WARD, J. I dissent upon the ground that certain jurisdictional questions on this appeal are the precise questions raised on a petition for a writ of prohibition which was denied by the Supreme Court and are therefore res judicata. Further, when these questions and the additional questions raised are considered upon the merits, the conclusions reached thereon in the trial court should be affirmed.
The facts, as stated in the majority opinion, are favorable to the commissioner and are sufficiently accurate to render unnecessary any further statement in considering the three petitions for writs of prohibition, namely, (1) the petition to this court upon the record of pleadings; (2) the application to the Supreme Court for a hearing after disposition of the same application to this court, and (3) the direct application to the Supreme Court upon the pleadings and a transcript of evidence. Bach petition was denied. It is unnecessary to consider the petition (1) to this court as the matter was subsequently disposed of by the Supreme Court on the same record (2). The petition (3) direct to the Supreme Court disposed of on the same date, but subsequent to the denial of the application (1) for hearing after disposition in this court, may be eliminated for the [338]reason that the question had already been adjudicated and it was not the duty of the Supreme Court to consider further the merits of the matter presented in said petition. Accordingly, whenever there is a mention herein of the petition for a writ of prohibition and the ruling thereon, unless otherwise stated it has reference to the application (2) for hearing before the Supreme Court after disposition in this court. Upon the granting of a motion to transfer for a hearing before the Supreme Court, that court has jurisdiction for all purposes. (Moore v. Purse Seine Net, 18 Cal.2d 835 [118 P.2d 1].)
That the doctrine of res judicata applies to writs and judgments if the parties and questions are identical is held Price v. Sixth District Agricultural Assn., 201 Cal 502 [258 P. 387]. The general principles therein approved, namely, that a fact or question which was in issue in a former proceeding between the same parties, and judically determined by a court of competent jurisdiction is res judicata, though the immediate subject matter or the form of or remedy sought in the two proceedings be different. (Caminetti v. Board of Trustees, 1 Cal.2d 354 [34 P.2d 1021]; Goddard v. Security Title Ins. & Guar. Co., 14 Cal.2d 47 [92 P.2d 804] ; Hamilton v. Carpenter, 15 Cal.2d 130 [98 P.2d 1027]; Sutphin v. Speik, 15 Cal.2d 195 [99 P.2d 652, 101 P.2d 497] ; Panos v. Great Western Packing Co., 21 Cal.2d 636 [134 P.2d 242] and others.) The decisions by the District Court of Appeal following the rules laid down in the Price case are too numerous to cite. It is sufficient to mention Progressive, etc., Bureau v. Whealton, 62 Cal.App.2d 873 [145 P.2d 912]. (Petition for hearing by Supreme Court denied subsequent to decision in Funeral Dir. Assn. v. Board of Funeral Dirs., 22 Cal.2d 104 [136 P.2d 785], relied upon on appeal by appellant commissioner.) In the present case the issues presented relative to jurisdiction are identical with those determined by the Supreme Court on the denial of the petition for a writ of prohibition.
It is claimed by the commissioner that a decision on an appeal wherein only jurisdictional questions were raised may not be declared to be res judicata when it was rendered without written opinion in a petition for a writ of prohibition. This contention is based upon Funeral Dir. Assn. v. Board of Funeral Dirs., supra, which will be referred to herein as [339]the Funeral Directors’ case. The factual basis of that opinion differs from that disclosed in the Price case. In the Funeral Directors’ ease the court was dealing with successive applications for writs of mandamus. In the present case a petition for a prerogative writ was denied without written opinion and the same questions are presented on appeal.
The proceeding in the Funeral Directors’ case was in mandamus, to compel a state board to enforce a judgment and sentence theretofore rendered and imposed by said board. The superior court and the District Court of Appeal and the Supreme Court were vested with concurrent jurisdiction to grant or deny the writ. The Supreme Court held, therefore, (p. 110) that the denial by it without written opinion “must be construed to constitute simply a refusal by this court to exercise its original jurisdiction.” Here, the proceeding in prohibition was to prohibit the superior court from proceeding with the trial de novo before a jury, and to test the applicability of portions of certain Insurance Code sections; necessarily, therefore, the jurisdiction to grant or deny the writ rested only in the District Court of Appeal or the Supreme Court. The Price case is identical with this case except that a written opinion (County of Los Angeles v. Lodge, 51 Cal.App. 492 [197 P. 403]) in a mandamus proceeding had been filed in the District Court of Appeal.
The opinion in Funeral Directors’ case, written by Mr. Justice Schauer, in which four questions were raised, is a scholarly statement of the legal reasons impelling the decision upon the two main issues in that case. It was unnecessary to decide the last two questions. The opinion on the essential issues is persuasive in argument and analogy. There is no ambiguity in the language that might leave in doubt what was intended. It is not necessary to read anything into the opinion or garnish the views expressed therein. The opinion speaks for itself.
