G-IBSON, C. J., Dissenting. — I dissent.
The majority opinion in this case is the culmination of a series of decisions in which this court, since 1936, has over[849]turned long established rules in the field of administrative law. The constitutional principles announced by the majority will vitally impair the effectiveness of many administrative agencies upon which we rely for the expert conduct of the complex affairs of state government. It follows from this decision that a state-wide administrative agency is without power to make a binding determination of fact affecting rights of property and that any act of the legislature conferring such authority is unconstitutional. It is held here that, although such an agency is vested with statutory authority to revoke professional licenses, there is a constitutional requirement that after hearing and determination by the administrative board the entire matter must be tried anew in a court of law. The conclusion that the petitioner in this case is entitled to a trial de nova means, in the language of the author of the majority opinion as expressed in another case, ‘ a new hearing, or a hearing the second time . . . Such a hearing contemplates an entire trial of the controversial matter in the same manner in which the same was originally heard. It is in no sense a review of the hearing previously held, but is a complete trial of the controversy, the same as if no previous hearing had ever been held.” (Collier & Wallis v. Astor, 9 Cal. (2d) 202, 205 [70 Pac. (2d) 171].)
Prior to 1936 it was established by a great many cases that where a state-wide board was given the power to revoke professional licenses for cause and where the supervision of the courts extended only to an inquiry as to whether the board had regularly pursued its authority, there was no violation of the provisions of the Constitution. (Suckow v. Alderson, 182 Cal. 247 [187 Pac. 965]; Brecheen v. Riley, 187 Cal. 121 [200 Pac. 1042]; State Board, etc. v. Superior Court, 201 Cal. 108 [255 Pac. 749]; Bold v. Board of Medical Examiners, 133 Cal. App. 23 [23 Pac. (2d) 826]; Gustason v. Board of Osteopathic Examiners, 10 Cal. App. (2d) 436 [51 Pac. (2d) 1106].) In this regard it seems very significant that although many professional licenses have been revoked in this state by administrative boards under statutory authorization, our attention has not been called to a single instance in which a trial de nova has been had before a court. -
The constitutional doctrines which find their ultimate expression in the present ease originated in two erroneous decisions of this court, one in the procedural field in 1936 and the other in the field of constitutional law in 1939. Both de[850]cisions have been subjected to severe criticism by experts in this field of the law. In the first of these cases, Standard Oil Co. v. State Board of Equalization, 6 Cal. (2d) 557 [59 Pac. (2d) 119], decided in 1936, it was held that the writ of certiorari would no longer lie to review the quasi-judicial acts of state-wide administrative agencies in California. (See criticism in Bode,' Administrative Adjudication in California cmd Its Review by the Writ of Certiorari, (1937) 25 Cal. L. Rev. 694; Turrentine,-Restore Certiorari to Review State-Wide Administrative Bodies in California, (1941) 29 Cal. L. Rev. 275; Gellhorn, Administrative Law — Cases and Comments, (1940) p. 819, n.) The second case, Drummey v. State Board of Funeral Directors, 13 Cal. (2d) 75 [87 Pac. (2d) 848] decided in 1939, held that the writ of mandate could be used to review the orders of professional licensing boards and thus fill the procedural gap caused by the refusal to permit the use of certiorari for this purpose. The reinstatement on mandamus of professional licenses suspended by the State Board of Funeral Directors was sustained, and it was held that the trial court was required under the state and federal Constitutions to exercise its independent judgment upon the facts as well as upon the law. This constitutional doctrine, obviously contrary to the former decisions in this state, was explained in McDonough v. Goodcell, 13 Cal. (2d) 741, 752 [91 Pac. (2d) 1035, 123 A. L. R. 1205], as having resulted from recent decisions of the United States Supreme Court which appeared to make such a conclusion “mandatory”. (See, criticism in McGovney, Administrative Decisions and Court Review Thereof, im, California, (1941) 29 Cal. L. Rev. 110.)
This case is not the first in which an opportunity has been presented to correct the error in the Standard Oil and Drummey cases. So long as the issue remained primarily one of procedure, however, there was no irreparable damage which required that the judicial error involved in those decisions be rectified. While it was possible, by use of the writ of mandate, to review the acts of state-wide administrative bodies and accord the findings of such bodies a substantial degree of finality, it appeared that the substantive evils resulting from the procedural error might be eliminated in time. (Cf. Bodinson Mfg. Co. v. California Emp. Com., 17 Cal. (2d) 321 [109 Pac. (2d) 935]; Webster v. Board of Dental Examiners, 17 Cal. (2d) 534 [110 Pac. (2d) 992]; Olive Proration etc. Com. [851]v. Agricultural etc., Com., 17 Cal. (2d) 204 [109 Pac. (2d) 918].) The majority opinion in the present case, however, enunciates a doctrine of constitutional law which can be corrected only by a reversal of the decision or by constitutional amendment. The present holding goes far beyond the rule laid down in Drummey v. State Board of Funeral Directors, supra, although that fact is not immediately discernible from the face of the opinion. The Drummey case did not require a trial de nova by the court, but spoke of an independent judgment on the facts. This independent judgment, which was presumably to be exercised with reference to the evidence produced before the board, was tempered with the cautionary instruction that the board’s findings were to be given a “strong presumption of correctness.” (Drummey v. State Board of Funeral Directors, supra, p. 85; cf. McGovney, op. cit. supra, p. 129, et seq.) Under the trial de nova rule of the present case, however, no finality whatever is to be attributed to the findings of state-wide administrative agencies. This requirement of a trial de nova, based upon the rigid foundations of our Constitution, can no longer be said to affect matter of procedure only. We find it necessary, therefore, to trace the successive steps which the court has followed in reaching its present position.
