BRAY, P. J. Petition for writ of prohibition, mandamus, certiorari, or other writ, seeking to prohibit the superior court from enforcing an order requiring answers to certain questions in the taking of depositions.
QUESTIONS PRESENTED.
1. Is the petition proper?
2. Are petitioner’s witnesses subject to prosecution under the Alcoholic Beverage Control Act and therefore justified in [775]refusing to answer on the ground of possible self-incrimination? This requires a determination of whether selling alcoholic beverages at less than the listed price is a crime.
RECORD.
George J. Kaplanis, real party in interest, commenced an action in the San Francisco Superior Court against Peek’s Liquors, Inc., in which in his amended complaint he charged the latter under chapter 10 of the Alcoholic Beverage Control Act (Bus. & Prof. Code, §§ 24749-24757) with damaging him by selling alcoholic beverages at retail at less than the applicable fair trade prices and demanded judgment for $50,000 and additional sums after an accounting. Defendant answered, denying the material allegations of the amended complaint. Thereafter the deposition of Maurice T. Peek, the executive vice president and secretary-treasurer of Peek’s Liquors, and the depositions of certain named employees were taken. During the course of these depositions the witnesses refused to answer certain questions on the ground that the answers to said questions were incriminating or might tend to incriminate them. Thereupon plaintiff moved the superior court for an order compelling said witnesses to answer said questions. That court determined that the answers to said questions could not be incriminating and ordered the witnesses to answer. This proceeding is brought to prevent the enforcement of said order.
1. THE PETITION IS PROPER.
The petition prays for certiorari, prohibition, mandamus or other appropriate writ. When a pleader is in doubt as to the type of writ he should seek it is proper to state his prayer in the alternative form, as petitioner has done here. (3 Witkin, Cal. Procedure, § 71, p. 2567.) “ [T]he cases uniformly follow the modern principle of pleading that neither mislabeling nor a defective prayer will bar relief justified by proper allegations and proof.” (Idem, § 71, p. 2568; see also § 72, pp. 2568-2569.)
When, in discovery proceedings, the trial court issues its order requiring answers to questions propounded, a petition for writ of prohibition is a proper remedy by which a petitioner may seek review of the propriety of that order. (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180,185 [23 Cal.Rptr. 375, 373 P.2d 439].)
When a party seeks to gain information from a witness by way of deposition, the deponent need not give out [776]any privileged information. (Code Civ. Proc., § 2016, subd. (b).) If the witness is asked any question the answer to which may tend to incriminate him, the answer is privileged and may not be inquired into. (Cal. Const., art. I, § 13.) Therefore, if the trial court issues an order compelling a witness to answer an allegedly incriminating question, the propriety of that order may be reviewed upon application for a writ of prohibition, the same as if the court ordered the witness to give answers which would violate the attorney-client privilege.
2. INCRIMINATION.
It is conceded that the determination of the right to compel the answers rests upon the decision of two issues presented to the trial court and to this court, namely: (a) Is the sale of alcoholic beverages at less than the applicable listed prices a crime? (b) Is a witness exempt under the constitutional provision from testifying to an offense which, as to him, is barred by the statute of limitations ?
(b) Statute of Limitations.
Answering the second question first, it is clear that if the offense or offenses as to which the answers of a witness might incriminate him, is or are barred by the statute of limitations, he may not refuse to answer on the ground of possible incrimination. “If, at the time of the transactions respecting which his testimony is sought, the acts themselves did not constitute an offense, or, if, at the time of giving the testimony, the acts are no longer punishable; if the statute creating the offense has been repealed, if the witness has been tried for the offense and acquitted, or, if convicted, has satisfied the sentence of the law; if the offense is barred by the statute of limitations, and there is no pending prosecution against the witness, he cannot claim any privilege under this provision of the constitution, since his testimony could not be used against him in any criminal ease against himself, and consequently he is not compelled to be a witness 'against himself.’ ” (Ex parte Cohen (1894) 104 Cal. 524, 528 [38 P. 364, 43 Am.St.Rep. 127, 26 L.R.A. 423], italics added; see also Rebstock v. Superior Court (1905) 146 Cal. 308, 313 [80 P. 65]; People v. McCormick (1951) 102 Cal.App.2d Supp. 954, 963 [228 P.2d 349]; and Brown v. Walker (1896) 161 U.S. 591, 598 [16 S.Ct. 644, 40 L.Ed. 819], where the court states, “... if a prosecution for a crime, concerning which the witness is interrogated, is barred by the statute of limitations, he is compellable to answer. [Citations.] ”)
[777]The violations of the Alcoholic Beverage Control Act charged in plaintiff’s complaint are alleged to have occurred from December 22, 1959, to April 3, 1962. This action was filed April 12, 1962. Petitioner contends that the acts with which it is charged could be violations of sections 24750-24757, Business and Professions Code, and that such violations would constitute misdemeanors. (Bus. & Prof. Code. §25617.) If Business and Professions Code section 24206 applies, the statutory limitation for violation of any of those sections is one year. Beal party in interest contends that the violations concerning which he desires to interrogate petitioner’s witnesses are not criminal offenses under the Alcoholic Beverage Control Act.