The Funeral Directors’ case holds 1. The initial action in disposing of an ex parte application for a prerogative writ does not require a written opinion if there is a written decision by minute order; 2. In matters in which the Supreme Court has exclusive power of review, a denial of an application for such a writ is a determination of the question on the merits; 3. That certain language in prior opinions indicating that there was a fast and binding rule that any denial [340]without opinion was a decision on the merits “may be considered to be in the nature of a dictum, so far as applicability to the instant case is concerned, . . .” (Italics added.) 4. If a petition “showed on its face that the prior adjudication was final and had been rendered on the merits of the application, it was an effective bar to the later original application. ...” (First italics added.) 5. The denial of the writ in that case must be construed as “simply a refusal by the court to exercise its original jurisdiction.” “It does not appear that any sufficient reason was shown for not making the application to the superior court in the first instance. The minute order under such circumstances, was not intended to be and is not an adjudication upon the merits of the facts presented in the application.” (Italics added.) (Funeral Dir. Assn. v. Board of Funeral Dirs., supra.)
The opinion does not hold that a denial without written opinion of a petition for a prerogative writ may not be a decision on the merits; it does not hold that each denial is based upon the fact that the petitioner is afforded a plain, speedy remedy by appeal; it does not hold that it must be assumed from each denial that the petition is improperly and insufficiently set forth; it does not hold that a reviewing court is foreclosed from looking into the background of the case as it appears from the petition or the entire documentary record and determining that the previous decision was upon the merits; it does not hold that it must appear that the only possible ground to support such denial is that it was on the merits. If that were true the Supreme Court could deny an application upon two or more grounds, such as on “the merits” and for some technical reason. Adoption of that rule would mean that although that court had denied on the merits the court still would be forced to decide in a subsequent proceeding that it was not res judicata because there was a possible additional technical ground of denial. Had it been the intention to hold that a denial of a petition for a prerogative writ, except one of exclusive jurisdiction, must be assumed to be a denial upon some technical or trivial ground, it would have been an easy matter to say so.
State Bd. of Equalization v. Superior Court, 20 Cal.2d 467 [127 P.2d 4] is not applicable to the facts in the present ease. There the Supreme Court’s jurisdiction to entertain a certiorari proceeding to annul a judgment of contempt [341]rendered for an alleged violation of a writ of mandate was challenged. Prior to the order of contempt a petition was filed for a writ of prohibition to restrain the superior court from taking further proceedings. Of course, the District Court of Appeal could not guess that the superior court would make an order in excess of its jurisdiction and properly denied the petition. The proceeding before the Supreme Court was after the contempt order was made. The proceeding before the District Court of Appeal was prior thereto. The Supreme Court declared in the State Bd. of Equalization case (p. 470); “The two proceedings were separate and distinct.” In the same ease it is pointed out that one found guilty of contempt may immediately apply to a higher court for a writ of certiorari or habeas corpus and therefore that the order may have been made also upon the ground that the proper remedy had not been pursued. In the present case no question of correctness of the remedy is involved. It is admitted on all sides that a petition for prohibition was the proper remedy.
In the State Bd. of Equalization case the language of the Supreme Court is as follows (p. 471): “The writ of prohibition may have been refused because the District Court of Appeal did not assume at that time that the superior court would make any order in excess of its jurisdiction.” The words “at that time” refer to the period before a contempt had been declared. In the present case, if there was error, it had been previously committed.
No question may be raised in the present case that the superior court did not have jurisdiction; no claim may be justly made that the petition was premature in the sense that the proceedings in the superior court were not ripe for determination. The petition was not demurrable upon some immaterial ground which might have been corrected; if so, it was not set forth in the special demurrer. In this case it could not be claimed that application should first be made to a lower court. The point presented was one of grave concern to the commissioner and to all applicants for insurance brokers’ licenses, irrespective of the activity to be engaged in. The proper remedy was used. It was a matter of great importance. What could have been the reason, based upon the record, that actuated the Supreme Court to deny the petition other than “on the merits.”
[342]It has been suggested that the Supreme Court denied the petition because the members thereof thought that the trial court would correct an error before entering judgment. As it will subsequently be developed the trial court did not commit a jurisdictional error. But let it be assumed that it had. Since when may a reviewing court deny to a litigant his right upon the assumption that another court will correct the injustice. Let it be assumed that a trial court without jurisdiction is about to commence a hearing, or actually is in the midst of a trial, may it be said that the Justices of the Supreme Court of' this state would deny a petition for prohibition because they thought or hoped that the trial judge might change his mind on a vital question. A reviewing court is bound by the record as presented, and may not indulge in guesswork, speculation or surmise in making or refraining from making orders that may affect the action of a judge of an inferior court whether the question involved be constitutional or jurisdictional.
I do not cite the next case as final authority because it has been certified for hearing to the United States Supreme Court, but rather as an illustration of the views of the Justices of the Supreme Court to the effect that an inference may be drawn from that case that it is not necessary that a minute order should show definitely on its face that an adjudication on the merits was intended. In Leet v. Union Pac. R. R. Co., 25 Cal.2d 605 [155 P.2d 42], the defendant had moved to abate the action and in its answer pleaded an Oregon injunction decree. In addition a motion to continue the matters indefinitely was presented. The trial court denied the motions. On appeal, Mr. Justice Carter, who is meticulously careful to bear in mind the salient features and deciding points in previous eases and compare them with the facts and the law before the court in a given case, and to disapprove without equivocation any conflict or inconsistency in any prior opinion (dissenting opinion in Estate of Platt, 21 Cal.2d 343, 353 [131 P.2d 825], and many others), said (p. 607) : “The court denied defendant’s motions without opinion and it must be assumed the denial was on the merits.” The pleadings and the ruling—without written opinion—was sufficient to warrant the assumption that the lower court acted on the merits, and the conclusion seemed so obvious that it was not necessary to cite in support thereof [343]an authority. It is true that a forceful dissent was written by Mr. Justice Edmonds (who is noted for the power and vigor of his written opinions), attacking the assumption as contrary to the facts and the pleadings, but there is no suggestion that the assumption could not be indulged on a proper record. Neither in the majority nor in the minority opinion in the Leet ease, nor in the opinion in the Funeral Directors’ case is it indicated that it be assumed that a denial of a petition for a prerogative writ without written opinion is not on the merits. The Funeral Directors’ case distinguished certain cases, and in doing so stated on page 109 that since the petition in Dawson v. Superior Court, 158 Cal. 73 [110 P. 479] “showed on its face that the prior adjudication was final and had been rendered on the merits of the application, it was an effective bar to the later original application here.” (First italics added.)
