Hollywood Circle, Inc. v. Department of Alcoholic Beverage Control of Cal.
| Decision Date | 03 September 1957 |
| Citation | 314 P.2d 1007,153 Cal.App.2d 523 |
| Court | California Court of Appeals Court of Appeals |
| Parties | HOLLYWOOD CIRCLE, Inc., a corporation, Plaintiff and Appellant, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL of the State OF CALIFORNIA; Russell S. Munro, Director of the Department of Alcoholic Beverage Control of the State of California; Philip E. Davis, Area Administrator, Department a Alcoholic Beverage Control of the State of California; and Alcoholic Beverage Control Appeals Board of the State of California, Defendants and Respondents. Civ. 22095. |
Albert E. Isenberg, Beverly Hills, for appellant.
Edmund G. Brown, Atty. Gen., Edward M. Belasco, Deputy Atty. Gen., for respondents.
March 22, 1956, the Department of Alcoholic Beverage Control of the State of California revoked the on-sale liquor license of Hollywood Circle, Inc., a corporation.
March 23rd, the order of revocation was mailed to Hollywood Circle.
April 20th, Hollywood Circle's petition for reconsideration was denied by the Department.
May 3rd, Hollywood Circle mailed its notice of appeal to the Appeals Board of the Department.
May 7th, the Appeals Board filed the notice of appeal.
The Appeals Board dismissed the appeal for lack of jurisdiction, because it was filed more than forty days after the Department mailed the order of revocation.
Hollywood Circle appeals from a judgment of the superior court, denying its petition for a writ of mandate to review the proceeding of the Board.
The first inquiry is whether or not the notice of appeal was filed in time.
Section 23081 of the Business and Professions Code provides in part, 'Within 40 days after the decision of the department is delivered or mailed' an aggrieved party may appeal to the Appeals Board.
The Appeals Board is set up under the Constitution and Code as part of the administrative control of liquor sales in California. Const. Art. XX, § 22; Bus. & Prof.Code, § 23075.
Section 10 of our Civil Code provides that the time in which an act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.
Computing the time from the date of mailing the decision--March 23rd--to the date of mailing the notice of appeal--May 3rd--results in forty-one days, eight in March, thirty in April, and three in May.
So here we have a case of first impression in California: Does the same strict rule that requires a notice of appeal to be filed within the time specified by law apply to an appeal to an appeal board of an administrative agency?
When an administrative remedy is provided by law, relief must first be sought from the administrative body, and this remedy must be exhausted before the courts will act. Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90, 106, 280 P.2d 1, and cases cited.
In the leading case of Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 109 P.2d 942, 132 A.L.R. 715, Mr. Chief Justice Gibson, speaking for the Supreme Court, states the above rule; also that a court violating it acts in excess of jurisdiction; and also that administrative remedies are not exhausted until an administrative appeal, if the law provides for it, is fully prosecuted.
The general policy of our law is not unfavorable to judicial review of administrative proceedings. But it is the policy of our law that time limits for filing notices of appeal in all legal proceedings must be complied with literally and exactly. This is generally held to be a jurisdictional pre-requisite. Cf., In re Estate of Hanley, 23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250; 3 Cal.Jur.2d 653.
This court can see no reason why appeals in administrative tribunals should be governed by any other rule.
Therefore, in this case, the administrative appeal was filed too late, the Appeals Board correctly held that it had no further jurisdiction over it, the Department's decision became final, and the courts have no jurisdiction to review the proceeding.
It is not necessary to this decision to consider whether the date of mailing the notice of appeal or of its filing by the Department fixes the time within which the law requires that it be filed. For no matter how we compute the time, Hollywood Circle is still outside the forty-day limit.
In passing, however, perhaps this should be said: While it is a matter of legislative concern primarily, it seems to this court that in fairness time should be fixed by the date of mailing the notice of appeal, rather than by the date of filing it in the Department in Sacramento. Time starts from mailing the decision of the Department. So why shouldn't it end with mailing the notice of appeal to the Appeals Board?
The time elapsed from mailing the notice of appeal in this case to its filing--May 3rd to May 7th--could have presented a close legal problem here. For a good old-time horse-drawn stage could have made it from Hollywood to Sacramento in four days.
Moreover, while our law as to time to file a notice of appeal is almost as rigid and unyielding as a Procrustean bed, it is not absolutely so. In some cases the courts may relieve an appellant from late filing of a notice of appeal, when the delay has not been his fault.
Now let's come back to the case.
Hollywood Circle argues:
1. The 'final decision of the department' referred to in section 23081 of the Business and Professions Code includes the decision of the department on reconsideration.
2. Section 1013 of the Code of Civil Procedure is applicable to the forty-day period specified in section 23081.
3. Request and payment for the transcript of the record for review by the Appeals Board extends the time to appeal.
4. The trial court erred in sustaining the demurrer without leave to amend, denying petitioner at least one more chance...
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