Assuming the violations would constitute misdemeanors, petitioner’s witnesses’ protection against incriminating answers could only apply to acts occurring within one year of the time when the individuals are called upon to answer. As more than one year has elapsed since the date of the last charged violation, the statute of limitations has run as to any possible misdemeanor charges, and the witnesses therefore can be compelled to answer as to acts which might constitute misdemeanors. However, petitioner contends that the witnesses could be prosecuted under section 182, Penal Code, for conspiracy to commit a crime, which would constitute a felony, the limitation for which would be three years. Therefore, they could not be required to answer questions concerning any acts occurring within three years of their answering. This contention requires our determination of the question of whether the charged violations constitute misdemeanors which could be a basis for a charge under section 182, subdivision 1, Penal Code (conspiracy to commit a crime) and under subdivision 5 (conspiracy to commit an act injurious to public morals).
(a) Selling at less than listed prices.
This brings us to the first question, namely, is the selling of alcoholic beverages at less than the applicable listed prices a crime ?
Section 23001, Business and Professions Code1 as amended in 1953, provides: “This division is an exercise of the police powers of the State for the protection of the safety, welfare, health, peace, and morals of the people of the State, to elimi[778]nate the evils of unlicensed and unlawful manufacture, selling, and disposing of alcoholic beverages, and to promote temperance in the use and consumption of alcoholic beverages. It is hereby declared that the subject matter of this division involves in the highest degree the economic, social, and moral well-being and the safety of the State and of all its people. All provisions of this division shall be liberally construed for the accomplishment of these purposes. ’'
Section 24749, adopted in 1961, provides: “It is the declared policy of the State that it is necessary to regulate and control the manufacture, sale, and distribution of alcoholic beverages within this State for the purpose of fostering and promoting temperance in their consumption and respect for and obedience to the law. In order to eliminate price wars which unduly stimulate the sale and consumption of alcoholic beverages and disrupt the orderly sale and distribution thereof, it is hereby declared as the policy of this State that the sale of alcoholic beverages should be subjected to certain restrictions and regulations. The necessity for the enactment of provisions of this chapter is, therefore, declared as a matter of legislative determination. ’ ’
Section 24750 reads: “No contract relating to the sale or resale of any alcoholic beverage which bears, or the label or container of which bears, the trade-mark, brand, or name of the producer or owner of the alcoholic beverage and which is in fair and open competition with alcoholic beverages of the same general class produced by others violates any law of this State by reason of either of the following provisions which may be contained in such contract: (a) That the buyer will not resell the alcoholic beverage except at the price stipulated by the vendor, (b) That the producer or vendee of the alcoholic beverage require, upon the sale of the alcoholic beverage to another, that the purchaser agree that he will not, in turn, resell except at the price stipulated by the producer or vendee. ’ ’
Section 24752 reads: “Wilfully and knowingly advertising, offering for sale, or selling any alcoholic beverage at less than the price stipulated in any contract entered into pursuant to this chapter, or in any effective minimum retail price schedule filed with the department pursuant to section 24755, whether the person so advertising, offering for sale, or selling is or is not a party to the contract, is unfair competition and is actionable at the suit of any person damaged thereby.” (Italicized portion was added in 1961 by amendment.)
