Cal Pacific Collections Inc. v. Powers
| Decision Date | 03 June 1968 |
| Citation | 69 Cal.Rptr. 118 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CAL PACIFIC COLLECTIONS INC., a California Corporation, Norman Marco, Elfriede T. Lawson, Martin W. Lawson, Petitioners and Respondents, v. Harold J. POWERS, Director of the Department of Professional and Vocational Standards, State of California et al., Defendants and Appellants. Civ. 31396. |
Thomas C. Lynch, Atty. Gen., and David Gould, Deputy Atty. Gen., for defendants and appellants.
Carter & Campbell and Roger C. Campbell, Culver City, for petitioners and respondents.
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This appeal is from a judgment granting a peremptory writ of mandate. The appellants are Harold J. Powers, Director of the Department of Professional and Vocational Standards (hereafter Director) and Collection Agency Licensing Bureau (hereafter Bureau) a statewide administrative agency under Director's supervision and control.
Respondents are Cal Pacific Collections Inc., a California corporation (hereafter Cal Pacific) and its officers: Norman Marco, president; Elfriede Lawson, vice president; and Martin W. Lawson, secretary and "qualified person."
The facts are not disputed. the issue is one of law relating to jurisdiction and the right of appellants to discipline the several respondents, pursuant to the provisions of the Collection Agency Act. (Ch. 8, div. 3, § 6850 et seq., of the Business and Professions Code, hereafter called the Act.)
Chronologically stated these are the pertinent facts:
On or about July 13, 1958, Cal Pacific was first issued a state license to engaged in the collection agency business; 1 the three individual respondents were its corporate officers at that time and at all relevant times thereafter. In 1962, due to the fact that Cal Pacific had moved to a new location, a duplicate license was issued as provided in section 6912 of the Act.
On or about October 26, 1960, following a hearing on an earlier accusation, Cal Pacific's license was revoked for failure to maintain the required balance in its clients' trust account; however, the revocation was stayed and Cal Pacific was placed on probation for a period of three years. At the same time the qualification certificate theretofore issued to Martin Lawson as "a qualified person" was revoked, but said revocation was also stayed for a period of three years.
On February 28, 1963, Norman Marco and Elfriede Lawson terminated their employment with Cal Pacific.
On March 4, 1963, Cal Pacific voluntarily surrendered its license pursuant to section 6949 of the Act; surrender of the license was accepted effective March 15, 1963; and the Bureau chief notified Cal Pacific of such acceptance by letter dated March 18, 1963, although the Act does not provide for acceptance in this manner or at all.
The qualification certificate previously issued to Martin Lawson continued in force until June 30, 1963, at which time the certificate was revoked for nonpayment of the continuation fee required by section 6893 of the Act as then effective.
On June 20, 1963, the Bureau initiated disciplinary proceedings against the four respondents by filing an accusation against them pursuant to sections 6949 and 6949.1 of the Act then in effect.
At that time section 6949 provided as follows:
"Any licensee may, prior to the suspension or revocation of his or its license, so long as no disciplinary action is then pending against said licensee, voluntarily surrender his or its license by mailing the license to the director together with a written statement of such surrender, setting forth the reasons therefor, and a written declaration of the satisfactory disposition of all accounts of the licensee prior to such voluntary surrender, together with a written statement of notification to the licensee's surety company of such voluntary surrender, and upon receipt of the request for the cancellation of the bond from the surety company, the license shall forthwith be canceled." 2
At that time, also, section 6949.1 provided as follows:
"The lapsing or suspension of a license by operation of law or by order or decision of the director or a court of law, or the voluntary surrender of a license by a licensee shall not deprive the director of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license or to render a decision suspending or revoking such license."
