MOSK, J., Concurring and Dissenting. I concur with the result reached by the majority, but disagree with their opinion that the Public Utilities Commission (PUC) may declare a duly enacted statute unconstitutional. Absent authorization in the state charter itself, such formidable action is beyond the power of any administrative agency. Indeed, it is incongruous for the will of the people of the state, reflected by their elected legislators, to be thwarted by a governmental body which exists only to implement that will.
Case law is sparse in this area because administrative agencies are understandably reluctant to assert the power to hold statutes unconstitutional, and accordingly the question rarely is resolved in court. (Davis, Administrative Law Treatise (1958) § 20.04, p. 74, fn. 1 (hereinafter Davis).) What precedent there is, however, lends but scant support to the assertion of authority by the PUC.
In Walker v. Munro (1960) 178 Cal.App.2d 67 [2 Cal.Rptr. 737], the Court of Appeal suggested that an administrative agency may declare a [316]statute unconstitutional; but Walker was indirectly criticized and implicitly disapproved in State of California v. Superior Court (1974) 12 Cal.3d 237, 250-251 [115 Cal.Rptr. 497, 524 P.2d 1281], In the latter case, a litigant sought to challenge in court the constitutionality of the Coastal Zone Conservation Act without first exhausting its administrative remedies by raising the issue before the Coastal Zone Conservation Commission. We held that the constitutional issue was raised in a timely manner under the circumstances, noting that “since an administrative agency is not the appropriate forum in which to challenge the constitutionality of the basic statute under which it operates, there seems little reason to require a litigant to raise the constitutional issue in proceedings before the agency as a condition of raising that issue in the courts.” (Id. at p. 251.) (See also Flores v. Los Angeles Turf Club (1961) 55 Cal.2d 736 [13 Cal.Rptr. 201, 361 P.2d 921] (ruling on the merits of a litigant’s constitutional attacks on a statute, while holding that his other contentions should have been pursued through administrative channels).)1
The United States Supreme Court, on at least three occasions, has considered whether an administrative agency has the power to declare a statute unconstitutional. In each instance, the high court has concluded, as in Davies Warehouse Co. v. Bowles (1944) 321 U.S. 144, 153 [88 L.Ed. 635, 642, 64 S.Ct. 474], that “State statutes, like federal ones, are entitled to the presumption of constitutionality until their invalidity is judicially declared. Certainly no power to adjudicate constitutional issues is conferred on the Administrator.” (Accord, Johnson v. Robison (1974) 415 U.S. 361, 368 [39 L.Ed.2d 389, 398, 94 S.Ct. 1160]; California Comm’n. v. United States (1958) 355 U.S. 534, 539 [2 L.Ed.2d 470, 475, 78 S.Ct. 446] (a decision involving the California Public Utilities Commission); see also Oestereich v. Selective Service Bd. (1968) 393 U.S. 233, 242 [21 L.Ed.2d 402, 408-409, 89 S.Ct. 414] (Harlan, J., concurring).) In other jurisdictions, the conclusion is virtually unanimous that administrative agencies lack the powers appropriated in this case. (Metcalf v. Swank (7th Cir. 1971) 444 F.2d 1353, 1356; New York State Broadcasters Assn. v. United States (2d Cir. 1969) 414 F.2d 990, 994; Central Nebraska Pub. P. & I. Dist. v. Federal Pow. Comn. (8th Cir. 1947) 160 F.2d 782, 783; Todd [317]v. Securities and Exchange Commission (6th Cir. 1943) 137 F.2d 475, 478; Panitz v. District of Columbia (D.C.Cir. 1940) 112 F.2d 39, 41-42 [72 App.D.C. 131]; United States v. Branigan (S.D.N.Y. 1969) 299 F.Supp. 225, 235; Reed v. Gardner (C.D.Cal. 1966) 261 F.Supp. 87, 92; Schwartz v. Essex County Board of Taxation (1942) 129 N.J.L. 129 [28 A.2d 482, 484]; East Ohio Gas Co. v. Public Utilities Commission (1940) 137 Ohio St. 225 [18 Ohio Ops. 10, 28 N.E.2d 599, 606]; State v. State Board of Equalizers (1922) 84 Fla. 592 [94 So. 681, 30 A.L.R. 362]; contra, Commonwealth v. Atlantic Coast Line R. Co. (1906) 106 Va. 61 [55 S.E. 572].)2 Professor Davis agrees: “Only the courts have authority to take action which runs counter to the expressed will of the legislative body.” (Davis, at § 20.04, p. 74.)
