Koehn v. State Bd. of Equalization, Dept. of Alcoholic Beverage Control

• Decision Date: 15 December 1958
• Citation: 333 P.2d 125,166 Cal.App.2d 109
• Parties: M. M. KOEHN, Petitioner and Respondent, v. STATE BOARD OF EQUALIZATION, DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Russell S. Munro, Director; E. L. Ledger, dba Ledger's Distributing Company, Respondents, Alcoholic Beverage Control Appeals Board, Ralph McGill, Don Bonar, and Russell Mather, Members, Respondents and Appellants. Civ. 17256.
• Court: California Court of Appeals Court of Appeals

Page 125

333 P.2d 125

166 Cal.App.2d 109

M. M. KOEHN, Petitioner and Respondent, v. STATE BOARD OF EQUALIZATION, DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Russell S. Munro, Director; E. L. Ledger, dba Ledger's Distributing Company, Respondents, Alcoholic Beverage Control Appeals Board, Ralph McGill, Don Bonar, and Russell Mather, Members, Respondents and Appellants.

Civ. 17256.

District Court of Appeal, First District, Division 1, California.

Dec. 15, 1958.

Hearing Denied Feb. 11, 1959.

Edsel W. Haws, Senior Counsel A.B.C. Appeals Board, Sacramento, for appellant A.B.C. Appeals Board.

Dodge & Evans, Robert P. Brorby, Oakland, amici curiae on behalf of appellant E. L. Ledger.

Johnston & Johnston, Willard S. Johnston, George H. Johnston, Benjamin H. Parkinsion, Jr., San Francisco, For Safeway Stores & Beverage Distributors.

Albert G. Evans, San Francisco, for respondent M. M. Koehn.

Edmund G. Brown, Atty. Gen., Charles A. Barrett, Deputy Atty. Gen., for State Board Equalization, Dept. of A.B.C.

BRAY, Justice.

The Alcoholic Beverage Control Appeals Board (hereafter referred to as Appeals Board) appeals from a superior court judgment ordering issuance of a writ of mandate commanding said Appeals Board to vacate its order reversing the order of the State Board of Equalization ¹ indefinitely suspending the beer and wine wholesale license of E. L. Ledger dba Ledger's Distributing Company and further ordering said Appeals Board to determine all issues left undecided on the appeal from the State Board's order. ²Record.

March 24, 1953, petitioner and respondent Koehn filed an accusation under section 40 of the Alcoholic Beverage Control Act (now section 24201, Business and Professions Code) charging Ledger with a violation of section 6(f) of the act (now Bus. and Prof.Code, § 23779) in failing to actually engage in a bona fide wholesale liquor business under his license in that he made no sales for a period in excess of 45 days other than to himself. July 24, the hearing officer filed a proposed decision in which he found the charge not true and recommended that the accusation be dismissed. August 20, the State Board adopted the proposed decision as its decision, ordering it to become effective September 21. September 10, Koehn filed a petition for reconsideration. September 17, the State Board postponed the effective date of its order of August 20 to October 13. September 30 Ledger filed objections to the petition. October 8, the State Board granted the petition for reconsideration and ordered the matter referred to the hearing officer for additional hearing. November 24, the petition was heard. The written stipulation of Koehn and Ledger was filed to the effect that Ledger had made no sales at wholesale of either beer or wine to any retail licensee during the period August, 1948, to date. February 26, 1954, the hearing officer submitted a proposed decision finding that Ledger had made no sales during the period charged and recommended that the accusation be dismissed with a warning. September 16, the State Board declined to adopt the proposed decision and determined to decide the case pursuant to the provisions of subdivision (c) of section 11517, Administrative Procedure Act. December 16, the State Board ordered that Ledger's license be suspended indefinitely until such time as he might engage in a bona fide wholesale business. The decision was to become effective January 17, 1955. The certificate of this decision is dated December 28. Ledger filed a petition for reconsideration. This was denied January 11. February 4, Ledger filed with the Appeals Board an appeal from the decision of the State Board raising three points: (1) Did the State Board have jurisdiction to make its decision of December 28, 1954? (2) Did it proceed in the manner required by law in rejecting the stipulation for continuance entered into by the adverse parties? (3) Was the State Board's itnterpretation of the effect of section 23779, Business and Professions Code (formerly § 6(f), A.B.C. Act) accurate? July 20, 1955, the Appeals Board held that the State Board did not have jurisdiction and reversed its decision solely on that ground, stating that it felt that it was unnecessary to pass upon the other two points. Koehn then filed in the superior court a petition for writ of mandate praying for an order vacating the order of the Appeals Board dismissing the indefinite suspension as made by the State Board and directing the State Board to revoke Ledger's license. The superior court judgment was as hereinbefore set forth.

