Department of Alcoholic Beverage Control v. Superior Court for Orange County

• Decision Date: 10 December 1968
• Court: California Court of Appeals Court of Appeals
• Parties: DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF ORANGE, Respondent; Katherine M. and Wilbur J. MUMFORD, dba: the Safari Room, Tustin, Real Parties in Interest. Civ. 9282.

Page 780

73 Cal.Rptr. 780

268 Cal.App.2d 67

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF ORANGE, Respondent Katherine M. and Wilbur J. MUMFORD, dba: the Safari Room, Tustin, Real Parties in Interest.

Civ. 9282.

Court of Appeal, Fourth District, Division 2, California.

Dec. 10, 1968.

[268 Cal.App.2d 68] Thomas C. Lynch, Atty. Gen., and Lynn Henry Johnson, Deputy Atty. Gen., for petitioner.

William A. Dougherty, Tustin, for real parties in interest.

OPINION

TAMURA, Associate Justice.

Petitioner (Department) seeks a writ of prohibition directing the superior court to vacate an order staying enforcement of a liquor license suspension order issued by the Department.

The following events led to the filing of the present petition:

The Department, after notice and hearing, found that the Mumfords (Real Parties in Interest herein) had violated certain provisions of the Alcoholic Beverage Control Act (Act) relating to the sale of liquor to minors and ordered a ten-day license suspension. ¹ Following affirmance of the decision by the Alcoholic Beverage Control Appeals Board (Board), the Mumfords sought a writ of review from this Court. The application for the writ was denied on the ground that it was not timely filed, more than 30 days having elapsed since the filing of the final order of the Board. ² (4th Civil No. 9259.) Thereafter the Mumfords filed a petition for writ of mandate in the Superior Court in Orange County seeking the same relief sought from this Court. In response to a 'writ of mandate and order to show cause' and a stay order, the Department filed a demurrer challenging the jurisdiction of the superior court. Following hearing on the order to show cause, the court dismissed the petition and dissolved the stay order. The Mumfords thereupon obtained and Ex parte order, from another judge of the same superior court, restraining the Department from enforcing its suspension order pending an appeal from the order dismissing the petition for writ of mandate. It is that stay order which the Department seeks to have vacated by the present petition for writ of prohibition.

The superior court was without jurisdiction to review the final order of the Board or to stay enforcement of the suspension order.

Prior to the 1967 amendments to the Act (Stats.1967, ch. (1525), superior courts had jurisdiction to review decisions of the Department and orders of the Board. (Martin v. Alcoholic Bev. Etc. Appeals Bd., 52 Cal.2d 238, 245, 340 P.2d 1; Koehn v. State Board of Equalization, Department of Alcoholic Beverage Control, 166 Cal.App.2d 109, 118, 333 P.2d 125.) In 1967 the Legislature established a new procedure for judicial review. It enacted section 23089 ³ which provides that 'final orders of the board may be reviewed by the courts specified in Article 5 (commencing with Section 23090) of this chapter within the time and in the manner therein specified And not otherwise' (emphasis supplied), and enacted a new article 5. The review specified in section 23090 is for an application for writ of review to the Supreme Court or to the Court of Appeal for the appellate district in which the proceeding arose, such application to be made within 30 days after the filing of the final order of the Board. Also included as a part of the new article 5 is section 23090.5 which provides:

'No court of this state, except the Supreme Court and the courts of appeal to the extent specified in this article, shall have jurisdiction to review, affirm, reverse, correct, or annul any order, rule, or decision of the department or to suspend, stay or delay the operation or execution thereof, or to restrain, enjoin, or interfere with the department in the performance of its duties, but a writ of mandate shall lie from the Supreme Court or the courts of appeal in any proper case.'

Sections 23089 and 23090 were obviously patterned after sections 5810 and 5950 of the Labor Code relating to judicial review in compensation proceedings. ⁴ Cases construing the Labor Code sections are applicable to the construction of their counterparts in the Alcoholic Beverage Control Act. (Samson Market Co. v. Kirby, 261 A.C.A. 659, 664, 68 Cal.Rptr. 130.) Section 5810 of the Labor Code has been construed as precluding judicial review of decisions in compensation proceedings except by the courts designated in section 5955 of the Labor Code. (Thaxter v. Finn, 178 Cal. 270, 274--275, 173 P. 163, construing former sections 27 and 84 of the Workmen's Compensation Insurance and Safety Act of 1913; see Loustalot v. Superior Court in and for Kern County, 30 Cal.2d 905, 909--910, 186 P.2d 673.) Thus, by the 1967 amendments to the Act, the Legislature has limited judicial review of decisions or orders of the Department involving the exercise of its limited judicial powers to the courts and within the time specified in section 23090. Of course, a prerequisite to such review is the exhaustion of the remedy provided by section 22, article XX of the Constitution by an appeal to the Board.