“Showed on its face” does not necessarily mean that the prior adjudication appeared in the minute order—though if it did that would be the end of the matter. The words “showed on its face” have reference to the face of the pleadings as distinguished from the evidence. (People v. Megladdery, 40 Cal.App.2d 748, 757 et seq. [106 P.2d 84]. ) “Showed on its face,” so far as the facts of this case are concerned, means that from the language employed in the pleadings it is apparent (Pankewicz v. Jess, 27 Cal.App. 340 [149 P. 997] ; 25 C.J. 333, notes 44 and 48) that the order, without written opinion, was made on the merits of the application and not upon a technical ground.
Where an aggrieved party elects to apply for a writ of prohibition against a superior court to prohibit that court on jurisdictional grounds from proceeding with the trial of a cause then before it, and the petition for the writ is presented on a complete record of the pleadings out of which the jurisdictional points arise, and is denied without written opinion, and thereupon, on the assurance of such denial the trial court proceeds with the trial of the case, it should be and is the law that on appeal the reviewing court should not be foreclosed from looking into the background of the case, as shown by the pleadings and from holding, if the record so warrants, that such denial must have been based on the merits, even though it did not so appear from the order.
[344]The question, presented to the Supreme Court was one of jurisdiction. The commissioner contended that the superior court had but one duty, namely, to dismiss the proceeding without any hearing in the superior court. Specifically, the question involved (1) the legal justification of the denial of a hearing before the commissioner based upon Insurance Code sections 1821 and 1733; (2) the right of McDonough to a trial “de novo” and (3) the right to a jury trial. These three questions were disposed of on the petition for the writ to the Supreme Court and are now res judicata. They may be considered under that heading or as contentions raised on appeal. Whatever is said herein with reference to them has that alternative in mind, that is, it represents my conclusion on the res judicata question or on “the merits” on appeal. Contentions not directly involving jurisdiction, but rather excess of jurisdiction, will be considered as points on appeal.
That portion of section 1733 of the Insurance Code providing that the commissioner may decline “with or without hearing” to grant the license “of an insurance agent, broker or solicitor” when within five years a previous application by the same party has been denied, must be read in connection with section 1821. (Newport v. Caminetti, 56 Cal.App.2d 557 [132 P.2d 897], )
At the outset it should be made plain that I do not question the right of the Legislature as a reasonable regulation to ban the filing of repeated applications. What constitutes reasonable regulation need not be discussed at this point except to comment that the provisions that a licensee’s certificate of authority may be suspended “not exceeding one year” (§704) and that an application may be refused without a hearing if made within five years of the denial of a previous application (§ 1733) speak for themselves. I agree that the regulation could provide that the application could not be filed within a specified reasonable time, or that it might be filed and denied upon the sole ground that a previous application had been denied within a reasonable specified statutory time. My objection is that, as the statute does not prohibit the filing of a renewed application within the specified period, the commissioner may not arbitrarily discriminate in granting a hearing to applicants. For example, A, B and C file applications. A’s application is granted [345]without hearing, and B’s refused after hearing. C’s is denied without a hearing. B at least had an opportunity to meet objections, which was denied to C. An applicant is required to make a showing “satisfactory to him,” the commissioner (§1732), covering grounds for suspension or revocation as enumerated in section 1731, but an applicant may not be refused a license without an opportunity to be heard. (§1821.) The refusal to hear the application under such circumstances is a violation of section 1 of the Fourteenth Amendment to the Constitution of the United States and of sections 1, 13 and 21 of article 1 of the Constitution of the State of California.
There is nothing in Newport v. Caminetti, supra, holding that the power conferred by section 1733 to deny an application without a hearing is constitutional. On the contrary, the court called attention to section 1821 providing that a license shall not be refused without an opportunity to be heard, and held that the section covered an applicant for a bail bond license. It should be noted that section 1733 applicable to renewed applications for licenses was enacted in 1937. (Stats. 1937, ch. 652.) Two years later the Legislature, evidently realizing the unconstitutional power conferred upon the commissioner in this respect, enacted section 1823, which applies specifically to applicants, but the section declares that it is also applicable to persons theretofore licensed. The Legislature may have enacted section 1821 because of views expressed in McDonough v. Goodcell, 13 Cal.2d 741 [91 P.2d 1035, 123 A.L.R. 1205], which will be discussed in detail later.