1. The Procedural Problem.
In Standard Oil' Company v. State Board of Equalization, supra, it was held that the writ of certiorari could no longer be used in this state as a means of reviewing the acts of statewide administrative bodies, notwithstanding express statutory authorization therefor. Without discussing the nature of the particular act involved (in that ease the assessment of an additional tax), the court decided that the action of the board could not have been judicial in nature because article VI, section 1 of the Constitution vests all judicial power’ in certain specified courts. Furthermore, it was said, the writ of certiorari may be used to review judicial power only and, that being so, it could not be used to review the act of the Board of Equalization in assessing an additional tax. This decision was soon followed by others which held that the judicial power was not involved in the revocation of a professional license by a state-wide agency (Whitten v. California State Board of Optometry, 8 Cal. (2d) 444 [65 Pac. (2d) 1296, 115 A. L. R. 1]; Hartman v. Board of Chiropractic Examiners, 20 Cal. App. (2d) 76 [66 Pac. (2d) 705]; Jacobs v. Board of Dental [852]Examiners, 24 Cal. App. (2d) 359 [75 Pac. (2d) 96]) nor in the suspension by the Commissioner of Corporations of a permit authorizing the sale of stock. (Schwab-Wilson M. Corp. v. Daugherty, 15 Cal. App. (2d) 701 [59 Pac. (2d) 1057].) Since these duties were said not to involve an exercise of judicial power, it was held that neither the writ of certiorari nor the writ of prohibition was available to review such acts. None of these eases suggest that the statutes vesting this kind of power in state-wide boards are unconstitutional. Bather, they characterize the power exercised as “administrative” in nature, and hold that the inapplicability of certiorari and prohibition to review administrative orders is caused by the limited nature of these writs.
From the procedural point of view alone, this conclusion is contrary to the weight of authority both in California and elsewhere. There are many cases where the writ of certiorari has been used to review orders of state-wide administrative agencies whose power, while quasi-judicial in nature, was not the basic judicial power vested by the Constitution in courts of law. These cases include assessments of taxes made by the State Board of Equalization as well as orders revoking professional licenses. (San Francisco & N. P. R. R. v. State Board of Equalization, 60 Cal. 12; Suckow v. Alderson, supra; Brecheen v. Riley, supra; see, Rode, op. cit. supra, p. 695, et seq.; Turrentine, op. cit. supra, p. 280, et seq.; McGovney, op. cit. supra, pp. 114, 146, et seq.) Furthermore, it has long been recognized that, of all the extraordinary common law writs, certiorari is the one best adapted to review the acts of boards, tribunals and officers which exercise quasi-judicial power, although concededly such bodies cannot constitutionally exercise the basic judicial power of courts of law. (14 C. J. S. 142; 10 Am. Jur. 534; 77 A. L. R. 1357; McGovney, op. cit. supra, p. 147.) Until the Standard Oil case in 1936, this was the established doctrine in California as well as in the rest of the nation. The effect of that decision and the ones which followed it was to limit certiorari and prohibition to a review of the orders of courts of law. This conclusion as to the nature of certiorari is not supported by the holdings of the cases cited. The two cases relied upon most heavily in the Standard Oil case are Tulare Water Co. v. State Water Com., 187 Cal. 533 [202 Pac. 874] and Department of Pub. Works v. Superior Court, 197 Cal. 215 [239 Pac. 1076]. In each of these cases the court held that a statutory proceeding [853]before a state-wide administrative agency in which no formal hearing was authorized, in which no notice to opposing parties was provided, and in which the procedure did not contemplate the adjudication of any rights, was merely for the guidance of the agency in issuing a preliminary permit. (Tulare Water Co. v. State Water Com., supra, p. 537; Dept. of Pub. Wks. v. Superior Court, supra, p. 221.) Since the proceeding had no judicial aspect, either quasi-judicial or otherwise, it was obviously not a case in which certiorari would lie. The decision in the Standard Oil case, however, draws a far different conclusion from certain language of Chief Justice Shaw, concurring in the Tulare Water Company case. In addition to the fact that this language was not the basis for the decision in that case, it did not mean that certiorari could only be used to review an exercise of constitutional judicial power, as the Standard Oil case interpreted it to mean. (Turpentine, op. cit. supra, p. 283.) Chief Justice Shaw himself said shortly before the Tulare case, ‘ It must be conceded that the power given to the board to revoke or suspend the license of a person duly admitted to practice medicine ... is judicial in its nature . . . That a board or tribunal so authorized exercises at least quasi-judicial power in so doing is well established by our decisions. The judicial function is to decide on the property or rights of the citizen . . . The determination that plaintiff was guilty and that his right to practice should be suspended comes clearly within the scope of these definitions. Nevertheless it is now well established in this state that tribunals such as the boa/rd of medical examiners . . . are not courts in the strict sense; they are not exercismg ‘the judicial power of the state’ as that phrase is used in the constitution . . . and that the statutes creating such boards and conferring upon them such powers are constitutional. . . It is also settled that where a board has exercised quasi-judicial power of the nature of that here in question, its decisions are subject to revision by way of certiorari.” (Suckow v. Alderson, supra, pp. 249-250.)
On the procedural point, therefore, the conclusion reached in the Standard Oil case that certiorari will lie only to review the exercise of true judicial power by courts of law is erroneous. The cases therein cited hold that if it appears that the particular act sought to be reviewed does not involve any judicial or quasi-judicial functions whatsoever, certiorari will not lie. This recognized principle is far from the rule of the [854]Standard Oil case that only the exercise of constitutional judicial power can be reviewed upon certiorari and that the quasi-judicial acts of state-wide administrative boards can not be reviewed by this traditional procedure.
2. The Constitutional Problem.
It was immediately recognized that if the holding in the Standard Oil case could be confined solely to matters of procedure, no irreparable damage had been done since the customary kind of judicial review might be provided in some other way. (Cf. Rode, op. cit. supra, pp. 702-703.) A substitute procedure was, in fact, created by this court when it sanctioned the use of the writ of mandate in cases formerly reviewed by the writ of certiorari. (Whitten v. Calif. State Board of Optometry, supra.) So long as it was possible, by use of the writ of mandate, to evolve a proper relationship between the courts and administrative agencies, it did not seem essential to insist upon. a return to the historically correct procedure from which the court had strayed. (Cf. Bodinson Mfg. Co. v. California Emp. Com., supra.)
