Opinion
Page __
__ Cal.App.2d __ 237 P.2d 722 FASCINATION, Inc. v. HOOVER et al. Civ. 18768. California Court of Appeals, Second District, Second Division Nov. 20, 1951.Hearing Granted Jan. 17, 1952.
[237 P.2d 723] Irving M. Smith, City Atty., of Long Beach, Philip J. Brady, John R. Nimocks, Deputy City Attys., Long Beach, for appellants.
Fred N. Howser, Los Angeles, for petitioner and respondent.
MOORE, Presiding Justice.
Petitioner is the owner of a certain type group game, a mechanical device known as and named 'Fascination.' In April, 1951, it applied to appellant Hoover, City Tax Collector of Long Beach for permission to operate the device in the Amusement Zone of Long Beach and deposited the requisite license fees. Also, it submitted such information as the Tax Collector required as provided by ordinance No. C-2232 of that city. Pursuant to such ordinance, Hoover referred the application to the offices of appellant Sutherland, City Prosecutor, and appellant Dovey, Chief of Police, for a determination as to the legality of the game. As a result of their investigation, Sutherland and Dovey acting in their official capacities concluded that the game violated existing gambling laws in that the element of chance predominated over the element of skill. Accordingly, they recommended against issuance of the license and respondent's application was subsequently denied by Hoover.
Thereafter, petitioner initiated this mandamus proceeding for the purpose of compelling the issuance of the license on the ground that appellants' action in denying the license was 'arbitrary, unreasonable and capricious.' After a trial of the issues raised by the answer of respondents the court concluded that 'the recommendations and findings of * * * Dovey and Sutherland * * * were not based on substantial evidence as they made only a cursory inspection to corroborate a pre-existing opinion. All of which conduct was arbitrary.' Judgment was accordingly entered [237 P.2d 724] directing the issuance of the peremptory writ of mandate. Petitioner thereupon applied to this court for an order under section 1110b of the Code of Civil Procedure.
Appellants now seek reversal of the judgment contending (1) that the finding of appellants' having acted in an arbitrary manner is unsupported by the evidence; (2) that the trial court erred in admitting and considering evidence which was not considered by appellants in making their determination; (3) that, in any event, the court should have remanded the matter to the administrative officers for further investigation rather than to have ordered the issuance of the license.
Although a close question is presented as to whether there is evidentiary support for the finding that appellants acted arbitrarily in denying Fascination a license, since the record discloses other errors requiring a reversal it will not be necessary to examine in detail the evidence as to the extent of appellants' investigation of the game.
At the trial of the application for the writ, the court, over the objection of appellants, permitted respondent to call as a witness one Robert P. Dillworth, a professor of mathematics at California Institute of Technology. Dr. Dillworth was qualified as an expert in the field of statistics and probabilities and was then permitted to testify as to tests and demonstrations he had conducted and supervised with respondent's Fascination equipment. Based upon these demonstrations wherein two experienced Fascination players were pitted against two inexperienced players the witness testified that in his opinion the game was one of skill.
The admission of such testimony was error. This evidence was not before the appellants and their investigating officers at any time prior to their final determination on respondent's application for a license and accordingly was outside the proper scope of the court's review on the hearing. The root of the error lies in the court's misconception of its powers of review in a proceeding of this nature. In effect, what the court did was to reweigh and to judge the intrinsic value of the evidence that had guided appellants in their determination. Such procedure was outside the scope of the inquiry which was limited to a determination, solely from a review of the record before the administrative officials, whether there was sufficient evidence to sustain their conclusion that the fascination device is a game of chance. Southern California Jockey Club v. California Horse Racing Board, 36 Cal.2d 167, 175, 223 P.2d 1. In other words, the scope of judicial review is limited to a determination of whether the officials abused the discretion vested in them by law. Such abuse would be indicated if it appeared from the evidence before the administrative officials that they had acted arbitrarily or capriciously or fraudulently. The court's finding is that the recommendations and findings of the officials were 'arbitrary' in that they made only a 'cursory inspection to corroborate a pre-existing opinion.' Inasmuch as their action could have been adjudged arbitrary only in the event there was not a sufficient factual basis before them for their conclusions, 36 Cal.2d at pages 174-175, 223 P.2d 1; McDonough v. Goodcell, 13 Cal.2d 741, 749, 91 P.2d 1035, 123 A.L.R. 1205, necessarily new and independent evidence not previously before the administrative officers had no place in such determination. Such evidence might tend to indicate that appellants erred in their conclusion that the game was not one of skill or science whereas that question was not before the court for decision. The officials have the discretion to decide the matter wrongly as well as correctly, but only in the event that there was no substantial evidence to support their decision can the court interfere. Maxwell v. Civil Service Commission, 169 Cal. 336, 339, 146 P. 869; Pratt v. Rosenthal, 181 Cal. 158, 164, 183 P. 542; Hansen v. State Board of Equalization, 43 Cal.App.2d 176, 179, 110 P.2d 453; Shannon v. McKinley, 62 Cal.App.2d 169, 178, 144 P.2d 433.
Respondent argues that the admission of such evidence could in no case be prejudicial. It is true that on appeal it is presumed that the court, sitting without a jury, did not base its finding on improperly [237 P.2d 725] admitted evidence where there is competent evidence to support it, Cordi v. Garcia, 56 Cal.App.2d 584, 589, 132 P.2d 887, but the record affirmatively shows that the trial court relied strongly upon the testimony of Professor Dillworth. This is shown first by the fact that after having heard Professor Dillworth's testimony the court received in evidence the testimony of Professor De Garmo, offered by respondents in opposition to the testimony of Professor Dillworth. Also, in his written opinion the trial judge expressly declared that he admitted the Dillworth testimony for the purpose of determining whether appellants had conducted a sufficient hearing and investigation. Although the opinion of the trial judge can never operate to impeach the court's findings and is generally of little effect on appeal, it is properly a part of the record before this court, Rule 5(a), Rules on Appeal; Taylor v. George, 34 Cal.2d 552, 556, 212 P.2d 505, and its declarations may be fairly invoked for the purpose of interpreting the findings. See Southern California Jockey Club v. California Horse Racing Board, supra, 36 Cal.2d 176, 223 P.2d 1.
Judgment reversed. Respondent's application under section 1110b of the Code of Civil Procedure is denied.
McCOMB, J., concurs in the judgment.