, The suggestion herein that the Supreme Court denied the application for hearing on the writ upon the ground that the commissioner was justified in refusing respondent an opportunity to be heard, and that such conclusion might have been based upon the language used in McDonough v. Goodcell, supra, is without foundation. If there was any such thought, the Supreme Court would certainly know that', whatever views might have been entertained at the time of the filing of the opinion in McDonough v. Goodcell, supra, based upon the wording of section 1733, that such section must be read with that portion of section 1821—a new section—setting forth that a license shall not be refused without a hearing.
[346]The thought that in denying the petition for hearing in this case the Supreme Court adhered to the Goodcell case is theoretical and not substantial. Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75 [87 P.2d 848], which involved a state-wide administrative board, was decided less than four months prior to the Goodcell case, wherein, in speaking of the Drummey case, it was said “ [T] he holding therein authorized an extension of the traditional functions of a proceeding in mandamus. ... It was held that the superior court in such a proceeding had the power to exercise an independent judgment on the facts presented to it and thus inquire into and determine the question of the lawfulness of the order of the board, and that the petitioners had the right to require that the trial court conduct what would be in substance and effect a trial de novo in the course of which the parties would not be limited to the record made before the board.” (McDonough v. Goodcell, supra, p. 752.) The court then held that the ruling in the Drummey case “should be limited to the situation therein appearing, and as an exception to the general rule in mandamus proceedings in the superior court is not to be applicable otherwise.” (Italics added.) The interpretation followed in the Good-cell case is that because Drummey previously held a certificate or license he was entitled to a trial de novo, without being “limited to the record made before the board,” but that McDonough, who had previously conducted the business of bail bond broker or agent for thirty-five years or more, and who was forced to apply for a license (Stats. 1937, ch. 652), was not entitled to a trial de novo after denial of the application.
The question whether the McDonough application could be determined without a hearing was a question of law to be decided by the court. If this was all that appeared in the petition for the writ of prohibition, and while the order of denial on the merits was legally justified, from a practical standpoint it might have been better to grant the writ and issue an order to the superior court to send the matter back to the commissioner for a hearing. But that was not all. The commissioner made findings of fact based upon McDonough v. Goodcell, supra, and in part upon prior findings made by his predecessor and by himself “That the applicant was not of good moral character” and “not a fit [347]person to engage in the hail bond business.” The applicant for the license was not given an opportunity to submit evidence in his own behalf or to explain the above findings and others which will be considered later. (§ 1821.) So it appears the issues included not only the applicability and the interpretation of sections of the Insurance Code, but issues involving essential questions of fact necessary to the determination of the substantial rights of the parties.
The commissioner does not deny that factual matters may be submitted to a jury but contends that the factual matters submitted here were improper,—in brief, that the question in the case was the right of the commissioner to deny the application without a hearing de novo or otherwise.
The difficulty in California in handling appeals and writs pertaining to state-wide administrative boards arose upon the filing of the decision in Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557 [59 P.2d 119], In that case it was held that the long established rule that “certiorari” was applicable to state-wide administrative boards or commissions was incorrect. The ruling was based upon the ground that such bodies did not exercise judicial functions. Three years later ih Drummey v. State Bd. of Funeral Directors, supra, it was held that the proper remedy to be invoked by those who claim to be aggrieved by an action of a statewide board in exercising its power in respect of licenses is a writ of mandate, in which the court should hear the matter “de novo.” It was held that the court in such a mandamus proceeding “must exercise an independent judgment on the facts” but “should be assisted by the findings of the board.” Three months later it was determined that the rule set forth in the Drummey ease was applicable only to a licensee, and not to an applicant for a license. (McDonough, v. Goodcell, supra.) McDonough was not specifically confined to a writ of review. Such ruling would be contrary to Standard Oil Co. v. State Board of Equalization, supra, and Drummey v. State Board of Funeral Directors, supra. Referring to the Drummey case, it was held in the'McDonough case (p. 753): “ [E]ven in the absence of such a statutory provision due process required that a party aggrieved by reason of a ruling of the officer or board involving a constitutional right be accorded an' opportunity to resort to a judicial tribunal for redress.”
[348]It is suggested that the Goodcell opinion in this particular respect, namely, that McDonough was not entitled to a trial de novo, is binding on appeal, and that a member of an intermediate court must follow the ruling therein irrespective of conclusions reached by the Supreme Court in subsequent actions. Three years after the decision in McDonough v. Goodcell, supra, it .was determined that a trial de novo was a trial wherein the independent judgment of the court must be given and that “ [T]he court must consider all material evidence and was not confined to the record of the proceedings before the board.” (Laisne v. California St. Bd. of Optometry, 19 Cal.2d 831, 834 [123 P.2d 457]. ) (Italics added.)
The provision in the Insurance Code that “Any action to review an act of the commissioner denying,” etc. (§1818) “shall be commenced and tried in the superior court” etc. (§ 1734) makes no mention of a trial “de novo” for either a licensee or an applicant. In the absence of some special statutory provision therefor the code sections covering mandamus proceedings should be applied. (Code Civ. Proc., §§ 1084 to 1089.) Assume, however, that the language in McDonough v. Goodcell, supra, though not based upon authority and without any stated reasons why there should be one test for the licensee and another for an applicant without license, does apply so far as an intermediate court is concerned, what is the duty of such court when subsequently the Supreme Court on similar questions has acted contrary to the holding in the Goodcell case?
