Walker v. City of San Gabriel

129 P.2d 349, 20 Cal. 2d 879, 142 A.L.R. 1383, 1942 Cal. LEXIS 347

• Court: California Supreme Court
• Decided: September 29, 1942
• Docket: L. A. 18350
• Status: Published

Opinions

SHENK, J.

The petitioner applied to the Superior Court in Los Angeles County for a writ of certiorari to annul an order of the city council of the respondent city of San Gabriel revoking his license to conduct an automobile wrecking business in that city. The trial court issued an alternative writ of mandamus as an appropriate step in the proceeding. Issue was joined by the respondents’ answer. After the introduction of oral and documentary evidence the respondents moved for a judgment of nonsuit, which was granted. The petitioner appealed. The following are the facts disclosed at the trial:

For thirteen years prior to January, 1941, the petitioner had conducted an automobile wrecking business in the city of San Gabriel. On the 22nd day of that month he received notice that the city council proposed to revoke his license to operate his business, and that January 28, 1941, was fixed as the time for a hearing. An ordinance of the city required the issuance of a license to engage in the business of automobile wrecking. It provided that such a license be issued and accepted with the understanding that the city council might revoke it upon being satisfied that any term or condition thereof had been violated or that the holder was an unfit person to be entrusted with the privilege granted by the license. It was expressly provided that before any license be revoked for any of the reasons stated the holder should be given an opportunity to be heard by notice in writing fixing the time for hearing.

On January 28, 1941, the time fixed in the notice, the petitioner appeared before the city council with his attorney, who informed the members of the council that “Mr. Walker stood ready, able and willing to produce evidence and testimony as to why his license should not be revoked, but should await the evidence of why it should be. ’ ’ Whereupon Police Officer Jorgensen read a letter addressed to the city pouncil and signed by the chief of police of the city. That letter set forth numerous charges against the petitioner, claimed to be violations of the ordinances of the city or otherwise deemed sufficient to justify a revocation of the license.

Thereupon the petitioner was asked if he had anything to say. His attorney replied that until the persons making the complaints were produced, and an opportunity given to cross-examine them, there was no evidence before the city council and nothing for the petitioner to refute. The city council offered to continue the hearing to a later date if the petitioner desired to introduce evidence on his own behalf. But the petitioner, through his attorney, declined to produce any witnesses until witnesses supporting the charges made by the chief of police had been produced and subjected to cross-examination. The city council thereupon revoked the petitioner’s license.

At the trial the sufficiency of the notice to rejvoke the license and of the fixing of the time for hearing was conceded by the petitioner. His principal contention then and now is that the city council acted arbitrarily and committed an abuse of its discretion when it revoked his license ripon hearsay evidence only.

Either certiorari or mandamus is an appropriate remedy to test the proper exercise of discretion vested in a local board. (Garvin v. Chambers, 195 Cal. 212 [232 Pac. 696]; Mann v. Tracy, 185 Cal. 272 [196 Pac. 484]; Dierssen v. Civil Service Commission, 43 Cal. App. (2d) 53 [110 P. (2d) 513]; Naughton v. Retirement Board of San Francisco, 43 Cal. App. (2d) 254 [110 P. (2d) 714].)

It is not contended that the provisions of the ordinance are not in conformity with the requirement of due process (see Carroll v. California Horse Racing Board, 16 Cal. (2d) 164 [105 P. (2d) 110], and cases cited). But it is claimed that the city council had no power to revoke the petitioner’s license without a showing of just cause, as defined by the ordinance, and that the letter from the chief of police, being hearsay only, did not constitute competent evidence that just cause existed.

It is well settled that a board commits an abuse of discretion when it revokes a license to conduct a legitimate business without competent evidence establishing just cause for revocation, and that hearsay evidence alone is insufficient to support the revocation of such a license. In Consolidated Edison Co. v. National Labor Relations Board, 305 U. S. 197 [59 S. Ct. 206, 83 L. Ed. 126], the Supreme Court of the United States observed at page 230 that the “assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. ’ ’ There must be substantial evidence to support such a board’s ruling, and hearsay, unless specially permitted by statute, is not competent evidence to that end. (See Englebretson v. Industrial Acc. Com., 170 Cal. 793 [151 Pac. 421]; Employers Assurance Corp. v. Industrial Acc. Com., 170 Cal. 800 [151 Pac. 423]; State Compensation Ins. Fund v. Industrial Acc. Com., 195 Cal. 174 [231 Pac. 996]; Smith v. Board of Police Commissioners, 1 Cal. App. (2d) 292 [35 P. (2d) 555, 36 P. (2d) 670]; Dyment v. Board of Medical Examiners, 93 Cal. App. 65 [268 Pac. 1073]; Thrasher v. Board of Medical Examiners, 44 Cal. App. 26 [185 Pac. 1006].)

There was no evidence before the city council on the hearing to revoke the petitioner’s license except the letter from the chief of police enumerating the charges against the petitioner. It was on that evidence alone that the council purported to revoke his license. The letter was competent only as a statement of the charges against the petitioner, but was not competent evidence of the truth of the charges stated therein. In the absence of competent proof of the charges against the petitioner the city council was without power to revoke his license and therefore abused its discretion in doing so.

The judgment is reversed.

Curtis, J., Carter, J., and Peters, J. pro tem., concurred.