Yee v. State Board of Equalization

GOULD, J.,

pro tem.

Under the provisions of the Alcoholic Beverage Control Act (Stats. 1935, chap. 330) beer and wine licenses of petitioner and respondent were revoked by the State Board of Equalization on February 18, 1936, upon recommendation of its investigator and representative. Written notice of such revocation was given to respondent February 21, 1936. Thereafter and within the time provided by the act respondent filed his verified petition to the board for reconsideration of the matter.

Section 45 of the act in question provides as follows: “Within thirty days after receipt by the board of petition for reconsideration the board shall itself rehear the entire matter

de novo

and shall thereupon and within said thirty days either affirm, modify or set aside its original order ’ ’.

When the petition for reconsideration herein was received, the State Board of Equalization, without notice to petitioner, passed upon the matter by adopting a motion that “the petition for reconsideration of alcoholic beverage licenses . . . be and the same is hereby denied”. Respondent thereupon filed in the superior court his petition for writ of

certiorari

to review said action of the board, and the lower court made and entered judgment annulling the order so made. From that judgment the state board appeals.

Although respondent has not assisted us by the filing of any points or authorities, and the matter comes on for decision solely upon appellant’s opening brief, we are. of the opinion that the judgment must be sustained. Section 45 of the act lays down in plain and unequivocal language what must be done when the protesting licensee files a petition for reconsideration: “the board shall itself rehear the entire matter

de novo”.

A rehearing is a retrial of the issues; it presumes notice to parties entitled thereto and an opportunity for them to be heard; and the use of the words “entire” and

“de novo”

(anew) imposes a requirement to hear and inquire into the whole matter in controversy. The

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