Humane Society Etc., California Branch Inc. v. Merrill

AGEE, J.

Petitioner appeals from a judgment entered upon the sustaining of respondent’s general demurrer to its petition for writ of mandate. Petitioner is a nonprofit corporation. Respondent is the Director of Public Health, ex-officio member of the State Board of Public Health, and the executive officer of the State Department of Public Health.

On October 26, 1959, petitioner caused to be filed with respondent a verified complaint charging the College of Medical Evangelists, a nonprofit educational corporation, with

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violations of certain provisions of the California Administrative Code pertaining to the care and treatment of laboratory-animals.

The complaint is attached to the petition and is made a part thereof. It recites that the college maintains a laboratory and that animals are kept there and used for diagnostic and research purposes; that a certificate of approval permitting such use had been issued to the college under the provisions of section 1667 of the Health and Safety Code and rules prescribed by the Board of Public Health; it then alleges purported instances of mistreatment of dogs used by the laboratory and requests that the board permanently revoke the certificate of approval.

The complaint is titled “Complaint” and commences with the following: “Now comes the Complainant and pursuant to the State of California Health and Safety Code Section #1668 and the State of California Administrative Code, Title 17, Article 1159, hereby alleges: ...” Petitioner now claims that this complaint was also filed in accordance with section 11503 of the Government Code. We do not agree. This point will be discussed later.

Section 1668 of the Health and Safety Code provides: “The board may, upon its own motion, and shall upon the verified complaint in writing of any person, investigate the actions of any person keeping or using animals for research or diagnostic purposes within this State, and it may temporarily suspend or permanently revoke a certificate of approval at any time where the holder of such a certificate, within the immediately preceding three years, while a holder of a certificate of approval, in performing or attempting to perform any of the acts within the scope of this chapter, has been guilty of the breach of any of the provisions of this chapter or of any reasonable rule or regulation adopted by the board for the purpose of carrying out the provisions of this chapter. The board may promulgate and adopt reasonable rules and regulations concerning the procedure for the drafting, filing and disposition of verified complaints of individuals. Procedure for revocation or suspension of approval shall be in accordance with the provision of the Administrative Procedure Act Government Code, Title 2, Division 3, Part 1, Chapter 5,