Whitten v. California State Board of Optometry

THOMPSON, J.

This case was transferred to this court after decision by the District Court of Appeal, Second Appellate District, Division Two, in order that we might give further consideration to the propriety of the issuance of the writ of prohibition to restrain the respondent board from taking further action in proceedings to revoke the license of Ward M. Whitten for the making of untrue statements in his advertising in violation of the Optometry Law. (Stats. 1913, p. 1097.) The action was commenced in the superior court and the peremptory writ of prohibition was ordered to issue. The board prosecutes this appeal therefrom.

The office of the writ of prohibition is limited by the Constitution to the restraint of a threatened exercise of the judicial power in excess of jurisdiction and it does not lie to an officer or board exercising purely ministerial functions.

(Camron

v.

Kenfield,

57 Cal. 550;

Baines

v.

Zemansky,

176 Cal. 369 [168 Pac. 565];

Santini

v.

Justice’s Court,

218 Cal. 671 [24 Pac. (2d) 761].) The Optometry Law provides for a state board of examiners in optometry having statewide jurisdiction over the practice of optometry. Hence the case comes squarely within the rule, recently reiterated in the case of

Standard Oil Co. of California

v.

State Board of Equalization,

6 Cal. (2d) 557 [59 Pac. (2d) 119], that, in the absence of a constitutional grant of judicial power a state board cannot exercise judicial functions and the legislature is power

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