DARE v. BD. OF MEDICAL EXAMINERS

TRAYNOR, J. Concurring and Dissenting.

The present case, together with Russell v. Miller, post, p. 817 [ 136 P.2d 318], is the latest step in the development of a new system of judicial review of the decisions of state-wide administrative boards. The earlier cases ( Standard Oil Co. of California v. State Board of Equalization, 6 Cal.2d 557 [59 P. 119]; Whitten v. State Board of Optometry, 8 Cal.2d 444 [ 65 P.2d 1296, 115 A.L.R. 1]; Drummey v. State Board of Funeral Directors, 13 Cal.2d 75 [ 87 P.2d 848]; McDonough v. Goodcell, 13 Cal.2d 741 [ 91 P.2d 1035, 123 A.L.R. 1205]; Laisne v. State Board of Optometry, 19 Cal.2d 831 [ 123 P.2d 457]) have been comprehensively analyzed elsewhere and their weaknesses exposed. (McGovney, Administrative Decisions and Court Review Thereof, In California, 29 Cal.L.Rev. 110; McGovney, The California Chaos in Court Review of the Decisions of State Administrative Agencies, 15 So.Cal.L.Rev. 391; Rode, Administrative Adjudication in California and Its Review by the Writ of Certiorari, 25 Cal.L.Rev. 694; Turrentine, Restore Certiorari to Review State-Wide Administrative Bodies in California, 29 Cal.L.Rev. 275; Turrentine, The Laisne Case — A Strange Chapter in Our Jurisprudence, 17 State Bar Journal, 165; Elliott, Certiorari and the Local Board, 29 Cal.L.Rev. 586.) When the majority of the court in Laisne v. State Board of Optometry, supra, held that if the order of an administrative board revoking a license "is questioned in a court of law, then under the Constitution of this state the petitioner must be given a trial de novo on the issues involved" ( 19 Cal.2d 831, 845) it was generally assumed that they meant what the Latin term expresses, a new trial of the matter all over again. The author of the majority opinion himself so defined it in his opinion in Collier Wallis v. Astor, 9 Cal.2d 202, 205 [ 70 P.2d 171], and the dissenting opinion in the Laisne case assumed that this definition continued to hold firm, without provoking either its repudiation or qualification in the majority opinion. It is now clear, however, that such a trial is no longer contemplated. The complaining party finds that he is entitled, not to a trial de novo, but to a "review" of the action of the board "in the nature of a trial de novo." This review by a proceeding in mandamus has many characteristics of certiorari, some characteristics of a motion for new trial, but few if any characteristics of mandamus.

The new procedure resembles certiorari in the following particulars:

(1) The record of the proceedings before the board is not only admitted in evidence but is "ordinarily essential to the proper determination by the court of the question whether the respondent has performed its official duty in the premises." This definition of the court's function aptly describes a proceeding in certiorari (compare Code Civ. Proc. sec. 1074), but is foreign to the traditional conception of a proceeding to compel the performance of a duty prescribed by law, for example the duty of an administrative board to take jurisdiction and render a decision. Mandamus does not normally extend to the revision or dictation of the administrative decision. (Cal. Code Civ. Proc. sec. 1085; McGovney, op. cit. 29 Cal.L.Rev. 110, 149.)

(2) The respondent is required to produce the record. If the proceeding were in certiorari instead of mandamus it would be governed by section 1071 of the Code of Civil Procedure, providing that the writ specify that the one to whom it is directed must produce a transcript of the record and proceedings at a given time and place. The majority of the court have precluded themselves from invoking section 1071 only to find themselves compelled to formulate its equivalent: "The problem may arise as to who should present that record. Normally the respondent has or should have it prepared as a part of its records and include it as a part of its return to the alternative writ. If not produced until during the course of the trial, the respondent should have it available for the benefit of the court at that time. If the petitioner is required to produce it at his own expense the court, in the event the petitioner prevails, is authorized to impose the expense of preparing it by way of damages pursuant to section 1095 of the Code of Civil Procedure." Something is lost by language that does not specify the person who must produce the record, and that raises any doubt as to when it should be produced.

