DRUMMEY v. STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS (1938)

This is an appeal by the State Board of Funeral Directors and Embalmers and the members thereof from a judgment of the trial court ordering that a peremptory writ of mandamus issue commanding said board to dismiss certain proceedings against petitioners and to admit petitioners to the use and enjoyment of their respective licenses. Another appeal was taken by petitioners from certain orders of the trial court with respect to their petitions for a writ of certiorari and a writ of prohibition. The appeal of petitioners may be dismissed, as they have expressly abandoned said appeal. For the sake of clarity and brevity we will refer to parties as the petitioners and the board throughout this discussion.

Petitioner William P. Drummey was a duly licensed embalmer. Petitioner Aubrey Wilson was a duly licensed funeral director doing business under the name of Wilson & Kratzer. Petitioner Aubrey Wilson was also a duly licensed embalmer. Their licenses had been issued under the provisions of the Funeral Directors and Embalmers Law. Deering's Gen.Laws 1931, Act 2318, as amended. Three separate complaints were filed with the board charging petitioners with unprofessional conduct as defined in said act and praying for the suspension or revocation of their respective licenses. Each complaint contained several counts in which the unprofessional conduct was alleged to consist of solicitation under section 15 of said act, as amended by St.1933, p. 771. Said section provides in part: “The board shall also have the power to suspend or revoke licenses after proper hearing and notice to the licensee, upon such licensee being found guilty of any of the following acts or omissions: * * * 2. Unprofessional conduct which is hereby defined to include: * * * (c) Solicitation of human dead bodies by the licensee, his agents, assistants or employees, whether such solicitation occurs after death or while death is impending; provided, this shall not be deemed to prohibit general advertising.” After notice to petitioners, a hearing was had on all three complaints. Petitioners appeared at the hearing and, while they were not represented by counsel, they were apprised of their right to be so represented. They expressed no desire to exercise that right but proceeded to act for themselves and to cross–examine the witnessses. At the conclusion of the hearing, they were found guilty of several of the counts set forth in the respective complaints. An order based upon written findings was entered as to each complaint. The embalmer's license of each of petitioners was suspended for one year. The funeral director's license of petitioner Wilson was suspended for one year with a proviso that, after ten days of said suspension, the licensee should be restored to good standing but should be immediately suspended for the remaining portion of the year upon the violation within two years of any of the provisions of the act.

Thereafter petitioner Drummey filed a petition for a writ of review seeking to review the proceedings whereby his embalmer's license was suspended. Petitioner Wilson filed a petition seeking to review the proceedings whereby his embalmer's license and also the funeral director's license of Wilson & Kratzer were suspended. The writs were issued and return was made. During the pendency of the proceedings, the Supreme Court handed down its decision in Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557, 59 P.2d 119. The proceedings having been consolidated for hearing in the trial court, petitioners filed an amendment to their petitions seeking to invoke the remedies of either review, prohibition or mandamus. Demurrers were interposed to the petition as thus amended. The trial court sustained the demurrers to the petitions for writs of review (Standard Oil Co. v. State Board of Equalization, supra) and to the petitions for writs of prohibition (Whitten v. California State Board of Optometry, 8 Cal.2d 444, 65 P.2d 1296), but overruled the demurrers to the petitions for writs of mandamus and ordered that an alternative writ issue. Upon the subsequent hearing, the matter was submitted upon the record on file and the trial court ordered that a peremptory writ of mandamus issue as above indicated.

As findings were waived and none were made, we must look to the allegations of the petitions and to the points made in petitioners' briefs in an effort to ascertain the theory upon which the trial court ordered the issuance of the writ. In their petitions, the attack was directed both at the act itself and at the proceedings had thereunder. The same attack is made in the briefs on file.