Pitted against this impressive array of authority is the majority’s cursory assertion (ante, p. 311, fn. 2) that because the PUC has been granted a broad range of responsibilities, some of which they classify as “judicial,” it necessarily follows that the commission has the power to declare a statute unconstitutional. This rationale is bottomed on the debatable premise that any and all “judicial power” inherently entails the authority to declare a law unconstitutional. Parenthetically it can be noted that following the United States Supreme Court’s landmark decision in Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137 [2 L.Ed. 60], the nation survived for 54 years before the high court again struck down a congressional enactment. (Dred Scott v. Sandford (1857) 60 U.S. (19 How.) 393 [15 L.Ed. 691]; 1 Freund, Constitutional Law (3d ed. 1967) p. 24.) Moreover, it is not uncommon for an agency to be granted some judicial or quasi-judicial powers but not others. That this commission is for some purposes deemed to be a judicial agency is not the answer to our problem, but rather a starting point in our consideration.
It cannot be denied that the commission is granted extensive powers by the Constitution. Under article XII, section 6, “The commission may fix rates, establish rules, examine records, issue subpenas, administer oaths, take testimony, punish for contempt, and prescribe a uniform system of accounts for all public utilities subject to its jurisdiction.” In addition, the Legislature has plenary power, consistent with article XII, to increase the powers of the commission. (Cal. Const., art. XII, § 5.)
[318]From these broad grants it can readily be understood why this court has declared that the commission appears to exercise judicial power. (See, e.g., People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 630-632 [268 P.2d 723].) The power may be classified into two categories. First, the Constitution has expressly granted some powers to the commission generally exercised only by courts, such as the power to punish for contempt. Second, the commission must act judicially in order to perform the responsibilities expressly granted to it by the Constitution and the Legislature: for example, in fixing rates for a carrier or a utility, the commission, by necessity, holds a hearing, takes testimony, and makes a decision adjudicating the rights of that party. But in either case the judicial power of the commission is derived from and circumscribed by the same source: the Constitution. An attempt to exercise judicial power in a manner neither expressly nor impliedly sanctioned by the Constitution would offend the doctrine of separation of powers as provided in article III, section 3: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”
Our task then becomes to ascertain whether the exercise by an administrative agency of the exclusively judicial power to invalidate a statute is expressly or impliedly permitted by the Constitution. Clearly, there is no express authorization for such an assertion of power. Nor is it immediately apparent that such power can be inferred from other express constitutional or legislative authorizations. Certainly, the right to undertake a constitutional review is not necessary in order for this commission to satisfy its primary obligation: to regulate utilities and carriers. No reason has been suggested why the commission cannot perform its duties while adhering to legislative guidelines.
It may be argued that the constitutional review power can be inferred from the oaths commissioners must take to obey the Constitution: if a commissioner swears to obey the Constitution, according to this argument, then he cannot be expected to enforce a law believed to be unconstitutional.
The contention is twice flawed. First, every public official in the state takes a similar oath to uphold the Constitution, including notaries public, city councilmen and county supervisors. Few in those categories have [319]ever maintained the right to declaim on constitutionality. Second, and more fundamentally, the proposition erroneously equates the duty of a commissioner to uphold the Constitution with an asserted “duty” to declare laws with which he is unsympathetic to be unconstitutional. A commissioner faithfully upholds the Constitution by complying with the mandates of the Legislature, leaving to courts the decision whether those mandates are invalid. The oath of office to obey the Constitution requires obedience to the Constitution not as self-indulgently defined by the commission, but as interpreted by objective judicial tribunals. (See Barr v. Watts (Fla. 1953)70 So.2d 347, 351.)
A related contention is that the commission, within its jurisdiction, must decide cases, and in order to do so must interpret all applicable law. If two statutes seemingly conflict on a point, the commission, consistent with statutory interpretation guidelines, must decide which to apply. Similarly, when a statute conflicts with the Constitution the commission must apply the latter.
Although this contention is superficially plausible, on closer examination it is no more than a variation of the majority’s rationale that because the commission exercises certain judicial powers it necessarily has the right to declare a law unconstitutional. Certainly, in order to decide individual cases the commission must apply relevant law. But it by no means follows that applying “relevant law” includes declaring statutes unconstitutional. To the contrary, the implication is that cases are to be decided simply by applying statutory law, with questions of unconstitutionality to be resolved by the courts.
In short, it appears that no constitutional authority, express or implied, can be found in support of the PUC’s assertion of power. This alone leads to a conclusion that the commission’s act was ultra vires, but because of the importance of the issue it may be useful to explore underlying policy arguments sometimes advanced in an effort to justify the exercise of constitutional review by an administrative agency.