[779]Section 24755 prior to its amendment in 1961 provided: “All distilled spirits sold at retail shall he, and any other alcoholic beverage may be, sold pursuant to a contract executed pursuant to this chapter, except that Chapter 11 shall govern the sale of wine in all cases in which that chapter is applicable. No licensee shall violate any of the provisions of any such contract. ’ ’
Pursuant to this section the department adopted rule 99, which substantially was included in the 1961 amendment to section 24755, which reads in pertinent part 2 “ (a) No package of distilled spirits which bears the brand, trademark or name of the owner or person in control shall be sold at retail in this State for consumption off the licensed premises unless a minimum retail price for such package first shall have been filed with the department in accordance with the provisions of this section.... (d) ... No retailer shall sell any package of distilled spirits as a loss leader. ‘Loss leader,’ as used in this section, means a sale below cost as such cost is defined in sections 17026 to 17029, inclusive, of this code, except that a sale below cost made under the provisions of section 17050 of this code shall not be deemed a loss leader sale. The department shall reject any price schedule which does not comply with this subdivision, (e) No offsale licensee shall sell any package of distilled spirits at any price less than the effective filed price of such package unless written permission is granted by the department for good cause shown and for reasons not inconsistent with this division. ...”
These changes in the provisions of section 24755 are not significant, as at all times the selling of packaged distilled spirits at less than the listed price was and is prohibited.
Section 24756 reads: “Every distilled spirits manufacturer, brandy manufacturer, rectifier, and wholesaler shall file and maintain with the department a price list showing the prices at which distilled spirits are sold to retailers by the licensee. Sales of distilled spirits to retailers by each distilled spirits manufacturer, brandy manufacturer, rectifier, and wholesaler shall be made in compliance with the price list of the licensee on file with the department. ’ ’
Section 24757 reads: “The department may adopt such rules as it determines to be necessary for the administration of sections 24754 to 24756, inclusive, and shall take sueh [780]steps as may be necessary to enforce the provisions of such sections and the rules adopted by it for the administration thereof." (Italicized portion was added by amendment in 1961.)
Section 25617 reads: “Every person convicted for a violation of any of the provisions of this division for which another penalty or punishment is not specifically provided for in this division is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500) or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment. ’ ’
The petitioner contends that a violation of any of the provisions of division 9 of the Business and Professions Code is a misdemeanor within the meaning of section 25617. Therefore, a violation of section 24752 by selling alcoholic beverages at less than the applicable listed prices is a misdemeanor and punishable in accordance with section 25617.
Contrariwise, the real party in interest argues that the legislative intent in section 25617 is to limit the application of that section to those statutory provisions in division 9 which denominate certain acts as misdemeanors and in which no specific penalty is provided.
The question raised herein has not been decided by the appellate courts of this state. However, dictum in the case of Allied Properties v. Department of Alcoholic Beverage Control (1959) 53 Cal.2d 141 [346 P.2d 737], may be construed to support petitioner’s position and is persuasive as to the proper interpretation of section 25617. This ease dealt with the revocation of the plaintiff’s license for a violation of sections 55.5, 55.6 and 55.65 of the Alcoholic Beverage Control Act (now Bus. & Prof. Code, §§ 24750-24757, 24850-24881, advertising to sell at retail wine and distilled spirits at less than the listed prices). The sole question raised in the case was whether the provisions were constitutional. The court held the provisions of the act to be constitutional. In its discussion of the act, the court said, among other things: “Further, a rule of the department provides that a violation of its rules and regulations by a licensee will be deemed contrary to public welfare and morals and grounds for suspension or revocation of a license. (Cal. Admin. Code, tit. 4, § 1.) Although no criminal prosecution is involved here, it should be noted that the act contains a general provision, applicable to prohibited sales of alcoholic beverages, that violations for which another penalty is not specifically provided [781]in the act constitute misdemeanors punishable by a fine, a jail term, or both. (Alcoholic Beverage Control Act, § 65, now Bus. & Prof. Code, § 25617)” (P. 146; italics added.)
The court stated further: “The Alcoholic Beverage Control Act states that it was enacted ‘for the protection of the safety, welfare, health, peace, and morals of the people of the State to eliminate the evils of unlicensed and unlawful manufacture, selling, and disposing of alcoholic beverages, and to promote temperance in the use and consumption of alcoholic beverages. ’ (Alcoholic Beverage Control Act, § 1, now Bus. & Prof. Code, § 23001.) ” (Pp. 147-148.)
Also important in this regard is language written by Justice Peters in his dissenting opinion, as follows: “The Penalty: The penalties for a breach of the Pair Trade Acts are civil, only, giving to the injured party the right to damages or an injunction. The penalty [sic] for the breach of the price fixing regulations of the Alcoholic Beverage Control Act are both civil (Bus. & Prof. Code, § 24752) and penal, and the department may suspend or revoke licenses, or institute criminal action (see majority opinion). ” (P. 154.)