The accusation of June 20, 1963, following the appropriate statutory notice and statement to respondents pursuant to the Administrative Procedure Act (Gov.Code, § 11505), was called for hearing on February 3, 1964, at which time respondents severally entered special appearances through their attorney who, at that time, made a motion that the hearing officer determine the jurisdiction of the Director and the Bureau over each respondent and the subject matter of the accusation, and in that manner respondents severally challenged the power, authority and jurisdiction asserted over them. The hearing officer, after extended argument, ruled that the Director and Bureau had jurisdiction. Thereupon respondents' attorney withdrew and the hearing proceeded as a default. On February 7, 1964, the hearing officer submitted his proposed decision which recommended that Cal Pacific's license together with any right of renewal or reinstatement be revoked, that the individual officers (employees) be disqualified from holding any office or employment in the collection agency business, and that Martin Lawson's qualification certificate be revoked. On February 20, 1964, the Director adopted the proposed decision as his own, to become effective on March 19, 1964.
The petition for writ of mandate was filed in the superior court on April 20, 1964. At no time have respondents contested the sufficiency of the evidence to support the Director's findings, nor the sufficiency of the findings to support the decision rendered or the disciplines and penalties imposed, except, of course, on the basis of the asserted lack of jurisdiction. The trial court prepared a very lengthy and detailed minute order, so-called, the substance of which, after revision, correction and deletion of case citations and argumentative matter, was incorporated into the formal findings of fact, conclusions of law and judgment. The court found that appellants and the hearing officer had not acted arbitrarily, capriciously or autocratically or with bias or prejudice against any respondent, but that they had acted and proceeded without and in excess of jurisdiction under the Collection Agency Act in force prior to the the amendments which became effective on September 21, 1963. The court ruled specifically that these amendments, which broadened the scope of the disciplinary powers of appellants had no retroactive application to the accusation filed June 20, 1963. 3
Appellants predicate their claim of jurisdiction over Cal Pacific on section 6949.1 of the Act, emphasizing the clause "* * * the voluntary surrender of a license * * * shall not deprive the director of jurisdiction to proceed with any * * * disciplinary proceeding against such license * * * "
The trial court rejected this claim. It found that when the Bureau chief accepted Cal Pacific's surrender of license by letter date March 18, 1963, he made an administrative determination that at that time no disciplinary action or proceeding was then pending with which "to proceed" as contemplated by section 6949.1.
Appellants seek to negate the consequences which flow form such acceptance by arguing that section 6949.1 must be read with section 6949, that since the latter accords a licensee the "right" to surrender a license so long as no disciplinary action is "then" pending, the Bureau's notification of acceptance of the surrender was a legal nullity because the statutory right to surrender was not made contingent upon acceptance and the Bureau was not thereby estopped "to proceed."
Appellants argue that the trial court's interpretation and application of the law (sections 6949 and 6949.1) ignores and operates to defeat the "residual jurisdiction" which the Legislature meant to invest in the Bureau; and, further, that it enables a disreputable licensee to anticipate and forestall any future application of section 6906, subsection (d), which authorizes the Bureau chief to refuse a license to anyone who previously has had a license revoked for cause.
The interpretation of the statute in this instance is made difficult because of the legislative use of ambiguous terminology, namely, "to proceed."
Appellants cite a New York Court of Appeal decision, which adopts a definition from Webster's Century Dictionary, that "proceed," in the context of judicial proceedings means "to conduct, to begin and carry on an action or proceeding." 4
It must be acknowledged that "proceed" as a verb has many meanings, dependent upon the context of usage and the objectives contemplated. Fenby Handy Dictionary of English Synonyms (5th ed.--David McKay Co., Phila.) lists synonyms for the verb "to proceed," as follows: "move, advance, arise, issue, emanate, spring." 5
Quite apposite in this setting is Sir Francis Bacon's epigram: (The Advancement of Learning (1623).)
No doubt it is fascinating diversion for scholars in the field of semantics to probe words to their etymological depths, trace their historic transmutations and produce definitions universal, constant and lucid in all applications, but in the area of statutory interpretation it is too often an exercise in augury for the judiciary to proclaim what the composite mind of the Legislature intended when it...
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