It may be urged that administrative agencies must be granted such power in order to avoid injustice in some cases. Obsolete and patently unconstitutional laws remain on the statute books, and according to this argument they should be removed by the governmental body with the first opportunity to do so. This is particularly desirable with regard to the [320]PUC, because the commission’s decisions may be reviewed only by this court.
It is true that if the commission lacks constitutional review power, an invalid statute will remain in effect during the interval between the PUC decision and this court’s reviewing opinion. But on the other hand a time lag' will also occur when the commission, as in the present case, erroneously declares a law unconstitutional: during the period before this court reverses the commission, legislation duly enacted by the representatives of the people of California will not be enforced. (Panitz v. District of Columbia (D.C.Cir. 1940) supra, 112 F.2d 39, 41; Barr v. Watts (Fla. 1953) supra, 70 So.2d 347, 351.) The question,, accordingly, is which time lag is the less undesirable: a period during which an unconstitutional law remains effective prior to court review, or a delay during which a valid legislative measure is rendered inoperative.
In a developing nation groping toward a constitutional form of government, the question might be debatable. But in our established democracy the resolution is not difficult. Laws passed by a legislature represent the will of the people, and courts in a democratic society are understandably reluctant to nullify that will. Consequently, in California as in all American jurisdictions, not only do courts presume that statutes are constitutional until clearly proven otherwise, but they normally will not decide constitutional challenges unless the responsibility is unavoidable. (Marin Municipal Water Dist. v. Dolge (1916) 172 Cal. 724, 726 [158 P. 187]; Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 5-6 [97 Cal.Rptr. 431].) When a court exercises such restraint, a statute of questionable validity may remain effective until revised by the Legislature or struck down in a later case in which the constitutional issue is unavoidable. But the belief is implicit ip our system that any adverse effects of such a delay are less harmful than the consequences of a court’s precipitous and erroneous decision that a statute is unconstitutional. A fortiori, the delay caused by an administrative agency’s inability to render a decision on the constitutionality of a statute is preferable to the situation created by an erroneous administrative nullification of a legislative act.
In addition, practical considerations militate against the grant of constitutional review power. When an administrative agency invalidates a statute, “the people (represented by the agency) are without a remedy. The agency has no standing to appeal to the courts since it made the [321]decision. The legislature is powerless to correct the error. One can imagine the Legislature enacting a statute to the effect that the ‘first statute is constitutional.’ ” (Coan, May a Hearing Officer Declare a State Law to be Unconstitutional (1967) 4 Admin.L.Bull. 2, 3.)
This situation might also arise, of course, when a civil court, deciding litigation between private parties invalidates a statute. Yet when a court undertakes constitutional review, there is reasonable assurance that it is aware of the gravity of its task. In order to qualify for service on the superior court or the appellate courts of this state, a person must have at least 10 years’ experience as an attorney. (Const., art. VI, § 15.) In sharp contrast, there is no requirement that PUC commissioners have a law education or legal experience, and few do.3 Certainly attorneys have no monopoly on wisdom, but a person trained for three or more years in a college of law and then tempered with at least a decade of experience within the judicial system is likely to be far better equipped to make difficult constitutional judgments than a lay administrator with no background in the law. Not only is a lawyer more apt to be intellectually prepared to decide constitutional questions, he is likely to be more disposed to exercise judicial restraint. It cannot seriously be disputed that judges, for all their individual faults, are more able than PUC commissioners, for all their individual virtues, to decide whether a law is unconstitutional. (See Davis, § 30.09, at p. 241.)
In summary, the action of the PUC cannot be justified from either a constitutional or policy standpoint. Declaring a statute unconstitutional “represents the highest exercise of judicial power and one even the judiciary is reluctant to exercise.” (Panitz v. District of Columbia (D.C.Cir. 1940) supra, 112 F.2d 39, 41.) Our traditional reluctance to invoke the most awesome power in the spectrum of the judicial process should induce us to resist its assertion by a lay commission, which, for all its trappings of authority, is simply not a court of law.
Sullivan, J., concurred.
This court has had at least one opportunity to reach the issue herein directly, but has declined to do so. In Decision No. 64151, 60 P.U.C. 125, the commission concluded it had the authority to declare legislative acts unconstitutional. This court, reviewing the decision, upheld the conclusion of the PUC that the statute in question was constitutional, but did not address the issue of the commission’s underlying power. (Los Angeles Met. Transit Authority v. Public Util. Com. (1963) 59 Cal.2d 863 [31 Cal.Rptr. 463. 382 P.2d 583].)
In the cited cases the question generally arose in the course of deciding whether a party was precluded from raising a constitutional issue because of failure to pursue the claim before an administrative agency.
While the PUC has a staff of attorneys to assist in the preparation of opinions, it is the commissioners, not the staff attorneys, who must make the final decisions.