(a) The constitutional theories residting from the Standard Oil decision.
The procedural error of the Standard Oil case, however, soon led to the announcement of erroneous principles of constitutional law. Citing the Standard Oil case, which dealt with the nature of certiorari and not with the constitutionality of a delegation of quasi-judicial power, it was said for the first time in Whitten v. California State Board of Optometry, supra, p. 446, that it would be unconstitutional to confer quasi-judicial power upon state-wide administrative agencies. Consequently, the powers which such boards exercised could no longer be called quasi-judicial. (See, criticism of this reasoning in McGovney, op. cit. supra, p. 114; see, also, opinion of Supreme Court on denial of hearing, Cullinan v. Superior Court, 24 Cal. App. (2d) 468, 475 [75 Pac. (2d) 518, 77 Pac. (2d) 471].) It should be noted, at this point, that the Standard Oil case itself approved language which refers to these functions as quasi-judicial in nature. (Standard Oil Co, v. State Board of Equalization, supra, p. 563.) Instead of declaring the statutes vesting quasi-judicial functions in statewide administrative boards to be unconstitutional, however, the court undertook to bring these statutes within the new constitutional doctrines by altering the nature of the duties delegated to such boards by the legislature. Thus, despite a clear indication that the legislature intended a certain degree [855]of finality to attach to the quasi-judicial acts of administrative agencies, this court, under asserted constitutional compulsion, as will be seen later, has successively reduced that finality so as to make the duties of such boards ministerial, rather than quasi-judicial, in nature. The statement in the Whitten and Cullinan cases to the effect that a professional board does not and can not act quasi-judicially in revoking a license is both contrary to authority and unsupported by the only case relied upon, the Standard Oil case. That case does not invalidate the delegation of such power or classify it, except to say that these boards do not exercise the constitutional judicial power asserted therein to be required for the issuance of a writ of certiorari.
(b) Reliance upon the requirements of the federal Constitution.
In the next step, which was taken in the Drummey case, it was held that upon a writ of mandate the reviewing court was constitutionally required to exercise an independent judgment on the facts. In part, this conclusion rested upon the language in the Whitten case concerning quasi-judicial functions, but the main ground for the decision was the asserted requirement of the due process clause of the federal Constitution. (See, Drummey v. State Board of Funeral Directors, supra, p. 85; McDonough v. Goodcell, supra, p. 752.) The former doctrine will be examined in detail in connection with the majority opinion in the present ease, but the discussion at this point will serve to demonstrate the mistaken reliance upon certain federal cases in the Drummey and McDonough cases. The formula laid down in the Drummey case was “independent judgment on the facts. ’ ’ This theory, which had no prior existence in California, was taken literally from the language of the United States Supreme Court in St. Joseph Stockyards Co. v. United States, 298 U. S. 38, 52 [56 S. Ct. 720, 80 L. Ed. 1033.] Two other federal cases were also cited Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 [40 S. Ct. 527, 64 L. Ed. 908]; and Crowell v. Benson, 285 U. S. 22 [52 S. Ct. 285, 76 L. Ed. 598]. The conclusion drawn from these cases was that the due process clause of the Fourteenth Amendment to the federal Constitution required the state courts to re-examine the evidence upon which administrative boards had acted in suspending a professional license.
In reaching this conclusion the decision in the Drummey [856]case ignored the general rule followed in the federal system which makes administrative findings of fact conclusive if supported by substantial evidence. (Finality on fact of value in an eminent domain proceeding: Bauman v. Ross, 167 U. S. 548, 593 [17 S. Ct. 966, 42 L. Ed. 270]; see, Crane v. Hahlo, 258 U. S. 142, 148 [42 S. Ct. 214, 66 L. Ed. 514]. Finality as to value for assessment of duty on imported goods: Hilton v. Merritt, 110 U. S. 97, 107 [3 S. Ct. 548, 28 L. Ed. 83]; Bartlett v. Kane, 16 How. [U. S.] 263 [14 L. Ed. .931]. Finality for tax purposes: Murray’s Lessee v. Hoboken Land & Imp. Co., 18 How. [U. S.] 272 [15 L. Ed. 372]; Helvering v. Rankin, 295 U. S. 123, 131 [55 S. Ct. 732, 79 L. Ed. 1343]; Phillips v. Commissioner of Internal Rev., 283 U. S. 589, 600 [51 S. Ct. 608, 75 L. Ed. 1289]. Finality on matters of fact in an alien deportation proceeding: United States ex rel. Tisi v. Tod, 264 U. S. 131, 133 [44 S. Ct. 260, 68 L. Ed. 590]. Finality in assessment of penalty for violation of immigration law by a shipping company: Lloyd Sabaudo Soc. v. Elting, 287 U. S. 329, 335 [53 S. Ct. 167, 77 L. Ed. 341]. Conclusive "determination of facts in the field of governmental regulation: Interstate Com. Com. v. Union Pac. R. R. Co., 222 U. S. 541, 547 [32 S. Ct. 108, 56 L. Ed. 308]; Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 444 -50 S. Ct. 220, 74 L. Ed. 524]; Swayne & Hoyt. Ltd., v. United States, 300 U. S. 297, 304 [57 S. Ct. 478, 81 L. Ed. 659]; Del Vecchio v. Bowers, 296 U. S. 280, 286 [56 S. Ct. 190, 80 L. Ed. 229]; Voehl v. Indemnity Insurance Co., 288 U. S. 162, 166 [53 S. Ct. 380, 77 L. Ed. 676, 87 A. L. R. 245]; Consolidated Edison Co. v. National Labor Relations Board, 305 U. S. 197, 229 [59 S. Ct. 206, 83 L. Ed. 126]; Federal Trade Com. v. Algoma Lumber Co., 291 U. S. 67, 73 -54 S. Ct. 315, 78 L. Ed. 655]; Federal Radio Com. v. Nelson Bros., etc. Co., 289 U. S. 266, 277 [53 S. Ct. 627, 77 L. Ed. 1166, 89 A. L. R. 406].) The due process clause of the federal Constitution imposes no barrier to this general rule of administrative finality as to findings of fact. (See Black, ‘Jurisdictional Fact’ Theory and Administrative Finality, [1937] 22 Cornell L. Q. 349, 369; Tollefson, Administrative Finality, [1931] 29 Mich. L. Rev. 839, 840; Landis, Administrative Law and the Courts, [1938] 47 Yale L. J. 519; [1925] 23 Mich. L. Rev. 233; [1938] 24 Va. L. Rev. 653, 655; [1941] 8 Geo. Wash. L. Rev. 409, 508.)