(3) The trial court may review the record as it would on certiorari. In the view of the majority opinion it is the function of the trial court to exercise its discretion to grant or deny either the alternative or peremptory writ of mandamus, and the function of the appellate court to determine whether the trial court has abused its discretion. The majority opinion in fact looks to the trial court to exercise its discretion so as to obviate unnecessary retrials in the court. It is anticipated that "in the ordinary case such a record would disclose that the controversy between the parties had been tried out before the board as fairly and completely as the circumstances of the case would permit." Criticism of the Laisne case has been taken to heart in the words: "It was never contemplated that the time of the court should be consumed in a reiteration of the competent evidence presented to the board and contained in the record of its proceedings. . . . If it appears that the controversy has been tried out in good faith before the board there is no reason why the time of the court should be taken up or the parties put to additional expense in duplicating the record before the board."

In an actual certiorari proceeding, the court would be confined to the record of the proceedings before the administrative board, and the board's determination would be quashed if the record disclosed that the board had acted outside its jurisdiction, or had made serious errors of law in the exercise thereof, or that its decision was not supported by substantial evidence. Under the system devised by the majority, however, the record is considered and weighed along with other evidence, a procedure unknown to the common law. The rule embodied in section 1870(8) of the Code of Civil Procedure is that if a witness is deceased, or out of the jurisdiction, or unable to testify, his testimony given in a former action between the parties, relating to the same matter may be admitted upon another trial. "The report of the official reporter, or official reporter pro tempore, of any court, duly appointed and sworn, when transcribed and certified as being a correct transcript of the testimony and proceedings in the case is prima facie evidence of such testimony and proceedings." (Code Civ. Proc. sec 273.) There is no comparable provision with respect to administrative determinations.

The majority opinion makes new evidence admissible in the following circumstances.

(1) "If it should appear from the record that incompetent evidence had been received by the board the complaining party should not be foreclosed from objecting on the trial to its admissibility." The majority opinion does not make clear by what rules the competency of the evidence is to be determined, or whether objection to its admission must be made at the board hearing. Under established precedents administrative boards are not required to follow the common law rules of evidence, even when the statutes governing their procedure are silent in this regard. (Wigmore, Evidence, (3rd ed.) vol. 1, secs. 4b-4c, pp. 27-95; Stephens, Administrative Tribunals and The Rules of Evidence.) Likewise objections to the admission of evidence must be made to the administrative board and cannot be raised for the first time in a court review. ( State Compensation Insurance Fund v. Industrial Acc. Com., 195 Cal. 174, 184 [ 231 P. 996].)

(2) "If the board had improperly refused to entertain admissible evidence the litigant should not be foreclosed from offering it at the trial." The liberal rules governing the admission of evidence before administrative boards make it unlikely that many errors of this sort will occur. In any event an administrative board should have the opportunity of correcting its own errors by a new hearing in which it can pass upon the new evidence. If instead, the superior court receives the evidence it may rest its decision upon it, even though the Legislature has delegated this responsibility to the administrative board. The superior court acts in its proper capacity only insofar as it reviews the record of the board proceeding, but steps out of character to take the place of the board by examining evidence that has not been presented thereto and arriving in effect at an administrative determination. ( Cf Mojave River Irr. District v. Superior Court, 202 Cal. 717, 725-730 [262 P.2d 724].) With respect to many issues it does not have the specialized background characteristic of administrative officers. "Thus the Commissioner of Corporations (with, of course, the assistance of his staff) determines whether a licensed securities broker has sufficient financial responsibility to carry out the obligations incident to operations as broker, the Insurance Commissioner, whether the investments of a licensed company have become insufficiently liquid to satisfy the demands which in the ordinary course of events may be made against it; a district board of oil and gas commissioners, whether there has been an unreasonable waste of natural gas from producing wells, and if so, to what extent gas production should be cut down; the Board of Medical Examiners, whether an abortion was medically necessary. If the Legislature had believed that such matters in connection with license revocation or other regulation would have been handled better by our Superior Courts, the latter would presumably have been entrusted with them." (Turrentine, The Laisne Case — A Strange Chapter in Our Jurisprudence, 17 State Bar Journal 165, 168.) In any event the courts are already so overburdened with their own work that they may well be driven to avoid undertaking administrative investigations either by denying the alternative or peremptory writ of mandamus or remanding the cases to the administrative boards.

