Meade v. State Collection Agency Bd.

• Decision Date: 16 June 1960
• Docket Number: No. 18547,18547
• Citation: 5 Cal.Rptr. 486,181 Cal.App.2d 774
• Court: California Court of Appeals Court of Appeals
• Parties: Roy E. MEADE, Petitioner and Appellant, v. STATE COLLECTION AGENCY BOARD of the State of California, Defendant and Respondent.

Page 486

5 Cal.Rptr. 486

181 Cal.App.2d 774

Roy E. MEADE, Petitioner and Appellant, v. STATE COLLECTION AGENCY BOARD of the State of California, Defendant and Respondent.

No. 18547.

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

June 16, 1960.

Aaron Vinkler, Cyril Viadro, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., by Wiley W. Manuel, Deputy Atty. Gen., for respondent.

PAULSEN, Justice pro tem.

This is an appeal from a judgment denying petitioner a peremptory writ of mandate in a proceeding in which he sought to compel respondent to reconsider its order revoking his license to conduct a collection agency.

In April 1957 an accusation was filed against appellant charging him with nine violations of laws and rules relating to collection agencies. He was found guilty of eight. They may be summarized as follows:

Count I. He refused to permit inspection of his books and records by respondent's agents. Count II. He wilfully filed three false semi-annual statements. Count III. He represented to a customer that a claim had been settled for $1,000 when in fact he had accepted cash and a promissory note aggregating $1,975.88. Count IV. He had failed to report to the customer mentioned in count III all payments received and had failed to send him payments. Count V. He had failed to maintain certain business records required of collection agencies after similar failures had repeatedly been called to his attention. Count VI. He had illegally practiced law by permitting his employees to prepare petitions and schedules in bankruptcy proceedings. Count VII. He had failed to maintain sufficient funds in his trust account to pay all money due and payable to his customers. Count VIII. He had made payments to persons other than his customers out of his trust account.

Appellant concedes that each count charged a violation of law or of an administrative rule and that the evidence was sufficient to support the findings. He states: 'Our position on this appeal is (1) that petitioner was in effect punished twice for the same offense (or, to be more accurate, that he was punished as if he had been guilty of eight separate violations of the rules governing collection agencies when, in fact, he was guilty at most of four or perhaps five such violations), (2) that, under the circumstances, the drastic penalty imposed upon him (revocation of his license) was an abuse of the Board's discretion and (3) that the matter should accordingly be returned to the Board for a reconsideration of the penalty.'

Counts III and IV illustrate appellant's point. The facts alleged in each of those counts, standing alone, constituted a violation but both related to his dealings with the same customer. It also appears that there may have been a similar situation in the counts dealing with records. In view of appellant's admission that there was sufficient evidence to support the findings as to at least four or five separate counts, we need not examine the record to determine whether the correct number was four or eight, unless the criminal law of included offenses is applicable and was applied so as to prejudice appellant's rights.

Appellant relies on People v. Logan, 41 Cal.2d 279, 290, 260 P.2d 20, where the court held that the defendant, who had taken his victim's purse after striking her with a baseball bat, could not be punished both for assault with a deadly weapon and for robbery; and on People...