McDonough v. Goodcell, supra, has often been cited as authority on many legal issues, but so far as I can find never by any appellate court on the subject at hand. That case adopted a new rule, which, however, has never since been followed in any case to which my attention has been called, whether one relating to insurance or otherwise. It stands alone, applicable only in that case. Another rule exists applying to applicants to practice or conduct a profession, vocation or business. Subsequent to such ruling the Supreme Court has issued writs of mandate in matters wherein it has original jurisdiction, and treated the hearing as a trial de novo, or, at least, has reviewed and weighed the evidence, though, as yet, the court has not permitted additional evidence.
[349]In Staley v. State Bar, 17 Cal.2d 119 [109 P.2d 667], the Supreme Court issued an alternative writ of mandate requiring the bar examiners to show cause why the petitioner should not be permitted to practice law. The alternative writ was discharged and a peremptory writ denied. It was decided in that case that the petition was not sufficient to warrant a reexamination of the record, but the proceeding was treated as one in mandamus. In In re Stepsay, 15 Cal.2d 71 [98 P.2d 489], the Supreme Court not only overruled the State Bar on a question of the “character” of an applicant, but weighed the evidence and gave its independent judgment that the applicant was of good moral character, and therefore entitled to take an examination. In McDonald v. State Bar, 22 Cal.2d 768 [141 P.2d 217], the Supreme Court thoroughly considered the evidence and passed upon the right of an applicant to withdraw an application. In Laisne v. California St. Bd. of Optometry, supra, at p. 840, the court said: “The cases interpreting the State Bar Act strengthen our conviction that if finality were given to the action of an administrative agency, such would be an unconstitutional exercise of judicial power.” It may be suggested that in State Bar matters jurisdiction to review is given directly to the Supreme Court. The review of a denial of an application for an insurance broker’s license is given directly to the superior court. (Ins. Code, § 1734.) The procedure should be, and is, the same in the court that first assumes jurisdiction.
During the oral argument the legal representative of the commissioner, argued not only ably and well, but frankly and conscientiously cited McDonough v. Goodcell in support of many points in this case, but never advanced a claim that the opinion was sound on the question under consideration. He was interrogated by the court as follows: “You still contend, do you, Mr. Stevens . . . that the Superior Court was without jurisdiction to grant a trial before a jury ? That is the basic contention is it? You still insist on that? [Answer] : No; I certainly haven’t mentioned it in any of my briefs, Your Honor, I believe this, the Trial Court, as I have pointed out in my briefs, was expressly authorized by statute, by Section 1734 of the Insurance Code, to take jurisdiction and review the actions and orders of the Insurance Commissioner in denying licenses. Now I think unquestionably that the Superior Court had jurisdiction to make such
[350]a determination upon reviewing the actions taken by the Insurance Commissioner.” On oral argument it was admitted that a rule which permitted a licensee a hearing de novo and denied the same privilege to an applicant was in effect illogical. Mr. Justice Spence, who recently received a merited promotion, in considering Insurance Code, sections 1821 and 1730 to 1736 said in Newport v. Caminetti, supra, at p. 559: “The only logical conclusion to be drawn is that the word ‘licensed,’ as used in section 1821, was intended to cover both persons already licensed and persons applying to be licensed under that chapter.” (Italics added.) Appellant’s petition in the Newport case for a hearing by the Supreme Court was denied without a dissenting vote. The language in the Newport case undoubtedly took into consideration the fact that section 1821 became effective after the rendition of the decision in the Goodcell case. If that section had been effective at the time the Goodcell opinion was handed down the court would never have held that an applicant is not entitled to a hearing.
In Bodinson Mfg. Co. v. California E. Com., 17 Cal.2d 321 [109 P.2d 935], involving applications to award unemployment compensation the court said (pp. 330, 331) : “The writ of mandamus may therefore be used in this state, not only to compel the performance of a ministerial act, but also in a proper case for the purpose of reviewing the final acts and decisions of state-wide administrative agencies which do not exercise judicial power. That being so, mandamus was the proper proceeding to bring in the present instance. . . . The adversary parties to these proceedings are entitled to such appeals as are permitted under the statute, and further, are entitled to appear in court to test the commission’s final decision, thus insuring compliance with the requirements of the law.” In Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620 [91 P.2d 577], there appeared some doubt as to whether the language of the statute providing for a hearing after complaint applied to an applicant as well as to a licensee. It was determined that though the language “is not as clear as it might be” there is an implication that it is appropriate to applicants in the same manner as to licensees (p. 651). It has always been the policy of the courts of this state to grant a hearing, review, de novo or otherwise, to any applicant refused a license to conduct a business. (Ray v. Parker, 15 Cal.2d 275 [101 P.2d 665].)
[351]The ruling in the Goodeell ease is explainable. The court did not say that the applicant was not entitled to a hearing but implied that he was not entitled to a trial de novo. It should be repeated; the provision that a license- shall not be refused without a hearing and an opportunity to the applicant to produce evidence in support of his application did not become effective until after the Goodcell decision.
Acquainted with the facts and knowing the law, the Supreme Court could do nothing but deny the petition to hear the matter after decision in the District Court of Appeal. It is not reasonable to assume that the denial was based upon the ground that the court guessed or concluded that the trial court might change its ruling or that the commissioner had an adequate remedy by appeal. The attorney general argued as regards the petition that it was important, in connection with the administration of the Insurance Code, that the interpretation of section 1821 should be quickly and definitely determined, adverting to the fact that no final judgment had been entered in the mandate proceedings. It appears that the decision would affect others than McDonough. That the commissioner did not have the right to dispose of a petition for a license without a hearing; that he in fact did so; that the superior court had jurisdiction to correct such an abuse of administrative functions, appeared so plainly on the face of the record that the Supreme Court did not have to consider technical matters but decided solely upon the merits.