(3) "If additional evidence not included in either category ((1) or (2) above) be sought to be introduced by a party, the court has the right to receive it upon a showing that, in the exercise of reasonable diligence, it could not have been introduced before the board." The majority opinion here borrows from the procedure governing a ruling on a motion for new trial. Section 657 of the Code of Civil Procedure provides that a new trial may be granted because of "Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial." Presumably superior courts will supplement the new system by following other traditional rules with respect to motions for new trial, namely, that motions for new trial on the ground of newly discovered evidence are looked upon with distrust ( Smith v. Schwartz, 14 Cal.App.2d 160 [ 57 P.2d 1386], and cases there cited), and that such evidence must not be merely cumulative, but must satisfy the court that had it been introduced at the previous trial the verdict might have been different. ( Brannock v. Bromley, 30 Cal.App.2d 516 [ 86 P.2d 1062]; see 20 Cal.Jur. 90-99; McBaine, Cases on Trial Practice, 639-647; Hayne on New Trial and Appeal, Rev. ed., p. 408.) Presumably also the appellate courts will follow established precedents in this field allowing the superior court judge a wide discretionary power in granting or denying a new trial on the ground of newly discovered evidence. (See Cooper v. Kellogg, 2 Cal.2d 504 [ 42 P.2d 59], and cases there cited.) While the majority opinion speaks of the court's right to receive the evidence, it makes no reference to any correlative right of the parties to introduce it, and this silence is consistent with its emphasis elsewhere on the power of the trial court to grant or deny the writ in its discretion.

It is clear that evidence at least cannot be deliberately withheld. "If the record before the board should disclose that the petitioner had intentionally presented a `skeleton' defense in the hearing before the board for the obvious purpose of transferring the controversy from the board to the court, that fact should weigh heavily against him in his endeavor to invoke the equity powers of the court in his behalf in the mandamus proceeding." The very effort to circumvent a bona fide administrative hearing would militate against the possibility of favorable judicial action. The majority opinion thus goes far to allay the fears engendered by the Laisne case that an administrative hearing would be reduced to "something in the nature of an inquest, or at most, to something like a preliminary hearing in a criminal proceeding where the administrative agency will expose its entire case and the licensee will save his evidence for the Court." (Attorney General's Petition for Rehearing in Laisne Case, p. 53.) With so much ground regained it is difficult to understand why the administrative board should still not be the first to weigh the new evidence. In motions for new trial not only does the trial judge who hears the evidence have wide discretion in passing upon the motion, but his ruling is rarely disturbed, since he is the one best qualified to determine whether there might have been a different result had the newly discovered evidence been disclosed. Similarly, the administrative board, conversant with the evidence it has already received on a matter within its special province, is uniquely qualified to receive the new evidence and integrate it with the old. There is wisdom in the rule that administrative remedies be exhausted before resort to the courts, and it is not consonant with such a rule to allow evidence to be presented to the superior court that has not been presented to the administrative board. The specialized knowledge and experience of the board enables it to make an effective preliminary inquiry into technical problems outside the ken of most judges. Without this canalization of technical problems they would soon flood the courts, diverting them from other pressing tasks. As it is, many of these problems are resolved expeditiously by administrative determinations so that judicial review never becomes necessary. When new evidence emerges, it is as a new piece of a pattern familiar to the board whose consideration thereof may make resort to the courts unnecessary. ( Abelleira v. District Court of Appeal, 17 Cal.2d 280 [ 109 P.2d 942, 132 A.L.R. 715].)