[857]The conclusion is inevitable that the due process clause of the Fourteenth Amendment imposes no restriction on the action of the states which the due process clause of the Fifth Amendment, does not impose upon the federal government. There are, in fact, decisions of the United States Supreme Court (not mentioned in the Drummey decision) which hold that the due process clause of the Fourteenth Amendment does not prohibit the vesting of power in a state administrative agency to make findings of fact which are final if based upon substantial evidence. (Helfrick v. Dahlstrom Metallic Door Co., 256 N. Y. 199 [176 N. E. 141], affirmed per curiam, 284 U. S. 594 [52 S. Ct. 202, 76 L. Ed. 511]; see, also Hardware Healers’ Mut. Fire Ins. Co. v. Glidden Co., 284 U. S. 151, 157-158 [52 S. Ct. 69, 76 L. Ed. 214]; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685 [17 S. Ct. 718, 41 L. Ed. 1165]; Louisville & Nashville R. R. Co. v. Garrett, 231 U. S. 298, 313 [34 S. Ct. 48, 58 L. Ed. 229]; Reetz v. Michigan, 188 U. S. 505, 507-509 [23 S. Ct. 390, 47 L. Ed. 563]; State ex rel. Williams v. Whitman, 116 Fla. 196, 199 [150 So. 136, 156 So. 705, 95 A. L. R. 1416]; Stettler v. O’Hara, 69 Ore. 519 [139 Pac. 743, Ann. Cas. 1916A, 217, L. R. A. 1917C, 944], affirmed, 243 U. S. 629 [37 S. Ct. 475, 61 L. Ed. 937]; People ex rel. Lieberman v. Van de Carr, 175 N. Y. 440, 445 [67 N. E. 913, 108 Am. St. Rep. 781], affirmed, 199 U. S. 552, 562 [26 S. Ct. 144, 50 L. Ed. 305]; Nega v. Chicago Rys. Co., 317 Ill. 482 [148 N. E. 250, 39 A. L. R. 1057]; People ex rel. Consolidated Water Co. v. Maltbie, 275 N. Y. 357 [9 N. E. (2d) 961]; General Acc. F. & L. Assur. Corp. v. Industrial Com., 223 Wis. 635 [271 N. W. 385] ; see, 21 R. C. L. 365; 12 Am. Jur. 329; 16 C. J. S. 1287.) It has been held that the due process clause does not guarantee judicial process in all cases (Dohany v. Rogers, 281 U. S. 362 [50 S. Ct. 299, 74 L. Ed. 904]; Den & Dem. Murray v. Hoboken Land & Imp. Co., 18 How. [U. S.] 272 [15 L. Ed. 372]), and that it does not guarantee any particular procedure. (Hurtado v. California, 110 U. S. 516, 537 [4 S. Ct. 111, 292, 28 L. Ed. 232].) It was even held in Reetz v. Michigan, supra, p. 507, that the due process provision was not violated by a state statute vesting the final decision of questions of law in a state board of medical examiners. The court said, “... we know of no provision in the federal Constitution which forbids a state from granting to a tribunal, whether called a court or a board of registration, the final [858]determination of a legal question . . . Due process is not necessarily judicial process. ...”
Finally, the conclusion in the Drummey decision concerning the due process requirements of the Fourteenth Amendment resulted, not only from failure to consider the other federal decisions in the field, hut from a misapplication of the three decisions which were cited. The requirement in those cases of a judicial re-examination of administrative findings of fact was an exception to the general doctrine of administrative finality expressed above, and it was limited to two specific situations wherex the particular factual determination involved the constitutional jurisdiction of the particular agency. Thus, in establishing rates for public, utilities it was held that an administrative finding that the rate was non-confiscatory should be subjected to the same scrutiny that a legislative declaration to that effect would be accorded in order that the court might assure itself that the constitutional guarantee of just compensation had been met. (Ohio Valley Water Co. v. Ben Avon Borough, supra; St. Joseph Stockyards Co. v. United States, supra.) A recent case indicates clearly that this exception to the rule of administrative finality is limited to this phase of the rate-making power. (Railroad Com. v. Rowan & Nichols Oil Co., 310 U. S. 573, 581 [60 S. Ct. 1021, 84 L. Ed. 1368].) The other exceptional situation involved an issue of fact upon which the jurisdiction of the agency depended within the provisions of the federal Constitution. Thus, it was held in Crowell v. Benson, supra, that the existence of the master and servant relation and the question of whether the injury occurred upon navigable waters were facts which, if erroneously determined, might permit the agency to operate outside the scope of its constitutional power. The rule of administrative finality on findings of fact could not be applied, therefore, because the court was required to satisfy itself that constitutional limitations had not been exceeded. (Crowell v. Benson, supra, pp. 56-58.) The limited nature of this exception, also, is indicated by the cases involving the same statute which hold that ordinarily administrative findings of fact are conclusive if supported by substantial evidence. (South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251, 258 [60 S. Ct. 544, 84 L. Ed. 732]; 24 Va. L. Rev. 653; 25 Cornell L. Q. 274.) Upon examination of the many federal cases defining the requirements of the due process clause so far as administrative findings of fact are con[859]cerned, it can no longer be disputed that the Drummey decision reached a wholly erroneous conclusion through its reliance upon three federal cases which deal with dissimilar situations and which are conceded to be sporadic exceptions to the general rule of administrative finality. (See, McGovney, op. cit. supra, p. 134 et seq.; Dickinson, Crowell v. Benson; Judicial Review of Administrative Determinations of “Constitutional Fact”, 80 U. of Pa. L. Rev. 1055; Black, “Jurisdictional Fact” Theory and Administrative Finality, 22 Cornell L. Q. 349.)