With respect to the act, petitioners claim that said subdivision (c) relating to solicitation is unconstitutional. It is contended that (1) it is uncertain, vague, and indefinite as to language and purpose and (2) it is arbitrary and has no reasonable relation to the protection of public health, safety, or welfare. We find no merit in these contentions. We start with the settled rules that all presumptions are in favor of the constitutionality of the act; that all doubts are to be resolved in favor of and not against its validity; and that the conflict with the Constitution must be clear before it will be declared invalid. 5 Cal.Jur. 628, and cases cited. We find nothing uncertain, vague, or indefinite in the language or purpose of the act relating to the solicitation of human dead bodies. The main purpose of the act is expressed in the title which reads in part, “An act regulating funeral directors and embalmers and the transportation of and traffic in human dead bodies.” It provides for the licensing of funeral directors and embalmers and for the suspension of such licenses when the licensee is found guilty of unprofessional conduct including the “solicitation of human dead bodies by the licensee, his agents, assistants or employees, whether such solicitation occurs after death or while death is impending; providing that this shall not be deemed to prohibit general advertising.” The purpose of this portion of the act is obvious, and the language is sufficiently certain to carry out such purpose. It is not aimed at preventing general advertising, but it is aimed at preventing the direct solicitation of particular dead human bodies by overzealous funeral directors and embalmers in the conduct of their business. It covers the period while death is impending as well as the period after death. Any person of ordinary intelligence may readily ascertain the meaning of said provision, and there appears to be no difficulty in giving the language a reasonable and practical construction. As was said in County of Tulare v. City of Dinuba, 188 Cal. 664, at page 677, 206 P. 983, 988: “A statute cannot be held void for uncertainty, if any reasonable and practical construction can be given to its language. Mere difficulty in ascertaining its meaning, or the fact that it is susceptible of different interpretations will not render it nugatory. Doubts as to its construction will not justify us in disregarding it.” See, also, Pacific Coast Dairy v. Police Court, 214 Cal. 668, 8 P.2d 140, 80 A.L.R. 1217.

Nor do we find anything arbitrary about said provision of the act. On the contrary, it appears to be a reasonable regulation bearing definite relation to the public welfare. The business of both funeral directors and embalmers is subject to regulation under the police power, and we are of the opinion that the Legislature acted within its province in providing for the protection of the public from the annoyance of direct solicitation of the bodies of their loved ones during the time of anxiety and sorrow. Prata Undertaking Co. v. State Board of E. & F. Directing, 55 R.I. 454, 182 A. 808, 104 A.L.R. 389. See, also, People v. Ringe, 197 N.Y. 143, 90 N.E. 451, 27 L.R.A.,N.S., 528, 18 Ann.Cas. 474; State v. Williams, 297 Mo. 607, 250 S.W. 44.

Petitioners further contend that they “were not afforded due process by law or by the board.” The first portion of this contention constitutes a further attack upon the constitutionality of the act. But the act provides that a license may be suspended or revoked only “after proper hearing and notice to the licensee.” This was sufficient, “for it is well settled that due process does not require any particular form or method of procedure. It is sufficient if reasonable notice and reasonable opportunity to be heard and to present any claim or defense are afforded; due regard being had to the nature of the proceeding and the character of the rights which may be affected by it.” Eley v. Gamble, 4 Cir., 75 F.2d 171, 173. See, also, Enterprise Irr. District v. Tri–State Land Co., 92 Neb. 121, 138 N.W. 171; Ramsay v. Shelton, 329 Ill. 432, 160 N.E. 769.

The second portion of said contention relates to the actual proceedings before the board. It appears, however, that petitioner Drummey was personally served with notice and that petitioner Wilson had actual notice by receiving a copy thereof which was left at his place of business. These notices were received at a date which gave notice a reasonable time before the hearing was held and both petitioners actually appeared at the hearing. Both were given the opportunity to be heard and present any defense to the complaints. We are therefore of the opinion that the contention that they were not afforded due process by the board may not be sustained.

Further attacks are made by petitioners upon the proceedings before the board. They contend that the complaint in each instance did not state facts sufficient to show a violation of the act. This contention appears to be likewise without merit. Each complaint contained several counts and in each count it was alleged that the person charged did, on or about a specified date and at a specified place, “solicit for preparation for burial and for burial the dead body of ––––– (naming the person), the said ––––– (naming the person) being then dead.” Conceding the rule that proceedings before administrative boards are not ordinarily governed by technical rules of pleading and practice, petitioners nevertheless state that “it is required that the complaint be sufficient to fully advise on its face what the charge is.” Assuming that petitioners correctly state the requirement, it appears that said requirement was met by the complaints here.

The only remaining contention of petitioners is that there was “no competent evidence to support action of board.” In treating this contention, we will confine the discussion to the evidence with respect to the so–called Shannon count. We do this for the reason that all parties are agreed that all of the acts alleged in all counts of the complaints, other than the acts alleged in the Shannon count, occurred before the provision in question was written into the statute and cannot be relied upon to sustain the action of the board.