(4) "If the credibility of witnesses before the board be brought in question in the mandamus proceeding the opportunity should be afforded for further examination in order to contradict or impeach their testimony under well recognized rules of evidence and procedure." If the new system here followed the procedure on motion for new trial, newly discovered evidence designed merely to impeach or contradict a witness would not be admitted. (See cases cited in 20 Cal.Jur. 98.) Even if it departs from the procedure for motion for new trial superior court judges in all likelihood will not go far afield from familiar landmarks, given their discretionary power, which the majority opinion emphasizes. It would in any event often be difficult to locate witnesses who testified at a board meeting. If a witness is not available for the court proceeding he cannot be impeached by previous inconsistent statements, for under section 2052 of the Code of Civil Procedure "the statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them." ( People v. Compton, 132 Cal. 484 [ 64 P. 849]; see Hale, Impeachment of Witness by Prior Inconsistent Statements, 10 So.Cal.L.Rev. 135.) His testimony therefore apparently remains in the record. Once again, if an error has arisen in an administrative hearing, the administrative board should be given an opportunity to correct that error.

The majority opinion is for the most part a retracing of the way back from the concept of a trial de novo that never materialized. It stops short of a complete retreat to review by certiorari of administrative decisions, by a guarded permission of new evidence in the court proceeding in rare circumstances, together with a provision that the superior court form an independent judgment on all the evidence. The attendant qualification that "the findings of the board come before the court with a strong presumption of their correctness" suggests that the distinction between the new system and old may be more artificial than real.

The majority opinion cites two Texas cases in support of its statement that trial de novo is not always to be taken literally. The Texas courts, however, were not engaged in redefining a requirement of trial de novo made by themselves, nor were they inquiring into the scope of review under mandamus or any other common-law writ. They were interpreting statutes that prescribed statutory modes of review, conceding that the Texas Legislature has power to prescribe the mode and extent of court review of the decisions of Texas administrative agencies. In Shupee v. Railroad Commission of Texas, 123 Tex. 521 [ 73 S.W.2d 505], the statute provided for review of any decision of the Railroad Commission refusing to grant a certificate of convenience and necessity, by "petition" in a district court comparable to the superior court in California. The statute provided, "Said action shall be tried and determined as other civil causes in that court." The Supreme Court of Texas thought that the Legislature in granting powers to the commission did not intend that the court should substitute its judgment for that of the commission, and adopted by quotation from Corpus Juris the rule that the court should not disturb the findings of the commission if they are supported by substantial evidence. Under its holding that the court could not reweigh the evidence the review had the same scope as certiorari review in this state.

In Texas Liquor Control Board v. Floyd, (Tex.Civ.App.) 117 S.W.2d 530, review of the Board's determinations was by statuory "appeal" to a district court. The statute provided that in the proceeding on this appeal, "the trial shall be de novo under the same rules as ordinary civil suits." The inconsistency of the statute in characterizing the court review as both an appeal and a trial de novo has led the Texas courts to interpret this statute as not intending that the court should substitute its judgment for that of the commission. The Court of Civil Appeals, purporting to follow earlier decisions under the same statute, said, "As we view the law in such cases as this, the district court may not hear testimony which was not produced before the Board or its Administrator and determine even from a preponderance thereof, whether or not a dealer's license shall be cancelled. The court has not the power to substitute its judgment for that of the Board unless it appears that there was no testimony of probative and substantial effect before the Board to support its judgment and decree, or that the Board acted arbitrarily and capriciously in cancelling the license." (Ibid., 534.) Again the holding is that the review intended by the Legislature has the scope of certiorari review.