The denial of the petition in the Supreme Court was a recognition of the change in statute and an abandonment of the holding in the Goodcell case that an applicant for a license was not entitled to a trial de novo. Otherwise it was the clear duty of the court to grant the writ and direct the trial court to confine the review to a hearing on questions of law. In view of the foregoing it must be concluded that on the second point, namely, whether McDonough was entitled to a trial de novo, the Supreme Court decided on the “merits” and not upon some conjectural technicality. As a matter of emphasis it may be repeated here that the petition for a writ of prohibition made direct to the Supreme Court should, of necessity, be denied, as the court had ruled on the petition for hearing after decision in the District Court of Appeal. In [352]Paige Co. of N. Cal. v. Superior Court, 194 Cal. 795, 796 [231 P. 344], the court said: “It appearing upon the face of the petition herein that the petitioner has heretofore applied for a similar writ of prohibition to the District Court of Appeal, in and for the third appellate district, and that its said application was, on the fourteenth day of November, 1924, denied by said court, the remedy of the petitioner herein was by application for a transfer and hearing in this court upon its aforesaid petition and was not by way of an original application to this court for the writ herein sought. Its said application is for that reason denied.” (Dawson v. Superior Court, supra; Barbee v. Appellate Dept, of Superior Court, 209 Cal. 435 [287 P. 979]; Linstead v. Superior Court, 7 Cal.2d 347 [60 P.2d 280].)
If the only question raised on the petition before the Supreme Court was one of law then such question could be decided only by the court. However, it was made plain in the petition to the Supreme Court that factual matters were involved. The superior court had jurisdiction to try the issues of fact with a jury. (Code Civ. Proc., § 1090.) Code of Civil Procedure, sections 1084 to 1097 inclusive, deal with the rules and procedure governing the writ of “mandamus.” (§ 1084.) If the answer to the petition for the writ raises a question of fact—as it did in this case—essential to the determination of the substantial rights of the parties, the court may in its discretion order a jury to pass upon such question. (Code Civ. Proc., § 1090.) Trial by jury under this section cannot be demanded by either party as of right but is resorted to in the discretion of the court. (Sparks v. Board of Dental Examiners, 54 Cal.App.2d 491 [129 P.2d 405].) If a jury is ordered the procedure is the same as in an ordinary civil action. (18 R.C.L. § 313, p. 355; 35 Am.Jur., §§ 373, 374, pp. 112-113.) The provisions of code sections 1084 to 1097 are applicable to any petition for this writ.
The foregoing determines that the superior court directly by statute had jurisdiction to review an act of the commissioner denying a license (Ins. Code, § 1734) in a mandate proceeding (Drummey v. State Board of Funeral Directors, supra) to pass upon the issues presented, and was empowered to empanel a jury. In Dare v. Board, of Medical Examiners, 21 Cal.2d 790 [136 P.2d 304], the Supreme Court said (p. [353796]) : “First, the petitioner comes before the court governed by the provisions of the Code of Civil Procedure applicable to mandamus proceedings (Code Civ. Proc., secs. 1084 to 1097 inclusive). In the disposition of such proceedings the court is likewise governed by those code sections.” (Italics added.)
In passing it may be well to say that the commissioner, on the application to the Supreme Court for the writ, vigorously contended that the impanelment of a jury in this proceeding was without legal authority. This contention has been abandoned on appeal. The commissioner is now content to claim that the issues submitted were in excess of jurisdiction; in brief, that there was error. As bearing upon this question the findings of the commissioner may be examined and considered as points raised on appeal.
The commissioner made a finding, and assigned it as a reason for the refusal of the application for the license, to the effect that on a previous application, which was denied, “no action of any nature to review said denial of said application was commenced within three months after the date” of the order denying the application upon the ground that McDonough “was not of good general reputation.” The subject of reputation will be considered later.
There is no statutory provision that the Insurance Commissioner in his official capacity as head of the administrative body may deny an application because after a previous denial there was no attempt to “review” the proceeding in a court of record. The failure to appeal from a prior order is not enumerated in either section 1805 or 1731 of the Insurance Code as a ground for refusing a license and therefore, insofar as the particular sections are concerned, refusal on that ground is in excess of the jurisdiction of the commissioner. However, there is a section which provides in substance that before an applicant is entitled to follow his previous business “it must be made to appear” to the commissioner that the applicant is a fit and proper person to have a license. (Ins. Code, § 1806.) Assuming that under this broad provision the commissioner could take into consideration as one of several although not the sole reason, the failure to apply for an appropriate writ after a ruling by him as a ground for refusal of a subsequent application, may it be contended that such ground could be entitled to any weight if the commis[354]sioner did not permit the applicant to explain, why several years before he had failed to carry the matter to a court of record, and why, in view of that failure, he now reapplied for a license?
The reason why no action was taken appears plainly from the historical background of the McDonough and other cases which appears directly in the record or by reference to previous litigation. The Drummey case determined that an applicant for a certificate or license after hearing before a board or a commission was entitled to the “independent judgment on the facts” “assisted by the findings of the board.” Three months later in McDonough v. Goodcell it was determined that the Drummey rule applied to licensees only and not to applicants. Why should McDonough seek a review of a purely factual question when it had been announced that he could not have the benefit, of the independent judgment of the court?