With respect to the last–mentioned contention, it may be noted that it is not claimed that the evidence was insufficient. The record contains ample evidence to show that petitioner Drummey was a licensed embalmer and was also the manager of petitioner Wilson, doing business as a licensed funeral director under the name of Wilson & Kratzer, and that at the time and place mentioned he did, following the death of Ada M. Shannon, solicit for preparation for burial and for burial her dead body. The gist of petitioners' contention is that there was no competent evidence to support the action of the board. It appears that the main evidence offered in support of the Shannon count was the record of a prior investigation held when no charges were pending against either of the petitioners. At that prior investigation, petitioner Drummey was present but petitioner Wilson was not present. Petitioner Drummey was sworn and testified at said prior investigation and gave a detailed account of his dealings with the relatives of Ada M. Shannon following her death. When the hearing was had upon the complaints in question, both petitioners were present. Witnesses were examined on all counts and both petitioners took the stand and testified. The record here shows that the first witness sworn was the shorthand reporter who had transcribed the record of the prior investigation. She identified the transcript of the proceedings on the prior investigation and it was read to the board and introduced in evidence as an exhibit without any objection by either of the petitioners. The evidence given by petitioner Drummey on said prior investigation and so introduced before the board was the only evidence before the board relating to the dealings of petitioners, or either of them, with the relatives of said Ada M. Shannon. As above indicated, it was sufficient, at least if competent, to sustain the findings and action of the board in suspending the embalmer's license of petitioner Drummey and in suspending the funeral director's license of petitioner Wilson on the so–called Shannon count. We need not discuss the question of the sufficiency of said evidence to sustain the findings and action of the board in suspending the embalmer's license of petitioner Wilson. The Shannon count was not included in the complaint seeking the suspension of the embalmer's license of said petitioner, and it was conceded by the board in the trial court, and it is conceded here, that there was no justification for the order of the board suspending said license.

Turning to the question of the compentency of said evidence, we are of the opinion that it was competent evidence against petitioner Drummey but that it was incompetent evidence against petitioner Wilson. It is only necessary to state, as to petitioner Drummey, that the testimony given by him on the prior investigation constituted admissions as to material facts. It was therefore competent evidence as to said petitioner on the hearing before the board. People v. Wieger, 100 Cal. 352, 34 P. 826; Shafter v. Richards, 14 Cal. 125. On the other hand, we find no theory upon which said evidence could be held to be competent as to petitioner Wilson. He was not a party to the prior investigation nor was he even present at any time during its progress. Assuming, without deciding, that there was competent evidence before the board to show that petitioner Drummey was the agent or employee of petitioner Wilson, admissions of an agent or employee are ordinarily incompetent evidence against a principal or employer. Hackley v. Southern Pacific Co., 6 Cal.App.2d 611, 45 P.2d 447; Kellner v. Witte, 133 Cal.App. 231, 23 P.2d 1045; Shaver v. United Parcel Service, 90 Cal.App. 764, 266 P. 606; 10 Cal.Jur. 1083, § 322. We find nothing in the record before us to bring the situation within any recognized exception to the general rule. We are therefore constrained to hold that there was no competent evidence before the board to sustain the findings and decision of the board against petitioner Wilson.

We now turn to the question of whether the trial court was justified in ordering the writ of mandamus to issue on behalf of said petitioners. In our opinion, it was not justified in ordering said writ to issue with respect to petitioner Drummey, but it was justified in ordering the writ to issue with respect to petitioner Wilson. Under the circumstances before us, the writ of mandamus should issue only upon the showing of an abuse of discretion by the board. Bank of Italy v. Johnson, 200 Cal. 1, 251 P. 784; Cranford v. Jordan, 7 Cal.2d 465, 61 P.2d 45; Bennett v. Brady, 17 Cal.App.2d 114, 61 P.2d 530; Hogan v. Retirement Board, etc., 13 Cal.App.2d 676, 57 P.2d 520; McColgan v. Board of Police Commissioners, 130 Cal.App. 66, 19 P.2d 815; Mogan v. Board of Police Commissioners, 100 Cal.App. 270, 279 P. 1080; Nightingale v. Williams, 70 Cal.App. 424, 233 P. 807. See, also, 16 Cal.Jur. 814, § 31; 18 R.C.L. 125; 2 So.Cal.Law Rev. 87. The mandamus proceeding was submitted to the trial court solely upon the record of the proceedings before the board, which record did not show an abuse of discretion on the part of the board with respect to petitioner Drummey, but did show an abuse of discretion on the part of the board with respect to petitioner Wilson, as the action of the board was based solely upon evidence which was incompetent as to said petitioner Wilson.

