Cosulich v. Stempel

NOURSE, J.

Plaintiff sued for damages for malicious prosecution. Defendant’s demurrer to the complaint was sustained without leave to amend, and judgment for the defendant followed. Plaintiff has appealed on the judgment-roll.

The complaint alleges that on December 4, 1923, plaintiff filed with the real estate commissioner his application for a license as a real estate broker; that on December 18, 1923, defendant maliciously and falsely filed with the real estate commissioner his information under oath accusing plaintiff of dishonesty and misconduct; that said charges were without probable cause, but resulted in delaying the issuance of plaintiff’s license; and that on January 11, 1924, after a full hearing of said charges upon the merits, the real estate commissioner found in favor of plaintiff and caused a broker’s license to be issued to him.

[280]

The appeal presents the single question whether an action for malicious prosecution may be based upon transactions of this kind before the real estate commissioner, The general rule is that the action will lie only when a party has instituted or prosecuted with malice and without reasonable or probable cause some judicial proceeding against another. (16 Cal. Jur., p. 728.) There has been a wide difference of opinion as to whether the action will lie when the proceedings instituted are not criminal in their nature (18 It. C. L., p. 13), but the authorities are in accord that they must be judicial proceedings and brought before some judicial tribunal. (38 Cor. Jur., p. 387.)

By the statute under which the real estate commissioner functions (Deering’s General Laws 1923, Act 112), it is provided that the commissioner may investigate the actions of “any person . . . engaged in the business or acting in the capacity of a real estate broker . . . and shall have the power to temporarily suspend or permanently revoke licenses issued under the provisions of this act.” (Sec. 12.) For the purpose of this investigation the commissioner is authorized in sections 12 and 13 of the act to issue process, to subpoena witnesses, and to hear and determine the charges against the licensee. Statutes of this nature which confer upon administrative bodies the power to hear and determine controversies incidental to their administrative functions have been held to create a quas'i-judicial body with jurisdiction to entertain proceedings which, though judicial in their character, are not in conflict with the constitutional limitations regarding the judicial powers of the state.