(c) Reliance upon the requirements of the California Constitution.
Although the majority opinion in the present case adopts and extends the conclusions announced in the Drummey and McDonough decisions, it concedes in effect that the theory underlying those decisions was in error. The so-called “mandatory” requirement of the federal cases (see, McDonough v. Goodcell, supra) has been re-stated and the federal cases are now said to be persuasive only. The support for the majority opinion in this case, therefore, is sought in the provisions of the California Constitution.
The reasoning in support of this position is based upon a misapplication of the doctrine of separation of powers. The position advanced, simply stated, is this: (1) the basic judicial power of the state can be vested only in certain named courts of law; and (2) the power to make binding determinations of fact and to issue orders based thereon affecting private rights of property, which has traditionally been said to be quasi-judicial in nature, constitutes an exercise of power so basically judicial that it can be performed only by a court of law. The first proposition has been accepted doctrine throughout the United States for generations; the second announces a new rule as to the lesser, quasi-judicial power which is not supported by our cases or decisions elsewhere. It results from the failure to recognize the hitherto well-established class of inferior adjudicating functions which have been called “quasi-judicial” in nature. It has long been established that the separation of powers doctrine cannot be interpreted as a rigid and absolute separation of governmental functions. It is, rather, a general doctrine designed to prevent the vesting of the basic power of any branch of the government in the hands of another branch. (Hart, Introduction to Administrative Law, [1940] pp. 146-150; Cush[860]man, The Independent Regulatory Commissions, [1941] pp. 420-448; Green, Separation of Governmental Powers, [1920] 29 Yale L. J. 369; [1935] 2 Univ. of Chi. L. Rev. 385; [1934] 58 Am. Bar Assn. Rep. 407, 410-414; [1936] 51 Pol. Sci. Q. 383.) The California decisions have not followed any different rule. (See, Parker v. Riley, 18 Cal. (2d) 83 [113 Pac. (2d) 873]; Ray v. Parker, 15 Cal. (2d) 275, 290 [101 Pac. (2d) 665]; Agricultural Prorate Com. v. Superior Court, 5 Cal. (2d) 550, 568 [55 Pac. (2d) 495]; Globe Cotton Oil Mills v. Zellerbach, 200 Cal. 276 [252 Pac. 1038]; Brecheen v. Riley, supra; Housing Authority of L. A. County v. Dockweiler, 14 Cal. (2d) 437 [94 Pac. (2d) 794]; [1931] 19 Cal. L. Rev. 448; 5 Cal. Jur. 658, 677, 683.)
Although the basic power of any one of the three co-ordinote branches of the government can be exercised by the individual branches only, there are incidental governmental activities which may appropriately be exercised by any or all of the agencies of the government. Certain of these functions may be a normal incident of legislative action or an ordinary accompaniment of true judicial action, but unless the basic constitutional power of the particular branch of the government is involved, such quasi-legislative or quasi-judicial power may be exercised by other agencies of government. Thus, it has been recognized that the ascertainment of facts based upon evidence taken in the course of a hearing, while an ordinary incident of a judicial proceeding, may also have an appropriate place in action by the legislative or executive branch of the government. (See Brown, Administrative Commissions and the Judicial Power, [1935] 19 Minn. L. Rev. 261, 275.) As the United States Supreme Court has said in a leading case: “Even where it is essential to maintain strictly the distinction between the judicial and other branches of the government, it must still be recognized that the ascertainment of facts, or the reaching of conclusions upon evidence taken in the course of a hearing of parties interested, may be entirely proper in the exercise of executive or legislative, as distinguished from judicial, powers. The legislature, had it seen fit, might have conducted similar inquiries through committees of its members, or specially constituted bodies . . . and it might have used methods like those of judicial tribunals in the endeavor to elicit the facts.” ( Louisville & N. R. R. Co. v. Garrett, 231 U. S. 298, 307 [34 S. Ct. 48, 58 L. Ed. 229] ; see, also, In re Battelle, 207 Cal. 227 [277 Pac. [861725], 65 A. L. R. 1497].) It has been held in this state, in conformity with the prevailing doctrine, that the power to make findings of fact upon the basis of which legislation is to become effective may be vested in administrative agencies (Olive Proration Program Committee v. Agricultural Prorate Com., 17 Cal. (2d) 204, 208 [109 Pac. (2d) 918]; Globe Cotton Mills v. Zellerbach, supra, at p. 277) and in members of the executive branch of the government. (Brock v. Superior Court, 9 Cal. (2d) 291 [71 Pac. (2d) 209, 114 A. L. R. 127]; Ray v. Parker, supra, pp. 290-292.)
