LAISNE v. CALIFORNIA STATE BOARD OF OPTOMETRY (1940)

Respondents have filed a petition for rehearing in which they call particular attention to our quotation from Nider v. City Commission of City of Fresno, Cal.App., 97 P.2d 293. They urge that this quotation, if permitted to stand in its present form, would establish the rule that only by an action in the courts could licenses issued by a board having statewide authority be revoked; that the courts must provide for notice of hearings before such board; that if this be true it would necessarily follow that such boards could have no authority to revoke such licenses independent of actions in the courts.

The quotation, when lifted from its context, might possibly be given such a meaning, but when read in connection with the balance of the paragraph and the opinion in which it appears, does not support any such conclusion.

In that paragraph we were speaking only of those cases in which a license had been revoked by a board having statewide jurisdiction and in which the licensee had asked a review of such order by the board in a mandamus proceeding filed in the courts. The statements in the quotation should be understood as applying only to a case in which a licensee applied to the courts for relief.

It is settled by Drummey v. State Board of Funeral Directors and Embalmers, 13 Cal.2d 75, at pages 80, 81, 87 P.2d 848, at page 853, that where, as here, the law under which a board is proceeding requires such board having statewide authority to give an accused licensee notice of charges against him, and further requires that board to conduct a hearing on those charges that it may thereafter take action, and, if the notice is given, the hearing is held, and if the evidence warrants such action, it may suspend or revoke the license of the licensee. It should follow that the action of the board should be considered final and binding on the licensee if he does not proceed to have the sufficiency of the proceedings before the board and its order tested in the courts in a mandamus proceeding.

The Drummey case makes it equally clear that if the licensee applies to the courts for relief the proceedings before and the order of the board are not binding on the reviewing court. It was there said:

“The state constitutional provision discussed, supra, prohibits the conferring of judicial power on such administrative boards. If it should be held that the board's action in cancelling or suspending an existing license is binding on the courts, if such action is predicated on conflicting evidence, we would be necessarily holding that such board is exercising at least quasijudicial powers. It is the essence of judicial action that finality is given to findings based on conflicting evidence. If the statute be so construed it would violate the state Constitution. Moreover, for a purely administrative board to deprive a person of an existing valuable privilege without the opportunity of having the finality of such action passed upon by a court of law, would probably violate the due process clause of the federal Constitution. Although there is some confusion in the federal cases, the more recent decisions by the United States Supreme Court have indicated that if binding fact-finding power is conferred on purely administrative boards, and if the courts in reviewing the administrative board's actions do not exercise an independent judgment on the facts as well as on the law, then the party adversely affected, at least where constitutional rights are involved, has been deprived of due process. *

“In view of these principles, it necessary follows that the court to which the application for mandate is made to secure the restoration of a professional license must exercise an independent judgment on the facts.”

The reasoning in the Drummey and other cases cited in our opinion have led us to the following conclusions: If, after proceeding according to law, and after giving an accused licensee notice of a hearing and actually holding a hearing, a board having statewide authority issues its order revoking the license of a licensee, such order possesses finality unless the licensee seeks relief in the courts. If, however, the licensee seeks to have his license restored by appropriate action in mandamus in the courts, then the question must be litigated and a trial de novo must be had. Thus the due process clauses of the state and federal Constitutions are given full force and effect. Const.Cal. Art. 1, § 13; Const.U.S.Amend. 14.

The petition for rehearing is denied.

PER CURIAM.