BRAY, Justice.

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