Questions Presented.

1. Did the State Board have jurisdiction to order reconsideration 48 days after decision? This, in turn, depends upon the power of the State Board to order a stay.

2. Were the findings proper?

3. Is judicial review of the Appeals Board's acts limited to certiorari in the District Court of Appeal?

4. Did the Appeals Board exceed its jurisdiction?

5. Should this court decide issues not decided by the superior court or the Appeals Board?

1. Stay Order.

August 20, 1953, was the date of the decision of the State Board. It was to become effective September 21. October 8, the order granting reconsideration was made. This was approximately 48 days after the decision. Admittedly, unless there was a valid stay order in effect, the power to grant reconsideration expired September 21. This brings us to the validity of the stay order made September 17 postponing the effective date to October 13. Appellant contends that section 11521(a), Government Code, which provides for a stay for the purpose of filing an application for reconsideration, is not applicable for the reason that the order of September 17, postponing the effective date of the decision, cannot be a stay for the purpose of filing an application for reconsideration, because such an application was then on file.

It is the general rule that an administrative agency does not have the power to rehear or reopen its decision in the absence of statutory authority. Pacheco v. Clark, 1941, 44 Cal.App.2d 147, 153, 112 P.2d 67. Where that power is conferred by statute the agency must exercise the power in accordance with and in the mode prescribed by statute. 42 Am.Jur. 379; 73 C.J.S. Public Administrative Bodies and Procedure § 156, p. 492. In Moran v. State Board of Medical Examiners, 1948, 32 Cal.2d 301, 304, 196 P.2d 20, it was stated that the administrative agency's power to order reconsideration expired on the effective date of the decision as set by the agency.

Section 11521(a), Government Code, provides: 'The agency itself may order a reconsideration of all or part of the case on its own motion or on petition of any party. The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to respondent, or on the date set by the agency itself as the effective date of the decision if such date occurs prior to the expiration of the 30-day period or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration. If no action is taken on a petition within the time allowed for ordering reconsideration the petition shall be deemed denied.' (Emphasis added.)

Under this section, appellant concedes, had there not been an application for reconsideration on file, the State Board could at any time before the effective date of the decision, namely, September 17, have granted a stay of 30 days 'for the purpose of filing an application for reconsideration,' but as one was already on file before the effective date arrived, appellant contends that the board had no power to stay the order until the board could act upon such application. Such an interpretation would result in the absurd situation, that if one desiring reconsideration would withhold filing his petition the board could stay for 30 days the effective date of the decision, but if he filed such petition it could not and would have to determine his petition before the effective date of the order arrived. In interpreting section 11521(a) the following language is important: 'If no action is taken on a petition within the time allowed for ordering reconsideration the petition shall be deemed denied.' (Emphasis added.) Thus, the stay provided for is not jury to allow additional time for the filing of the petition but is also to allow additional time to consider it and to order reconsideration if deemed advisable. This would necessarily apply to a petition already filed as well as to one that was to be filed. This is the common sense construction of the statute. See 23 Cal.Jur. p. 736, § 113.

Applicable here is the following from Goldsmith v. Board of Education, 66 Cal.App. 157, 163, 225 P. 783, 785: 'It is a cardinal rule of statutory construction that, where the language of a statute is, upon its face, reasonably susceptible of either of two constructions, one which, in its application, will render it reasonable, fair, and just, and harmonious with its manifest purpose and another which, in its application, would be productive of absurd consequences, the former construction will be adopted.' Moreover, the construction of the statute by the State Board is entitled to weight. See Witkin, Summary of Cal. Law, p. 529; 23 Cal.Jur. p. 776, § 152.

2. Findings.

Appellant contends that in this type of proceeding findings are not required, and conversely that finding No. 7 to the effect that the postponement of the effective day of the decision was for the purpose of the State Board consideration the petition for reconsideration then on file is not supported by any evidence; also that finding No. 7 to the effect that the State Board did have jurisdiction to grant reconsideration is not a finding of fact but a conclusion of law.

It has been held that in a mandamus proceeding if there has been a trial upon questions of fact, findings are necessary unless waived. Delany v. Toomey, 111...