It therefore becomes apparent that there is both a subsidiary legislative function which may properly be devolved upon other agencies of government without violating the provisions of the Constitution (Parker v. Biley, supra) and an inferior adjudicating function which, though judicial in nature, may be performed by other agencies of government without amounting to an unconstitutional exercise of judicial power. The contention has frequently been made that a statute vesting power in a state-wide administrative agency to make orders based upon determinations of fact is unconstitutional as vesting judicial power in the agency. These contentions have been repeatedly rejected. (Ray v. Parker, 15 Cal. (2d) 275, 290 [101 Pac. (2d) 665]; Brecheen v. Riley, 187 Cal. 121 [200 Pac. 1042]; Suckow v. Alderson, 182 Cal. 247 [187 Pac. 965]; Globe Cotton Oil Mills v. Zellerbach, 200 Cal. 276 [252 Pac. 1038]; Ex parte Whitley, 144 Cal. 167 [77 Pac. 879, 1 Ann. Cas. 13]; Dominguez Land Corp. v. Daugherty, 196 Cal. 468, 483 [238 Pac. 703].) It has been held that the power to make determinations of fact upon the basis of which a license to engage in business may be revoked or suspended may be vested in an administrative agency without violating the Constitution (Ray v. Parker, supra, pp. 290-292). The right to engage in a lawful business or profession is a valuable right, but it is subject to the proper exercise of the police power; and the power to make determinations of fact upon which a license revocation is based does not constitute an exercise of the judicial power of the state. (Brecheen v. Riley, supra, p. 125.) Such power partakes of the judicial function, but it does not constitute “the judicial power” within the meaning of the constitutional provision. (Suckow v. Alderson, supra, p. 250; Ex parte Whitley, supra, p. 179.) Even though a statute provides that the determinations of fact of a state-wide administrative agency are to be eonelu[862]sive (Stats. 1925, pp. 595, 599) there is no unconstitutional delegation of judicial power to the agency. (Globe Cotton Oil Mills v. Zellerbach, supra, p. 277.)
In the face of this trend of authority, it is difficult to see how the majority could escape the conclusion that the functions of the Board of Optometry in the present case, while partaking of the adjudicating function, were properly classifiable as quasi-judicial in nature and properly delegable to administrative agencies. The explanation is found in the two decisions previously referred to. In Whitten v. California State Board of Optometry, supra, the court might have merely repeated the procedural error of the Standard Oil case by holding that, while quasi-judicial functions were exercised, constitutional judicial power was not involved, and thus no basis was presented for the use of certiorari or prohibition. The court in that case, however, added the wholly unnecessary comment that the functions of such professional licensing boards could no longer be called quasi-judicial and doubt was cast upon the previous cases which had so classified these functions. In Drummey v. State Board of Funeral Directors, supra, page 81, this statement was rephrased and it was said that the Constitution forbade the vesting of either judicial or quasi-judicial powers in administrative boards. The majority opinion in the present case does not mention quasi-judicial functions, and the inference seems to be that any function which partakes of the adjudicating power must be classified as the constitutional judicial power and may be exercised by courts of law alone. The conclusion that it would be an unconstitutional delegation of basic judicial power to authorize an administrative board to revoke professional licenses upon determinations of fact which are conclusive if founded upon substantial evidence finds no support in the decisions of this state prior to 1936 and it is contrary to the decisions of other jurisdictions. (See: State Board of Medical Examiners v. Spears, 79 Colo. 588 [247 Pac. 563, 54 A. L. R. 1498], error dismissed, 275 U. S. 508 [48 S. Ct. 158, 72 L. Ed. 398]; State ex rel. Williams v. Whitman, 116 Pla. 196, 199 [150 So. 136, 156 So. 705, 95 A. L. R. 1416]; Klafter v. State Examiners, 259 Ill. 15 [102 N. E. 193 Ann. Cas. 1914 B, 1221, 46 L. R. A. (N. S.) 532]; Nega v. Chicago Rys. Co., 317 Ill. 482 [148 N. E. 250, 39 A. L. R. 1057]; Hunter v. Colfax Consol. Coal Co., 175 Iowa 245, 308-319 [154 N. W. 1037, 157 N. W. 145, Ann. Cas. 1917 B, 803, L. R. A. 1917 D, 15] ; Iowa Eclectic Med. College [863]Assn. v. Schrader, 87 Iowa 659 [55 N. W. 24, 20 L. R. A. 355]; State v. Board of Med. Examiners, 34 Minn. 387 [26 N. W. 123]; State ex rel. Hurwitz v. North, 304 Mo. 607 [264 S. W. 678], affirmed, 271 U. S. 40 [46 S. Ct. 384, 70 L. Bd. 818]; Missouri, K. & T. R. R. Co. v. Shannon, 100 Tex. 379, 389 [100 S. W. 138, 10 L. R. A. (N.S.) 681].)
The majority of the court now seeks additional support for its position in the specific wording of the California Constitution, article VI, section 1, which provides that the judicial power of the state shall be vested “in the senate, sitting as a court of impeachment, in a supreme court, district courts of appeal, superior courts, such municipal courts as may be established . . . and such inferior courts as the Legislature* may establish in any incorporated city or town, township, county or city and county.” Cases from all other states and from the federal system are distinguished by the majority upon the theory that only in California is the power of the legislative branch in creating inferior courts limited to local inferior courts. Therefore, it is argued state-wide administrative boards in other jurisdictions may be considered inferior courts which can constitutionally exercise true judicial power. There are two answers to this. The first is that such administrative agencies are not in fact considered inferior courts by the jurisdictions in which they exist, and it has repeatedly been held that such bodies cannot exercise constitutional judicial power. (Cf. Batty v. Arizona State Dental Board [Ariz.], 112 Pac. (2d) 870, 873; Cushman, The Constitutional Status of the Independent Eegulatory Commissions, 24 Cornell L. Q. 13, 37.) The second answer is that reliance upon this constitutional provision begs the question at issue here since it assumes that a grant of basic judicial power has been made to the state-wide licensing agencies in this state. The provisions of article VI, section 1, add nothing to the separation of powers provision of article III, section 1, for if quasi-judicial power, rather than constitutional judicial power, is actually involved, no violation of either constitutional provision is present.