The majority of the court seek in these Texas decisions a justification for redefining the requirement of their own making that review of the decisions of state agencies in California must be by trial de novo. Confronted as they are, however, by the decision in Standard Oil Co. of California v. State Board of Equalization, 6 Cal.2d 557 [ 59 P.2d 119], that certiorari review cannot be accorded such agencies, they stop short of following the Texas decisions to the end. Instead they redefine their novel conception of mandamus as a substitute for certiorari. They also redefine the trial de novo as something so close to certiorari review that it is difficult to distinguish one from the other. The present confusion can be ended only by an outright abandonment of the decision in the Standard Oil Company case, and a return to the earlier decisions which that case over-ruled. Stare decisis is weak support for a decision that disregarded it.

The difficulties the court has experienced since the Standard Oil Company case arise from the abstraction that "judicial functions" cannot constitutionally be vested in administrative officers and boards exercising state-wide authority. In the early days of the state, the Practice Act of 1851, section 456, defined certiorari as including review of the decisions of a "board, or officer, exercising judicial functions." It obviously recognized that some boards and officers exercise "judicial functions." Section 456 was merely a restatement of the common-law scope of certiorari (see Goodnow, The Writ of Certiorari, 6 Pol.Sci.Quart. 493), and was reproduced in section 1068 of the Code of Civil Procedure of 1872. Undoubtedly the provisions of the Constitution of 1879 authorizing the superior and appellate courts to issue writs of certiorari meant certiorari as then defined.

Disregarding the historical uses of the writ and the implications of section 456 of the Practice Act, this court in 1856 in People v. Hester, 6 Cal. 679, held that a decision of a board of county supervisors was not reviewable by certiorari, on the ground that the separation of powers principle of article III of the Constitution of 1849 forbade vesting "judicial functions" in a board that also possessed legislative and executive functions, and that none of the functions of the board could therefore be regarded as judicial. Chief Justice Murray said, "Now the supervisors, not being judicial officers, or charged with the exercise of judicial duties, it results that the writ cannot be directly properly to them."

The opinion in the Standard Oil Company case, eighty years later, employs the same reasoning with respect to boards exercising state-wide powers, although People v. Hester was overruled the year after it was decided, in People v. Supervisors of El Dorado County, 8 Cal. 58. Chief Justice Murray, confessing error, said that the functions of boards and supervisors had always been "various and manifold; sometimes judicial," and that the principle of separation of powers was not intended to forbid the practice of vesting varied powers in such boards. Since then this court has recognized in numerous decisions that a great variety of local officers and boards exercise "judicial functions" in the sense of certiorari review. (See Elliott, Certiorari and the Local Board, 29 Cal.L. Rev. 586.) The court has distinguished the "judicial functions" of administrative boards from their legislative, executive, ministerial, and purely discretionary functions. The trend of the decisions has been to regard a board as exercising "judicial functions" when discharging a duty to determine property or other legal rights in accord with law and the evidence taken at a hearing. There is no longer any doubt that local boards may constitutionally be vested with authority to make first instance decisions of questions of law and issues of fact. ( Laisne v. State Board of Optometry, supra, at 847; Walker v. City of San Gabriel, 20 Cal.2d 879 [ 129 P.2d 349].) The function of the courts has been to review their proceedings by certiorari and set aside their decisions on points of law if erroneous and on questions of fact if there was no substantial evidence to support the findings.

In recent decisions a majority of this court have said that state boards cannot constitutionally be given "judicial functions." They did not, however, carry their reasoning to the logical conclusion that all the statutes creating state boards with fact-finding powers were invalid, and that the boards themselves were illegal. They only went so far as to hold that the functions of the boards could not be regarded as judicial, within the rule that certiorari lies to review the determinations of boards and officers "exercising judicial functions." Nevertheless, the premise of this conclusion was that even power to determine in the first instance rights of property and other legal rights could not constitutionally be vested in state boards. In the Drummey case the court predicated this doctrine on the due process of law clause of the Fourteenth Amendment. This was manifest error because the Supreme Court of the United States has long held that the requirement of due process is not infringed by vesting such power in administrative boards. ( United States v. Ju Toy, 198 U.S. 253 [25 S.Ct. 644, 49 L.Ed. 1040]; and many other decisions cited in the dissenting opinion in the Laisne case.) This court seems not to have noted that if due process of law was denied when the state vested such power in state boards, it was also denied when the state vested such power in local boards.

