Fascination, Inc. v. Hoover

• Decision Date: 11 July 1952
• Citation: 246 P.2d 656,39 Cal.2d 260
• Court: California Supreme Court
• Parties: FASCINATION, Inc. v. HOOVER et al. L. A. 22232.

Page 656

246 P.2d 656

39 Cal.2d 260

FASCINATION, Inc. v. HOOVER et al.

L. A. 22232.

Supreme Court of California, in Bank.

July 11, 1952.

Irving M. Smith, City Atty., Philip J. Brady and John R. Nimocks, Deputy City Attys., Long Beach, for appellants.

Fred N. Howser, Los Angeles, for respondent.

CARTER, Justice.

Defendants appeal from a judgment granting a writ of mandate commanding them to issue a license to plaintiff, a corporation, to conduct an amusement business consisting of a game called 'fascination' in the city of Long Beach. Defendant are Hoover, the city tax collector, Dovey, chief of police, and Sutherland, city prosecutor.

There are certain ordinances of the City of Long Beach covering the issuance of licenses to operate amusement games and other businesses. It appears that before a person may engage in business in said city he must obtain a license therefor from the city tax collector and pay certain fees; if he operates the business without a license he is guilty of a misdemeanor. In order to obtain a license he must submit with his application 'such information as the tax collector may reasonably require.' Under section 6.100 of Ordinance C-2232 the collector 'shall thereupon refer such application to the appropriate departments of the City government in order that it may be ascertained whether or not the business proposed to be conducted or the premises in which it is proposed to be conducted or the premises in which it is proposed to locate such business, will comply with applicable laws and ordinances. Upon receipt of written notice from such departments that such business and the location at which it is proposed to conduct the same will so comply, it shall be the duty of the tax collector to prepare and issue a license to the person making application therefor upon the payment of the proper fees. In the event that a particular department of the City government shall reject an application for the reason that such business or the location at which it is proposed to conduct the same will not so comply with applicable laws and ordinances, the tax collector shall not issue such license. If, at the time of making application therefor, any money has been paid in excess of that required for the expense of conducting an inspection by the City, the City Council shall, anything herein to the contrary notwithstanding, authorize the making of a refund to the applicant of such excess, upon receipt from the tax collector of information that such application has been rejected.'

In compliance with the foregoing ordinance, plaintiff, on April 10, 1951, filed an application for a license to conduct an amusement business at a specified place and accompanied it with a description of the game to be operated. Each player is seated at a table and supplied with a ball which he endeavors to roll up a slope into holes in the table in front of him, with the aim of dropping balls in five holes in a row. The ball then returns to him. The player who first achieves that goal is the winner. He receives merchandise, replay coupons or merchandise certificates.

The chief of police, Dovey, and city prosecutor Sutherland, were the appropriate officials to which the application should be submitted under section 6.100 to ascertain whether the business would violate any law and the tax collector submitted plaintiff's application to them. After an investigation by those officers (further discussed later herein) they found and recommended to the tax collector that the game would constitute a violation of 'certain sections' of the state Penal Code. Accordingly, the tax collector denied plaintiff's application on May 29, 1951.

Thereafter, plaintiff commenced this action for a writ of mandate to compel the issuance of a license to operate the business charging that Fascination is a game of skill rather than of chance and violates no laws; and that Dovey and Sutherland 'studied and considered' the game but acted arbitrarily and capriciously in denying the application. Defendants' answer denied the pertinent allegations of the complaint. The trial court found that the game was intended to be one of skill, not chance, and that defendants acted arbitrarily, making only a cursory examination of the game and without substantial evidence. Accordingly, judgment was entered directing the issuance of the writ and the appeal now considered was taken therefrom by defendants.

At the opening of the trial plaintiff took the position that evidence as to whether the game was one of chance or skill should be received. Defendants asserted that the only admissible evidence was the extent and nature of the investigation made by them to ascertain whether they had acted reasonably and on sufficient grounds in denying the application. The court agreed with plaintiff and evidence pro and con as to whether the game was one of skill or chance was admitted.