Three years later it was decided that an independent judgment on the facts was not only appropriate but that “any material evidence regardless of the record of the proceedings before the board” should be received on a hearing of a writ of mandate. (Italics added.) (Laisne v. California St. Board of Optometry, supra.) Though the Supreme Court has original and exclusive jurisdiction in Bar Association eases involving “applicants,” that body has considered the evidence. In the present ease the superior court had jurisdiction. (Ins. Code, § 1734.) The Supreme Court has not adopted the Goodcell rule as suitable to applicants under the State Bar Act. The change of “rules” as set forth in the Supreme Court opinions, the difference of opinion as expressed in the four-three votes, the change of court personnel, may or may not have contributed to the present effort of McDonough to obtain a license.
That confusion has existed appears from the opinion in Dare v. Board of Medical Examiners, 21 Cal.2d 790 [136 P.2d 304]. In that case the definition of trial de novo was explained (pp. 779-780) as follows: “As above noted the trial court is not confined to the record before the board. Nor is the court bound by the findings and determinations of the board. It must also be said that neither party is necessarily bound in all particulars by the record before the board.” Whether a court may or must exercise independent judgment [355]on the facts is still open to question in view of the change of definition of trial de novo. In Sipper v. Urban, 22 Cal.2d 138 [137 P.2d 425], Mr. Justice Schauer expresses himself as follows (p. 144) : “The complete trial de novo doctrine of the Laisne case had been abandoned. By the decision in the Dare case (Dare v. Board of Medical Examiners, supra, [21 Cal.2d 790] ) the majority of the court has receded from the extreme position taken in the Laisne case with respect to the right of a party to a complete trial de novo on mandamus review, and has thereby substantially rectified perhaps the most serious of the practical difficulties suggested in the dissenting opinion in the Laisne case as bound to be encountered in practice under the majority rule as then stated.” It is also suggested that the problem of review of administrative decisions should be referred to the Legislature.
In December, 1944, the Judicial Council of the State of California, whose members are selected from the most eminent jurists in the state, including the distinguished and capable Chief Justice Gibson and the able and experienced senior Associate Justice Shenk, filed a report addressed to the governor of the state. Relative to administrative agencies the council recommends certain changes in the law, including the proposal that “the case shall be heard . . . without a jury.” Evidently this is consonant with the latest expression of thought on trial de novo and recognition of the fact that a court created method of review may not control the rules of evidence and procedure against the plain provisions of the statute. (Code Civ. Proc., §1090.) “Provision is made for the cases in which the court has the power to exercise an independent judgment on the evidence and also for the cases in which the court merely examines the record to ascertain whether the decision is supported by substantial evidence.” The appendix to the report (pp. 141-142) contains the following: “The extent of the court’s power to take evidence in addition to that presented before the agency has varied from case to case in recent years (Drummey v. State Board of Funeral Directors, 13 Cal.2d 75 [87 P.2d 848] ; Laisne v. [California] State Board of Optometry, 19 Cal.2d 831 [123 P.2d 457] ), and some differences still exist as indicated by recent District Court of Appeal decisions (Wyatt v. Cerf, 64 Cal.App.2d 732 [149 P.2d 309] ) and concurring [356]and dissenting opinions in Supreme Court cases (Laisne v. [California] State Board of Optometry, supra; Bare v. Board of Medical Examiners, 21 Cal.2d 790 [136 P.2d 304]; Sipper v. Urban, 22 Cal.2d 138 [137 P.2d 425] ; Russell v. Miller, 21 Cal.2d 817 [136 P.2d 318].) ” 'If there is confusion recognized by members of the judicial council, an applicant should not be penalized if he was unable to determine his proper remedy.
Take another step and assume that the commissioner could still hold that had McDonough been given a hearing the statute of limitations as to the appeal from a former hearing must be strictly construed. Not so. Recently Mr. Justice Traynor, learned in principles of law, held that the running of the statute of limitations may be suspended for other reasons than those enacted into statutory form by the Legislature and that the Supreme Court, and I assume an intermediate appellate court, “is not powerless to formulate rules of procedure where justice demands.” (Bollinger v. National Fire-Ins. Co., 25 Cal.2d 399, 410 [154 P.2d 399].) This is such a case. It may be remarked that murderers and thieves are freed from the state penitentiary to enter new walks of life, and that lawyers released from the state prisons return to honorably conduct their practice of the law. Surely a more severe test of “character” should not be demanded of one applying to conduct a business of bail bond broker than of one to practice the profession of the law.
The consideration of the finding that respondent is not a fit person to hold a license is appropriate at this time. The commissioner found that “the undersigned Insurance Commissioner is not satisfied that. . . . The applicant is a fit” or “proper person to hold the license applied for.” Also, that the “records and acts of the Insurance Commissioner and of the Courts of this State” indicated “a lack of integrity” on the part of McDonough. Upon these former findings the commissioner found that the applicant is not a fit and proper person to be granted a license.
The evidence to which the commissioner refers is the evidence heard before the commission in the month of October, 1937, and which he reconsidered as grounds for denial in October, 1942, a few days less than five years thereafter.