Prom the foregoing, it appears that the Supreme Court is of the opinion that since the Alcoholic Beverage Control Act was enacted for the purpose of protection of the safety, welfare, health, peace and morals of the people of this state (§ 23001), a violation of any of the regulatory provisions relating to prohibited sales constitutes a misdemeanor within the meaning of section 25617.
Further, since such policy has been determined by the Legislature, it is clear that if petitioner’s witnesses did violate the provisions of the Alcoholic Beverage Control Act in question, they could be convicted of a conspiracy under either subdivision 1 or 5 of section 182, Penal Code, which provide that “ [i]f two or more persons conspire: 1. To commit any crime.... 5. To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws,” they are punishable in accordance with the punishment provisions of that section (imprisonment in the county jail, or in the state prison, or by fine, or by both fine and imprisonment). (Italics added.)
Sections 24752 and 24755 do not provide that violations thereof shall be misdemeanors nor do they expressly provide that violations shall constitute crimes or offenses punishable as such. In construing section 25617, providing penalty for violation of the provisions of division 9, where penalty is not [782]specifically provided for, the question arises as to whether the section was intended to apply only to provisions which expressly make a violation a misdemeanor but do not provide the punishment therefor or also to provisions which while prohibitive do not expressly provide that the violation is a misdemeanor or a crime.
There are a number of sections of the Alcoholic Beverage Control Act which make violations thereof misdemeanors but do not state the penalty therefor. There are other sections which make violations misdemeanors and specify the penalties therefor; and there are other sections such as those with which we are concerned here, sections 24750 through 24752, which prohibit violations but do not characterize such violations as misdemeanors and do not provide penalties therefor. Prom these facts, it is argued that the legislative intent in section 25617 was to provide penalties only where a section expressly states that a violation is a misdemeanor but does not provide the penalty therefor, and as sections 24750-24752, though prohibitive, do not characterize violations thereof as misdemeanors, section 25617 does not apply.
However, the legislative intent clearly appears otherwise. The section states that “Every person convicted for a violation of any of the provisions of this division for which another penalty or punishment is not specifically provided for in this division is guilty of a misdemeanor. ...” (Italics added.)
The real party in interest would construe the section to read in effect that “Every person convicted of a misdemean- or for which another penalty or punishment is not specifically provided for in this division shall be punished by... ” If this is what the Legislature meant to say, it could easily have done so. This construction is erroneous for another reason, namely, that certain sections state that “it is unlawful” to do a certain act without specifically classifying the act as a misdemeanor or providing a penalty (for example §§ 25235-25237, and § 23404). The proposed construction would leave the violation of these ‘ unlawful acts ” without p enalty.
In construing section 25617, it is important to review its legislative history. The section as originally enacted by Stats. 1933 (eh. 658, § 35, p. 1706) reads: “Any person who violates or fails to comply with any order, rule or regulation made under or pursuant to the provisions of this act by the board, or who violates the terms or conditions of anchóense issued hereunder, or who violates any of the provi[783]sions of this act, shall be liable for each such violation or noncompliance and shall be guilty of a misdemeanor punishable by a fine of not to exceed five hundred dollars or by imprisonment of not to exceed six months in the county jail or by both such fine and imprisonment.” (Italics added.) This section as then enacted was entitled “Penalty.”
There is no doubt what the Legislature intended by the then wording of the above section, as it specifically lays out what is intended. The Legislature, by Stats. 1935 (eh. 330, § 65, p. 1151) made a complete turnabout. This section, entitled “General penalty for misdemeanor,” read: “Every person convicted of a misdemeanor for a violation of any of the provisions of this act for which another punishment is not specifically provided for herein, shall be punished by a fine of not more than five hundred dollars or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment. ’ ’
It is clear that there was a material change in the wording of the 1935 statute from the 1933 statute, and that the Legislature intended to effect a change in the law. (People v. Valentine (1946) 28 Cal.2d 121, 142 [169 P.2d 1]; People v. Perkins (1951) 37 Cal.2d 62, 64 [230 P.2d 353].) As the above section read while the 1935 amendment was in effect, it did not make the mere violation of “any of the provisions” of the act a misdemeanor. Such violation had to have been characterized as a “misdemeanor” before the penalty could apply. Here again, according to the title and language of the section, it is clear that the Legislature intended merely to define the punishment upon conviction of a misdemeanor, specifically designated as such in the act.