Later a majority of this court found the source of the unconstitutionality of vesting "judicial functions" in state boards in the judiciary clause of the California Constitution. (Art. VI, sec. 1; Laisne v. State Board of Optometry, supra.) The reasoning was that this clause vests all the judicial power of the state in the courts created by the Constitution, except that which may be vested by the Legislature in local "inferior courts," which it is authorized to establish. The rationalization for vesting "judicial functions" in local boards is that they are "inferior courts" established by the Legislature under the authority given in article VI. That authority, however, is for the establishment of local "courts," not local administrative boards. If indeed they are courts it is remarkable that the Legislature may vest in them a variety of other powers not judicial. Although article III of the Constitution of the United States requires that the judicial power of the national government be vested in the courts therein named, Congress, with the approval of the Supreme Court, has vested "judicial functions" in numerous federal administrative agencies. To explain why Congress has this power, and the state Legislature does not, a majority of this court stated that all the federal agencies are "inferior courts," which Congress is authorized by article III to establish. They overlooked that the tenure of the personnel of these agencies has never been the tenure that article III requires for judges of courts authorized by it.

It is a false premise that requires such rationalization. The Supreme Court of the United States long ago recognized that some powers of courts are exclusively judicial while others are of a nature that they may be exercised either by courts or by administrative agencies, and that administrative agencies have always exercised some powers identical with the powers of the courts. As early as 1855 in Murray v. Hoboken Land Imp. Co., 18 How. 272 [15 L.Ed. 372], the court held valid an act of 1820 authorizing administrative officers in the Treasury to determine the existence and amount of delinquency in the accounts of revenue collectors and to issue distress warrants on their property to enforce collection. The court held that there was no denial of due process of law and no violation of the judiciary article of the Constitution. The court declared "That the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act, must be admitted. So are all those administrative duties the performance of which involves an inquiry into the existence of facts and the application to them of rules of law. . . . We do not doubt the power of Congress to provide by law that such a question shall form the subject-matter of a suit in which the judicial power can be exerted. The Act of 1820 makes such a provision for reviewing the decision of the accounting officers of the treasury. But until reviewed, it is final and binding; and the question is, whether its subject-matter is necessarily, and without regard to the consent of Congress, a judicial controversy. And we are of the opinion it is not." It may be noted that this familiar decision with its interpretation of a judiciary clause of a constitution was made a quarter of a century before the adoption of the present Constitution of California.

This doctrine was clearly explained by Chief Justice Hughes in Crowell v. Benson, 285 U.S. 22 [52 S.Ct. 285, 76 L.Ed. 598]. The question there was whether Congress could vest in an administrative officer the adjudication of claims brought by employees against employers for compensation arising under a workmen's compensation law enacted by Congress. The court held that the statute was valid, and that the decisions of the administrative officer on all ordinary issues of fact were final if supported by substantial evidence. Thus the judicial review authorized under the statute, while not expressly called certiorari review, has the scope of the review afforded by that writ. The court recognized that the statute authorized the administrative officer to determine "the liability of one individual to another" (p. 31), a function often given courts. It said that the statute empowered the officer to determine "questions of fact as to the circumstances, nature, extent and consequences of the injuries sustained by the employee." (P. 54.) Yet the court found no objection to vesting these "judicial functions" in the administrative officer. It said "the reservation of full authority to the (reviewing) court to deal with matters of law provides for the appropriate exercise of the judicial function in this class of cases." (P. 54.) Concluding this phase of the case Chief Justice Hughes said: "For the purposes stated, we are unable to find any constitutional obstacle to the action of the Congress in availing itself of a method shown by experience to be essential in order to apply its standards to the thousands of cases involved, thus relieving the courts of a most serious burden while preserving their complete authority to insure the proper application of the law." On this point all the justices were in agreement.