These conclusions have been reached after a review of the numerous authorities cited by counsel and particularly those authorities relating to the nature and scope of the proceeding in mandamus. The general subject of the availability and scope of various remedies as applied to the proceedings before various boards and commissions, together with the subject of the finality of the findings and decisions of such boards and commissions, has been the subject of discussion in numerous cases decided in recent years. Many of the authorities are cited in two law review articles. 25 Cal.Law Rev. 694; 25 Cal.Law Rev. 315. We shall not attempt to make an exhaustive review of all of said authorities here. We believe, however, that, owing to the importance of the question involved in the present proceeding and the widely divergent views of able counsel with respect to the effect of certain recent decisions, a further discussion of some of the authorities cited in the briefs is appropriate.

It is well settled that, in the absence of constitutional authority, the Legislature may not confer judicial power upon statutory administrative boards exercising statewide jurisdiction, and therefore neither the writ of review nor the writ of prohibition is available as a remedy with respect to the proceedings of such boards. Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557, 59 P.2d 119; Whitten v. California State Board of Optometry, 8 Cal.2d 444, 65 P.2d 1296, 1297; Jacobs v. Board of Dental Examiners, Cal.App., 75 P.2d 96; MacCracken v. Board of Medical Examiners, Cal.App., 74 P.2d 289; O'Donnell v. Board of Medical Examiners, Cal.App., 70 P.2d 246. We believe, however, that the Legislature may confer upon such boards “quasi judicial functions” and that it did so by the statute under consideration which provides for the making of decisions in the general nature of judicial decisions after a hearing held upon notice. The term “quasi judicial” is defined as “Designating an act or proceeding of or before an administrative tribunal or official of the general nature of a judicial act but not within the judicial power as defined under constitutions.” Webster's New Standard Dictionary, 2d Ed. Such decisions have been termed “administrative determinations” (Whitten v. California State Board of Optometry, supra), and it has been said that such decisions are made in the exercise of “discretionary administrative functions” (Jacobs v. Board of Dental Examiners, supra). But whether it be said that the board exercises quasi judicial functions or discretionary administrative functions appears immaterial. These terms are practically synonomous as applied to the powers and functions conferred upon the board by the statute before us and either term may be employed without doing violence to the recent decisions which merely hold that such a board does not and cannot exercise judicial power. The appropriate remedy with respect to a decision of such an administrative board is the proceeding in mandamus. This is indicated in Whitten v. California State Board of Optometry, supra, where it is said that the board's “discretion could be confined within legal limits * * * by the use of the writ of mandamus.” What then is the nature and scope of the proceeding in mandamus when employed for the purpose of compelling an administrative board to act in a certain manner or, in other words, when employed for the purpose of attacking a decision previously made by such a board?

We are of the opinion that practically all of the authorities on the subject of the nature and scope of the proceeding in mandamus, when employed for the purpose above indicated, may be reconciled when read in the light of the nature of the powers and functions conferred by the particular statute under consideration in each case. It appears that a distinction must be made between those statutes conferring purely ministerial powers and functions and those statutes conferring discretionary powers and functions. It may be difficult in certain cases to determine the type of powers and functions conferred by a particular statute as is illustrated by the discussion in some of the decisions, but the distinction is of importance in determining the scope of a mandamus proceeding when directed at a particular board or officer. When directed at a board or officer exercising purely ministerial powers and functions, all questions of fact are determined by the court in the mandamus proceeding without regard to any previous determination of fact by such board or officer. Sheehan v. Board of Police Commissioners, 197 Cal. 70, 239 P. 844; Sheehan v. Board of Police Commissioners, 47 Cal.App. 29, 190 P. 51; Tulare Water Co. v. State Water Comm., 187 Cal. 533, 202 P. 874; French v. Cook, 173 Cal. 126, 160 P. 411. But, when directed at a board or officer exercising discretionary powers and functions, and particularly when directed at a board authorized by law to decide questions of fact and to make decisions after a hearing held upon notice, the rule is otherwise and, as shown by the authorities previously cited, the sole issue then to be determined by the court in the mandamus proceeding is whether the board or officer abused the discretion conferred. Compare Mogan v. Board of Police Commissioners, 100 Cal.App. 270, 279 P. 1080 with cases last cited. See, also, Inglin v. Hoppin, 156 Cal. 483, 105 P. 582. The distinction is borne out in Sheehan v. Board of Police Commissioners, 47 Cal.App. 29, at page 35, 190 P. 51, 54, the court quoting from French v. Cook, 173 Cal. 126, 160 P. 411, where it was said: “It is not a board or tribunal by law vested with authority to decide a question, and herein lies the distinction between this case and cases cited in which it was substantially held that the statute was to be construed as submitting the question to the decision of the board or officer.”