In Stats. 1937 (ch. § 95, p. 2175) the Legislature amended section 65 to read as follows: “Every person convicted for a violation of any of the provisions of this act for which another penalty or punishment is not specifically provided for herein, shall be guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment.” (Italics added.) The section was entitled “General penalty for misdemeanor. ’ ’
The present section 25617, enacted in 1953 (Stats. 1953, eh. 152, § 1, p. 1023) is substantially the same as the amended version of section 65, supra, but is entitled “Penalties.” As seen by the 1937 amendment and the 1953 enactment, the [784]Legislature again materially changed the wording of the section, indicating a different intention from that indicated by the section theretofore. It appears that the Legislature intended to revert to a meaning similar to that expressed in the original enactment of 1933, although the language is not quite as clearly expressed, and although substantially identical to the 1937 version, makes possible two interpretations, each of which is not entirely unreasonable in light of the legislative history.
Both section 25617 and section 25618 (the section relating to felonies) commence similarly. Section 25617 commences: “Every person convicted for a violation....” Section 25618 commences: “Every person convicted of a felony for a violation. ...” If there is any ambiguity in stating “Every person convicted for a violation” rather than the usual statement in statutes dealing with offenses, “Every person violating,” such ambiguity must be interpreted in harmony with the manifest purposes and objectives of the whole statutory scheme. (See Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227, 233 [273 P.2d 5].)
It is stated that the Alcoholic Beverage Control Board has at no time attempted to prosecute persons for the violation of the sections in question here but has been content to limit itself to the remedy of suspending or revoking licenses for such violations, and therefore there has been an administrative interpretation of section 25617 to the effect that it does not apply to violations of sections 24749-24757. Assuming that mere failure to use one form of enforcement rather than another constitutes an administrative interpretation to the effect that the form not used is not available, a proposition we doubt, such an interpretation could not prevail against the interpretation which the Supreme Court appears to have made in the Allied Properties ease, supra. Moreover, in Joseph George, Distributor v. Department of Alcoholic Beverage Control (1957) 149 Cal.App.2d 702, 710 [308 P.2d 773], the court, after stating that “where a statute needs construction, or implementation by rule or regulation . . .” contemporaneous administrative construction by an administrative agency charged with its enforcement is entitled to great weight, the court said (p. 710): “... it is also firmly established that, ‘Where there is no ambiguity and the interpretation is clearly erroneous, such administrative interpretation does not give legal sanction to a long continued incorrect construction. ’ (California Drive-In Restaurant [785]Assn. v. Clark, 22 Cal.2d 287, 294 [140 P.2d 657, 147 A.L.R. 1028]; Gunn v. State Board of Equalization, 123 Cal.App.2d 283, 287 [266 P.2d 840].) Buies of interpretation in conflict with the plain meaning of a statute are void. (Hodge v. McCall, 185 Cal. 330 [197 P. 86].)” In our ease any interpretation contrary to that given in this opinion would be clearly erroneous.
The language of section 25617, as construed in the light of the legislative history, as intimated by the Supreme Court in Allied Properties v. Department of Alcoholic Beverage Control, supra, and in view of the legislative purpose behind the act, must be construed to mean that a violation of any of the prohibited acts contained in division 9 of the Business and Professions Code is a misdemeanor, and unless another penalty is specifically provided, a violator may be punished in accordance with section 25617.
Therefore, as any such violations are misdemeanors, petitioner’s witnesses could be subject under section 182, subdivision 1, Penal Code, to a felony charge of conspiracy to commit such misdemeanors, as hereinbefore shown, and also under subdivision 5 to a felony conspiracy charge; hence they cannot be required to testify concerning any act relative to a conspiracy upon which the statute has not run.
A stipulation of the parties has been filed herein to the effect that in any event, one of the questions which was ordered answered by the trial court need not be answered.
Let a peremptory writ of prohibition issue prohibiting the trial court, in accordance with our views herein expressed, from requiring said witnesses to answer,
Sullivan, J., concurred.
All code references are to the Business and Professions Code unless otherwise indicated.
As the violations are alleged to have occurred from December 22, 1959, to April 3, 1962, it is necessary to set forth any changes, during that time, in the statutes herein involved.