The finding—in effect that the commissioner was not satisfied, etc.—may be sufficient if the basic finding is sufficient. [357]The right of a commissioner to be satisfied has been upheld but “There must exist facts which reasonably justify his conclusion that the applicant is not of good character and reputation. If. such facts do not exist, it is his duty to issue the license and this duty can be enforced by the courts.” (Riley v. Chambers, 181 Cal. 589, 595 [185 P. 855, 8 A.L.R 418]. This case is quoted with approval in McDonough v. Goodcell, supra. In the absence of respondent the only “facts” found are the data referred to as the previous “acts” of the courts and the commissioner.
The court case referred to by the commissioner as holding that respondent was an unfit person to hold a license does not so hold. It holds merely that the evidence introduced at a hearing before the commissioner was sufficient to sustain a finding that there was unfitness to hold a license. In this respect the commissioner failed to note that “Unquestionably the testimony before the commissioner would sustain a conclusion either way upon the issue of the good moral character and fitness of the petitioners to engage in the bail bond business in San Francisco. If the trial had been before a court the evidence was sufficient to support findings either way or was sufficient to support a verdict either way on the issue.” (McDonough v. Goodcell, supra, at p. 749.) However, in McDonald v. State Bar, supra, the court weighed the evidence and reversed the board.
That portion of the finding in the present proceeding to the effect that respondent is not a proper person now because he was previously so adjudged by the commissioner has reference to a previous refusal of the former application as follows; “ [T] hat said Order of Denial was based on the grounds that said Peter P. McDonough was not of good general reputation, [and] had heretofore been refused a license. ’ ’ In brief, each of the several denials was based in whole or in part upon a previous denial, which brings the consideration to the facts related in the Goodcell case.
I have no desire to elaborate on the infirmities of “reputation” evidence. It is sufficient to say that in the Goodcell ease the court said that a conclusion either way could be sustained. Under such circumstances the factual question of reputation was properly before the superior court in this mandamus proceeding. It was an issue, raised by the pleadings, essential to the determination of the substantial rights of the [358]parties. (Code Civ. Proc., § 1090.) It was proper to submit this factual question to the jury. The lone commissioner is not in a better position to “exercise an independent judgment” upon facts than twelve jurors. If a jury in deciding substantially the same question relative to the character of an applicant should decide contrary to the view held by the commissioner, it would be in effect a finding that the commissioner had abused the discretionary powers given him by the provisions of the statute. In this case there is evidence of McDonough’s good character covering a period of thirty years or more, and there is other evidence of good character confined to the.time after the denial of the previous application, covering a period of two years: In this case two trial judges refrained from setting aside such verdict.
There is no claim made by the commissioner on appeal that the verdicts of the jury upon which the judgments rest are in any way wanting in evidentiary support. In the inception of the proceeding the commissioner was directed to issue a license or to show cause why he had not done so. He filed a demurrer and an answer. In the answer it was alleged that McDonough was not entitled to a hearing “either by a jury or by the court,” and the allegation that he was “a man of good character and good business status and reputation, and is financially responsible to a substantial degree” was denied, thereby raising an issue upon the questions of fact, which the trial court submitted to a jury.
Whatever the position of the commissioner on petition for a writ of prohibition might have been which is res judicata on jurisdictional questions, on appeal he does not claim that petitioner was not entitled to a court hearing. He has receded from his original position that as an applicant McDonough was not entitled to the independent judgment of the court or that McDonough was not entitled to a trial by jury on proper facts. It is now the commissioner’s contention that the superior court judicial review should have been limited to whether a prior application had been denied within five years and whether there was an abuse of discretion in denying a hearing or denying the application for license. The commissioner also contends that if the provision in subdivision (c) of section 1733 is unconstitutional, it was the duty of the superior court to send the matter back to the commissioner for a hearing. This point has been previously considered. Since the enact[359]ment of section 1821 it is not necessary to do anything more than declare that under the code sections as now read together (Newport v. Caminetti, supra), a petition of an applicant may not be denied without a hearing. It was the commissioner’s duty under the terms of the alternative writ of mandate to issue the license or to show cause why he had not done so. He could have submitted to the jury the facts upon which he based his conclusion. He refused to do so. He should abide the result of the judgment based upon the verdict. In passing it should be noted from previous litigation referred to by the commissioner, and from more recent litigation, that when McDonough appeared before a jury in an extraordinary proceeding, matter or in a criminal case based upon the. “license” question, McDonough won, and when the matters of “license” appeared before the commissioner, the commissioner won. In his opening brief the commissioner states his position as follows: “ [W]here the Commissioner denies the application upon the ground that the applicant is not of good general reputation—the reviewing court must determine whether there is sufficient evidence to show a reasonable basis for the Commissioner’s action.” The reviewing court here was the superior court. The commissioner refused to introduce evidence to support his position. He did not participate in the examination of witnesses, but his legal representative was present during the jury trial, and participated in motions and objections in the absence of the jury. A certificate of the commissioner certifying facts found after a hearing is held to be prima facie evidence of such facts. (Ins. Code, § 1819.) Here there was no hearing.
Whatever has been said in reference to respondent Peter P. McDonough in Civil No. 12638 applies also to respondent Thomas McDonough, Civil No. 12639. As I view the facts and the law the commissioner has put himself in such a position that the judgment of the superior court should be affirmed.
Respondents’ petition for a hearing by the Supreme Court was denied May 10, 1945. Carter, J., and Schauer, J., voted for a hearing.