Section 23590.5 was also obviously modelled after section 5955 of the Labor Code ⁵, which in turn was modelled after section 67 of the Public Utilities Act of 1911. ⁶ (Loustalot v. Superior Court in and for Kern County, supra, 30 Cal.2d 905, 911, 186 P.2d 673; Samson Market Co. v. Kirby, supra, 261 A.C.A. 659, 664, 68 Cal.Rptr. 130.) Section 5955 of the Labor Code has been construed as depriving the superior court of jurisdiction to review or interfere with the operation of any order of the Industrial Accident Commission (Loustalot v. Superior Court in and for Kern County, supra, 30 Cal.2d 905, 910, 186 P.2d 673), including jurisdiction to stay enforcement of a Commission award (Pizarro v. Superior Court of Santa Clara County, 254 Cal.App.2d 416, 418--419, 61 Cal.Rptr. 923; Vickich v. Superior Court of Los Angeles County, 105 Cal.App. 587, 592, 288 P. 127.)

In the case under review, the departmental decision which the Mumfords sought to have reviewed involved the exercise of quasi-judicial or adjudicative power conferred upon the Department by the Constitution. (Covert v. State Board of Equalization, 29 Cal.2d 125, 131, 173 P.2d 545.) The Mumfords having failed to seek judicial review under section 23090 within the time therein specified, the decision of the Department must stand. Irrespective of the merits of the Mumfords' attack upon that decision, the superior court was without jurisdiction to review it. (Cf. Loustalot v. Superior Court in and for Kern County, supra, 30 Cal.2d 905, 912, 186 P.2d 673; North Pacific S.S. Co. v. Soley, 193 Cal. 138, 140, 223 P. 462; Thaxter v. Finn, supra, 178 Cal. 270, 173 P. 163; see United States Pipe and Foundry Co. v. Industrial Acc. Com., 201 Cal.App.2d 545, 549--550, 20 Cal.Rptr. 395.) And by virtue of section 23090.5, the superior court was without jurisdiction to stay the enforcement of the suspension order. (Cf. Loustalot v. Superior Court in and for Kern County, supra, p. 913, 186 P.2d 673.) The only courts empowered to stay such an order are the courts to which an application for a writ of review could have been made. (SEC. 23090.6 .)⁷

Although the 1967 amendments to the Act thus clearly divested superior courts of jurisdiction to review or stay the operation of a decision of the Department, the Mumfords contend that the amendments are unconstitutional, presumably on the theory that they constitute an unauthorized legislative attempt to curtail the constitutional jurisdiction of the superior courts. ⁸ To our knowledge, that issue has never been determined. In Samson Market v. Kirby, supra, 261 A.C.A. 659, 664, 68 Cal.Rptr. 130, the court held that section 23090.5 precluded superior courts from reviewing the validity of an administrative determination, as distinguished from a quasi-judicial decision of the Department, but did not pass upon the constitutionality of the section.

The Supreme Court has held that the enactment of section 67 of the Public Utilities Act of 1911 divesting superior courts of jurisdiction to review or interfere with decisions of the Railroad Commission was a valid exercise of the power conferred on the Legislature by section 22, Article XII of the Constitution. (Pacific Telephone Etc. Co. v. Eshleman, 166 Cal. 640, 658--659, 137 P. 1119, 50 L.R.A.,N.S., 652; see Loustalot v. Superior Court in and for Kern County, supra, 30 Cal.2d 905, 911, 186 P.2d 673.) In Pacific Telephone Etc. Co. v. Eshleman, supra, pp. 653--656, 137 P. 1119, 50 L.R.A., N.S., 652, the court concluded that legislative power to designate the Supreme Court as the only judicial tribunal empowered to review decisions of the Railroad Commission was to be found in the language of section 22, Article XII, of the Constitution, providing that 'the authority of the Legislature to confer such additional powers (upon the Commission) is expressly declared to be plenary and unlimited by any provision of this Constitution.'

The existence of legislative power under section 21, Article XX of the Constitution to limit judicial review of Industrial Accident Commission decisions to the Appellate Courts specified by the Legislature has also been confirmed. (Thaxter v. Finn, supra, 178 Cal. 270, 275, 173 P. 163; North Pacific S.S. Co. v. Soley, supra, 193 Cal. 138, 141, 223 P. 462.) In Thaxter v. Finn, supra, 178 Cal. 270, 275, 173 P. 163, the Court held that legislative authority to render Commission awards free from review or attack except as provided in the Workmen's Compensation Insurance and Safety Act could be reasonably implied from its power "to provide for the settlement of any disputes arising under the legislation contemplated by this section, * * * anything in this Constitution to the contrary notwithstanding." ⁹ The statutory limitation on judicial review was held to be a reasonable exercise of legislative authority in that it expedited final...