The statute before us conferred upon the board the power to hold hearings upon notice, to hear and weigh evidence, and to make decisions in accordance with the facts as it found them. In other words, the statute conferred upon the board discretionary powers and functions or quasi judicial functions rather than purely ministerial functions. Under the authorities cited, the findings and decision of the board carried with them a definite degree of finality and were open to attack in the mandamus proceeding only upon a showing of an abuse of discretion. Petitioners were not entitled, as they contend, to a trial de novo on all questions of fact previously heard and determined by the board, and, when they submitted the mandamus proceeding solely upon the record of the proceedings before the board, the sole question was whether that record showed an abuse of discretion by the board. In other words, they were not entitled to have a redetermination of all issues of fact by the trial court and a substitution of the discretion of the court for the discretion of the board.

Petitioners cite and rely upon Saxton v. Board of Education, 206 Cal. 758, 276 P. 998, but that case is not in point. The statute, Pol. Code, § 1609, subd. 5, as amended by St.1921, p. 1664, there provided: “Nothing in this act shall be construed in such manner as to deprive any teacher of his rights and remedies in a court of competent jurisdiction on a question of fact and law.” It was there held that said provision had the effect of giving the teacher “a trial de novo before the superior court, after a hearing before the board of education.” 206 Cal. 758, at page 768, 276 P. 998, 1002. That was a statute, such as is referred to in some of the decisions, providing for a statutory trial de novo. Standard Oil Co. v. State Board of Equalization, supra, 6 Cal.2d 557, at pages 561, 562, 59 P.2d 119; Whitten v. California State Board of Optometry, supra. The statute before us contains no such provision.

We need not pause to enumerate the various ways in which an abuse of discretion on the part of a board exercising discretionary powers and functions may be shown in a mandamus proceeding. We are satisfied that, when it is made to appear in the mandamus proceeding that such a board has made its findings and decision with respect to a petitioner without any competent evidence as to said petitioner to sustain said findings and decision, there is a sufficient showing of an abuse of discretion. It has been heretofore held that such a showing required the annulment of a decision of such a board in a proceeding in certiorari. Renwick v. Phillips, 204 Cal. 349, 268 P. 368; Dyment v. Board of Medical Examiners, 93 Cal.App. 65, 268 P. 1073; Messner v. Board of Dental Examiners, 87 Cal.App. 199, 262 P. 58; Osborne v. Baughman, 85 Cal.App. 224, 259 P. 70. Mandamus has been termed the “larger and more fully effective remedy” (Sheehan v. Board of Police Commissioners, 47 Cal.App. 29, 36, 190 P. 51, 54), and we need only hold here that the remedy afforded in a mandamus proceeding, when directed at a board exercising discretionary powers and functions, is at least as extensive as that previously afforded in a certiorari proceeding. It therefore follows that the showing made by petitioner Wilson should be held sufficient to show an abuse of discretion unless his failure to object to said evidence in the proceedings before the board is material on the issue of abuse of discretion. We are of the opinion that his failure to object is not material. In a judicial proceeding, the failure to enter an objection to the competency of the evidence upon the trial precludes the raising of such objection upon an appeal (People v. One Ford, Cal.App., 69 P.2d 473), but the proceeding before the board was not a judicial proceeding and the decision of the board was not the judgment of a judicial tribunal. While said proceeding before the board may be termed a quasi judicial proceeding, the board is essentially an administrative board and its decisions have not the attributes of a judgment of a judicial tribunal. The above–mentioned authorities involving certiorari proceedings make no mention of whether objection was made to the competency of the evidence before the boards in question. Said decisions appear to treat that question as immaterial in certiorari proceedings and we believe it to be immaterial in mandamus proceedings.

By way of summary, we conclude that, as to petitioner Drummey, the record did not show an abuse of discretion by the board and that the judgment of the trial court ordering a writ of mandamus to issue on behalf of said petitioner should be reversed. We further conclude that, as to petitioner Wilson, the record did show an abuse of discretion by the board and that the judgment of the trial court ordering a writ of mandamus to issue on behalf of said petitioner should be affirmed. It further appearing that petitioners have expressly abandoned their appeal from certain orders sustaining demurrers to their petitions for writs of review and writs of prohibition, said appeal should be dismissed.

The appeal of petitioners is dismissed. The portion of the judgment of the trial court ordering that a peremptory writ of mandamus issue commanding the board to dismiss the proceedings against petitioner Drummey and to admit said petitioner to the use and enjoyment of his embalmer's license is reversed. In all other respects said judgment is affirmed. The parties will bear their own costs on this appeal.

SPENCE, Justice.

We concur: NOURSE, P. J.; STURTEVANT, J.