Finally, then, let us examine the cases which the majority cites in support of the conclusion, (which is contrary to the cases in this state prior to 1936 and to decisions throughout the country,) that the power to make an order of revocation based upon a binding determination of fact is an exercise of constitutional judicial power, rather than an exercise of quasi-[864]judicial power. We may exclude those cases, derived from the Standard Oil case, which we have already shown to he erroneous. The first group of cases relied upon by the majority merely states the fundamental principle that the constitutional judicial power can be exercised only by courts of law, or by special bodies invested with such power by the Constitution. (Cf. Pryor v. Downey, 50 Cal. 388 [19 Am. Rep. 656]; and other cases cited in the majority opinion.) The second group of cases involves the Industrial Accident Commission. Insofar as these cases repeat the general separation of powers doctrine they add nothing to the cases first cited, and the principle stated is the traditional one. The decisions in Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319 [153 Pac. 24], and Western Metal Supply Co. v. Pillsbury, 172 Cal. 407 [156 Pac. 491, Ann. Cas. 1917 E, 390], contain particular language, however, upon which the majority relies. In these cases it was said that, where a statute creates a special liability upon the part of employers and grants power to an agency of government to determine when liability exists and to render a judgment in favor of the employee against the employer, the power exercised constitutes basic judicial power within the meaning of the Constitution. (Western Metal Supply Co. v. Pillsbury, supra, p. 410.) The Industrial Accident Commission eases, however, cannot be used to support the theory that constitutional judicial power is involved in making determinations of fact upon which professional licenses are revoked, for in those cases the court clearly distinguished the licensing situation as one in which strictly judicial power was not involved. (See, Western Metal Supply Co. v. Pillsbury, supra, p. 412.) Those cases, in other words, clearly recognize the distinction between the constitutional judicial power and the quasi-judicial power. The duties of the professional licensing agencies were conceded to be quasi-judicial in nature. Such quasi-judicial determinations were, of course, reviewable on certiorari and the board’s determinations of fact were final if supported by evidence. (Fuller v. Board of Medical Examiners, 14 Cal. App. (2d) 734, 742 [59 Pac. (2d) 171]; Suckow v. Alderson, supra.)
The third group of cases relied upon by the majority is the so-called Water Commission group. We have already indicated the use which was made of these cases as a means of supporting the Standard Oil and Drummey decisions. The cases held that where an agency had a mere supervisorial [865]authority in the granting of preliminary water permits and where none of the ordinary incidents of quasi-judicial power were found, there was neither quasi-judicial nor judicial power conferred upon the agency. (Tulare Water Co. v. State Water Comm., supra, p. 537.) These decisions do not support the conclusion of the majority that basic judicial power is involved in the present situation. The dictum in the concurring opinion means only that, as an aid to interpreting the legislative intent in delegating the duty of issuing permits, the court could consider the probability that an unconstitutional delegation of judicial power might have been involved if the statute were interpreted to authorize the commission to adjudicate title to real property. (See, Turrentine, op. cit. supra, p. 282.) At that very time, however, the same court recognized that the revocation of professional licenses involved only quasi-judicial power reviewable by certiorari. (Brecheen v. Riley, 187 Cal. 121 [200 Pac. 1042].)
The final group of cases relied upon by the majority involves the State Bar Act. It should be noted first that they furnish no direct authority upon the constitutional point for which they are cited since the cases have consistently held that the legislature clid not intend the determinations by the Board of Governors to be final even though based upon substantial evidence. (In re Shattuck, 208 Cal. 6, 12 [279 Pac. 998].) It has also been said that the Board of Governors is an administrative arm of the court (Fish v. State Bar, 214 Cal. 215, 225 [4 Pac. (2d) 937]; Furman v. State Bar, 12 Cal. (2d) 212, 214 [83 Pac. (2d) 12]) and that its findings are merely those of a special intermediary agency. (In re Petersen, 208 Cal. 42, 46 [280 Pac. 124].) Insofar as the nature of constitutional judicial power is involved in these State Bar decisions as a basis for the interpretation given the statute, there is authority which contradicts the suggestion that the disbarring of an attorney requires a judicial examination of the evidence. (See, Turrentine, May the Bar Set Its Own House in Order, 34 Mich. L. Rev. 200, 214, et seq.) But even conceding the validity of that assumption, it is clear that the discipline of attorneys is a matter of particular judicial concern over which the courts have asserted inherent power. (See, In re Lacey, 11 Cal. (2d) 699, 701 [81 Pac. (2d) 935].) If there is basic judicial power involved in the disciplining of an attorney, therefore, the explanation comes from the peculiar relation which the attorney bears to the judicial [866]system. This is particularly obvious in view of the fact that when this theory was announced in the Shattuck case and thereafter, the court was apparently satisfied that the revocation or suspension of other professional licenses involved only quasi-judicial power the exercise of which was reviewable on certiorari. (See, Painless Parker v. Board of Dental Examiners, 216 Cal. 285 [14 Pac. (2d) 67].) It follows that the State Bar cases do not support the conclusion of the majority that constitutional judicial power would be involved if an administrative agency were empowered to make binding determinations of fact upon the basis of which orders revoking or suspending professional licenses were issued.
3. The Practical Problem.
The interpretation placed upon our state Constitution by the majority opinion is unsound, as was the interpretation placed upon the federal Constitution in the Drummey and McDonough decisions. Once the absence of any constitutional requirement on this point is understood there remains no possible justification for the result in the present case. Any rule which requires that a complete judicial retrial be held in each case where administrative action results in the deprivation of a property right is unworkable. It must be kept in mind that the majority opinion announces principles of constitutional law that of necessity apply to all determinations of fact affecting property and are not limited to the revocation of professional licenses. Courts will be required to try questions of fact in countless situations heretofore settled by administrative agencies. In many such cases those facts may be determined by jurors, certainly no better qualified than trained administrators to weigh evidence in cases that frequently involve technical subjects. We must also consider that the administrative agency will be stripped of the prestige and authority necessary to enable it to perform its functions efficiently if the courts will neither rely upon the record made before it nor accord its findings any finality whatsoever. What useful purpose can an agency serve by conducting hearings in such eases?