There was a second point on which they were divided. The majority held that there were two issues of fact that might arise in an adjudication of claims under the statute, to which a different rule applied. They held that where it was contended that the place where the accident occurred was not navigable waters, or that the claimant was not an employee of the defendant when the injury was incurred, the essential powers of the courts could be preserved only in the reviewing court were to give a trial de novo on these fact issues. The reasons given for singling them out were (a) that this statute, enacted by Congress in exercise of its power to make admiralty law, could constitutionally apply only to accidents occurring on navigable waters, and (b) that Congress could not apply the principle of compensation for injuries where they occurred without fault of the defendant, unless an employment relation or comparable relation existed between the claimant and the defendant. On this requirement of trial de novo of the two excepted issues, Justices Brandeis, Stone, and Roberts dissented. In the course of his opinion on the second point, Chief Justice Hughes phrased the new doctrine as if it were a general rule that in all cases where a constitutional right depends upon the decision of an issue of fact there must be a trial de novo in a court on that issue. (See pp. 56, 60.) This novel doctrine was not expanded by the Supreme Court into a general rule (see McGovney, op. cit. 29 Cal.L.Rev. 110, 125-129, 138-142), but even if it had been it would have no application to a case like Drummey v. State Board of Funeral Directors, supra. Nevertheless this court cited Crowell v. Benson in support of its holding that the fact issues decided by the board must be independently redetermined by a court, even though there was no issue of constitutional right in that case. Drummey did not question the constitutionality of the statute, his license was suspended by the board under a statute admittedly valid, and the only issue of fact was whether he had done any act that was a ground for suspension under the statute. Nor was any issue of constitutional right raised either in the Laisne case or in the present case. If the petitioner advertised in a manner forbidden by a valid statute he cannot claim that any constitutional right is violated by suspension of his license. A comparable problem is presented by a criminal statute that defines the act constituting a crime. If the statute is constitutional, the issue of fact whether the accused committed the prohibited act raises no constitutional issue. Yet the majority opinion in this case still clings to the statement that the new rule is founded on the protection of "a constitutional right either of liberty or property."

In the present case the question is the scope of judicial review of a decision of an administrative board authorized to adjudicate issues of fact arising in the application of a valid statute. Had Dare questioned the validity of the statute and the board had ruled against him, he could have had the decision set aside by certiorari if the reviewing court concluded that the statute was invalid. Whatever were the early limitations in England on the issues open on certiorari, the courts of this country long ago held that on certiorari the reviewing court can set aside an administrative decision based upon an error of law. (A leading case to this effect is People v. Smith, 45 N.Y. 772, decided in 1871; see Goodnow, op cit. 6 Pol. Sci. Quart., 493.) That rule was embodied in section 462 of the Practice Act of 1851 and in section 1074 of the Code of Civil Procedure of 1872 by the provision that the reviewing court may "determine whether the inferior tribunal, Board, or officer has regularly pursued the authority of such tribunal, Board or officer." It should also be observed that if a board follows an unconstitutional procedure, or fails to follow a procedure prescribed by statute, its decision may be set aside on certiorari.

The recent decisions requiring trial de novo of the findings of administrative agencies exercising state-wide power have assumed that for various reasons it is unconstitutional in this state to vest "judicial functions" in such agencies, all this to a single result, the prevention of review of their decisions by writ of certiorari. Do the functions of these agencies cease to be "judicial" when their decisions are reviewable by the majority's newly qualified trial de novo? Has not the majority opinion by its very qualifications of trial de novo, described in the first part of this opinion, belied its own contention that it is unconstitutional to authorize such boards to make first instance decisions on questions of law and issues of fact?

I concur in the judgment insofar as it holds that it was proper for the trial court to deny the alternative writ of mandamus. I dissent on the ground that Standard Oil Co. v. State Board of Equalization, supra, should be overruled and that the present decision should be without prejudice to the right of the petitioner to apply for certiorari.

Gibson, C.J., and Edmonds, J., concurred.