On the issue of the investigation by defendants, Dovey testified that plaintiff's secretary, Gibbs, wanted Dovey and Sutherland to examine the game on May 3, 1951. They, accompanied by Rope, an investigator from Sutherland's office, three police officers, and the city electrician, went to where the game was being erected. They were there about an hour and a half examining the game. Dovey and the others, except the electrician, played the game. Dovey rolled 30 balls, the others rolled many more. The equipment was inspected. The game was demonstrated by Gibbs and Dovey concluded it was a game of chance from 'going it' himself and Gibbs' statement that he could not successfully operate it with the chevron out. (The chevron is a V shaped protuberance on the table immediately in front of the ball receiving holes and the ball must be rolled over it.) He tried to make the ball go into certain holes. His test as to whether the game could be characterized as one of skill or chance depended on which predominated. The chevron made it impossible to control the course of the ball. The police officers told him it was a game of chance. Sutherland testified substantially to the same effect and also that he submitted a game exactly similar to a university professor. Gibbs testified that at the May 3rd inspection he told them it was a game of skill; that the chevron made it more so; that by the exercise of skill the ball could be made to drop in a chosen hole; that the investigation took less than an hour; that Dovey and Sutherland rolled the ball seven or eight times; and that he was permitted to show them anything he wished about the game.

As before stated most of the record consists of evidence on the question of whether or not the game was one of skill or chance. Defendants contend that the admission of that evidence was error, their position being that the only evidence admissible was what was done and considered by Dovey and Sutherland in determining that question; that the finding that they acted arbitrarily is not supported by the evidence; and that in any event the matter should have been remanded to the officers to conduct a further and proper investigation if the one had was insufficient.

Putting aside for the moment the question of whether or not a notice and hearing in the traditional sense must be accorded the applicant for a license, it is clear that it was error to admit evidence in the trial court on the question of whether the game was one of skill or chance. Whether or not a notice and hearing is required, the applicant was not entitled to a trial de novo on the question inasmuch as we are dealing with a local administrative agency or officers. The authority to decide the question was vested in those officers. The trial court is limited to an examination of the matters considered and examined by the officers in arriving at their decision; to an ascertainment of whether such matters were sufficient to justify denying the license. Bank of America Nat. Trust & Savings Ass'n v. Mundo, 37 Cal.2d 1, 229 P.2d 345; Nishkian v. City of Long Beach, 103 Cal.App.2d 749, 230 P.2d 156; Kaiser Co. v. Reid, 30 Cal.2d 610, 184 P.2d 879; Universal Consol. Oil Co. v. Byram, 25 Cal.2d 353, 153 P.2d 746; Los Angeles Gas & Elec. Co. v. County of Los Angeles, 162 Cal. 164, 121 P. 384, 9 A.L.R. 1277; Hammond Lbr. Co. v. County of Los Angeles, 104 Cal.App. 235, 285 P. 896; La Prade v. Department of Water & Power, 27 Cal.2d 47, 162 P.2d 13; Cantrell v. Board of Supervisors, 87 Cal.App.2d 471, 197 P.2d 218; see Southern Cal. Jockey Club v. California, etc., Racing Bd., 36 Cal.2d 167, 223 P.2d 1.

Plaintiff cites Saks & Co. v. City of Beverly Hills, 107 Cal.App.2d 260, 237 P.2d 32, where the attack was on revocation of a zoning ordinance variance by a city council, and the court said that where there is pleading and proof that a local board acted arbitrarily, capriciously or fraudulently, the superior court will afford petitioner a trial de novo. If that means that such a trial may be granted where the question presented is the precise one the local agency had authority to decide and did decide, it is contrary to the foregoing authorities and must be disapproved. In Mitchell v. Morris, 94 Cal.App.2d 446, 210 P.2d 857, a permit to erect a residence on a lot was denied because of lack of access. The sole question there presented was the constitutionality of the ordinance, and the statement that the property owner must prove in court that his lot had adequate access in order to show the city agency's action was arbitrary, is dictum. What the court meant was, that plaintiff must show that the agency had no basis for the denial of the permit which embraced the conclusion that the access was adequate. The primary point involved in the Saks case was whether a hearing was accorded petitioner. But in a case where a hearing is required and none is had, the proper procedure, as will be discussed later herein, is to remand the case to the local agency with directions to afford petitioner a hearing, rather than a trial de...