We cannot treat the judicial review of administrative action as a static procedure requiring an identical judicial investigation in each instance. The degree of finality accorded the findings of administrative agencies created to carry out [867]the legislative purposes is primarily a question of policy for the legislature and issues of such fundamental importance to the administration of government must be determined by reference to the intention of the law-making body. The legislature is precluded by our Constitution from imposing non-judicial duties upon our courts, thus it cannot provide for a direct appeal from an administrative agency to a court. (Mojave River Irr. Dist. v. Superior Court, 202 Cal. 717, 724 [262 Pac. 724]; Collier & Wallis v. Astor, 9 Cal. (2d) 202 [70 Pac. (2d) 171]; cf. Federal Radio Com. v. General Electric Co., 281 U. S. 464, 469 [50 S. Ct. 389, 74 L. Ed. 969]; Federal Radio Com. v. Nelson Bros., 289 U. S. 266, 276 [53 S. Ct. 627, 77 L. Ed. 1166, 89 A. L. R. 406].) In many instances, however, the legislature has sought to indicate the degree of finality to be given to administrative findings of fact. Where it was proper to do so, the legislature has occasionally specified a review of the administrative action by an original court proceeding in which the facts determined by the administrative agency are accorded no finality at all but are determined de nova in the superior court. (See, Alcoholic Beverage Control Act, Deering’s Gen. Laws [1937], Act 3796, sec. 46; Deering’s Gen. Laws [1937], Act 986, sec. 13.12; Labor Code, see. 1647, Stats. 1937, page 240; also, Collier & Wallis v. Astor, supra.) In certain instances the legislature has merely indicated that the findings of fact of a particular administrative agency or officer are to be accorded a high degree of finality. (See, Labor Code, sec. 1598, Stats. 1937, p. 234; Public Resources Code, see. 3355, Stats. 1939, p. 1132; Deering’s Gen. Laws [1937], Act 3421, sec. 9.) In other statutes the legislature has provided generally that action taken under the authority thereof may be reviewed in court, without making any provision as to the nature and extent of the review. (Agricultural Code, see. 735.6, Stats. 1935, p. 924; Vehicle Code, sec. 317, Stats. 1935, p. 141.) In most of the regulatory statutes incorporated in the Business and Professions Code, including the statute here involved, the legislature has indicated its intention that the administrative decision be accorded as much finality as possible by vesting in such agencies the power to revoke or suspend licenses without any provision at all for the judicial review of such action. (Dental Practice Act, Bus. & Prof. Code, secs. 1670-1680; Medical Practice Act, Bus. & Prof. Code, sees. 2360-2408; Optometry [868]
Where there is neither a constitutional nor statutory requirement that a court make the determination of fact or reweigh the evidence upon which the administrative agency acted, the duty of the judicial branch is adequately fulfilled by a review upon certiorari which extends to the questions of law involved. A review upon the issues of law would, of course, include such questions as whether the agency has regularly pursued the authority vested in it, whether it has acted arbitrarily and whether there is substantial evidence to support its determinations of fact. Our decisions have recognized that administrative rulings on questions of law cannot be accorded finality. Such questions may be determined conclusively only by a court exercising constitutional judicial power. (Bodinson Mfg. Co. v. California Emp. Com., 17 Cal. (2d) 321 [109 Pac. (2d) 935].) Upon issues of fact, however, where there is no constitutional requirement that the facts be judicially determined and no statutory indication that the review was meant to extend to a re-examination of questions of fact, the court should uphold the administrative determination unless it is found that there is no substantial evidence to support the finding. This rule, which is accepted in other jurisdictions, can be re-established here only by overruling the recent decisions which we have shown to be in error. Where any court has declared a rule that, upon re-examination, seems clearly erroneous, it has both a power and a duty to reject it and to state the correct rule, to avoid further confusion. (See, Hart v. Burnett, 15 Cal. 530, 600; Houghton v. Austin, 47 Cal. 646, 668; People v. Lynch, 51 Cal. 15, 39 [21 Am. Rep. 677]; 7 Cal. Jur. 632.) As this court has said, “If, after fully considering a former decision, a judge is convinced that it is wrong, it becomes simply a question of public policy, whether ... it will produce more of evil than of good to restore the law to its integrity . . . ‘such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired ... by the perpetuity of error’.” (Houghton v. Austin, supra, p. 667, quoting Chancellor Kent, in overruling the conclusion previously reached in Savings & Loan Society v. Austin, 46 Cal. 415.)
This concept of judicial duty is particularly apt in the present situation. Not only is the majority of this court [869]engaged in perpetuating self-induced error, but the error constantly reacts upon other situations to create logically unsound distinctions. For example, where the functions of a local administrative agency are involved it would be proper under the majority position to classify its activities as judicial and reviewable on certiorari, while exactly the same function performed by a state-wide agency could not even be classified as quasi-judicial in nature. (See, Elliott, Certiorari and the Local Board, 29 Cal. L. Bev. 586.) If upon analysis, the duties of each agency are quasi-judicial, the court should recognize that fact. Similarly, the majority position has led to an unsound distinction between suspending a professional license and refusing to grant a license where the result in each instance is to eject a person from a business in which he has engaged for a number of years. (Cf. Drummey v. State Board of Funeral Directors, etc., supra; McDonough v. Goodcell, supra; McGovney, op. cit. supra, p. 134; 21 R. C. L. 362.) The position taken in the majority opinion can lead only to further unfortunate complications in this field of the law.
For the reasons set forth herein, it seems clear to me that the following decisions of this court should be overruled insofar as they are contrary to the views expressed herein: Standard Oil Co. v. Board of Equalisation, 6 Cal. (2d) 557 [59 Pac. (2d) 119]; Whitten v. California State Board of Optometry, 8 Cal. (2d) 444 [65 Pac. (2d) 1296, 115 A. L. R. 1]; Drummey v. State Board of Funeral Directors, 13 Cal. (2d) 75 [87 Pac. (2d) 848]; and McDonough v. Goodcell, 13 Cal. (2d) 741 [91 Pac. (2d) 1035, 123 A. L. R. 1205]. The proceeding in mandamus in the present case should be treated as a proceeding in certiorari (Board of Trustees v. State Board of Equalization, 1 Cal. (2d) 784 [37 Pac. (2d) 84, 96 A. L. R. 775]), and the judgment of the trial court should be affirmed.
Edmonds, J., and Traynor, J., concurred.
Bespondents ’ petition for a rehearing was denied April 15, 1942. Gibson, C. J., Edmonds, J., and Traynor, J., voted for a rehearing.