Opinion
For Opinion on Hearing, see 63 Cal.Rptr. 21, 432 P.2d 717. Thomas C.Lynch, Atty. Gen., Warren H. Deering and Mark Lainer, Deputy Attys. Gen., for appellants and respondents.
Wirin, Rissman, Okrand & Posner, Paul M. Posner and Edward Raiden, Los Angeles, for respondent and appellant.
LILLIE, Justice.
Plaintiff corporation, engaged in the training of seeing eye dogs for blind persons and of blind persons to use said dogs, sought a declaratory judgment that sections On December 10, 1965, several months after the entry of judgment herein (April 28, 1965), plaintiff's license was formally reinstated by appellant board; such action followed plaintiff's employment of a duly licensed trainer who, it is asserted, was hired away from one of the two other licensed schools. Accordingly, the general rule immediately suggests itself that "the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." (Consol., etc., Corp. v. United A., etc., Workers, 27 Cal.2d 859, 863, 167 P.2d 725, 727.) As that case points out, 'It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]' (Supra, p. 863, 167 P.2d, p. 727.) As shown above, however, plaintiff not only sought injunctive but declaratory relief, to wit, a declaratory judgment that the subject legislation is unconstitutional on its face and as applied to plaintiff's operation; since it is established that the constitutionality of a statute may be tested in such manner (Lord v. Garland, 27 Cal.2d 840, 852, 168 P.2d 5), the general rule governing mootness becomes subject to the case-recognized qualification that an appeal will not be dismissed where, despite the happening of the subsequent event, there remain material questions for the court's determination. This qualification or exception has been applied to actions for declaratory relief upon the ground that the court must do complete justice once jurisdiction has been assumed (Bisno v. Sax, 175 Cal.App.2d 714, 731, 346 P.2d 814), and the relief thus granted may encompass future and contingent legal rights.
'Thus, while it has been said that the declaratory judgment acts necessarily deal with present rights, the 'present right' contemplated is the right to have immediate judicial assurance that advantages will be enjoyed or liabilities escaped in the future.' (15 Cal.Jur.2d 116, citing Borchard. Declaratory Judgments (2d ed.) pp. 927-929.)
With respect to the proposition last stated, both sides agree that the instant judgment necessarily affects their rights in the future. Thus, if the entire legislation should be stricken down, defendant board would be powerless to enforce its provisions against plaintiff Foundation or any other DiGiorgio Fruit Corp. v. Department of Employment,
Too, since at least one of the statutes in controversy regulates the public solicitation of funds (Bus. & Prof.Code, § 7210.5), a question of general public interest is presented. (County of Madera v. Gendron, 59 Cal.2d 798, 804, 31 Cal.Rptr. 302, 382 P.2d 342, 6 A.L.R.3d 555; DiGiorgio Fruit Corp. v. Department of Employment, supra, 56 Cal.2d 54, 58, 13 Cal.Rptr. 663, 362 P.2d 487.) The cited cases authorize the retention of an appeal, otherwise dismissable for mootness, when such considerations appear and the questions involved are reasonably sure to arise again. Furthermore, the issues here not only involve the people solicited but they likewise affect our handicapped blind upon whose behalf such solicitations are made; and by the enactment of legislation favoring the blind (Welf. & Inst.Code, § 12500 et seq.; Pen.Code, §§ 643a, 643.5), the Legislature has impliedly made their welfare a matter of continued public interest. For all of the above reasons we are accordingly disposed to decide the appeals on their merits.
Plaintiff's constitutional attack on the entire legislation is based on the several grounds set forth in its complaint as amended; generally, it is alleged to be unreasonable and arbitrary and violative of due process. On appeal, however, plaintiff directs the major part of its argument to the invalidity of sections 7214 and 7209, as well as section 7210.5 which was only partially invalidated. Thus, section 7214, requiring the automatic suspension of a school's license if there is no licensed trainer in charge, is said to violate due process in that no provision is therein made for a hearing before an appropriate department or agency; according to plaintiff, there is no 'compelling public interest' justifying the harshness of this enactment such as confronted the court in Escobedo v. State of California, Dept. of Motor Vehicles, 35 Cal.2d 870, 222 P.2d 1, where the suspension of an automobile operator's license under our financial responsibility laws was upheld. Section 7209, defining a person's eligibility for examination as a trainer, is assertedly vague and indefinite and allows for the arbitrary use of discretion by appellant board in contravention of settled constitutional guarantees. With respect to section 7210.5, plaintiff contends that the solicitation of funds for charitable purposes is an exercise of free speech which has been unconstitutionally denied by the statute in question. As for defendants, not only is the validity of the legislation defended by them, but the further claim is made (as it was unsuccessfully below) that plaintiff was without standing to initiate the instant litigation because it had not exhausted its administrative remedies prior thereto. Since this latter point, if well taken, is dispositive of the instant appeal, we resolve that question before a determination of the other issues before us.
Where an administrative remedy is provided by statute, this remedy must ordinarily be exhausted before the courts will act. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 109 P.2d 942, 132 A.L.R. 715.) It appears that in or about May of 1963, when plaintiff had a valid license, it discharged its then trainer and immediately became subject to the provisions of section 7214; it further appears that in August of 1964 an investigation was commenced by the attorney general's office into plaintiff's operations, including the solicitation of funds. No formal accusation, United States v. Superior Court,
People v. Coit Ranch, Inc., Walker v. Munro,We first determine the claim of plaintiff corporation that certain key sections of the subject chapter invalidate the legislation in its entirety, bearing in mind (what courts have repeatedly declared) that every intendment is in favor of the constitutionality of the legislative act. (Lockard v. City of Los Angeles, 33 Cal.2d 453, 460, 202 P.2d 38, 7 A.L.R.2d 990.) As stated in Lockard, '* * * we must keep in mind the fact that the courts are examining the act of a coordinate branch of the government--the legislative--in a field in which it has paramount authority, and not reviewing the decision of a lower tribunal or of a fact-finding body. Courts have nothing to do with the wisdom of laws or regulations, and the legislative power must be upheld unless manifestly abused so as to infringe on constitutional guaranties. The duty to uphold the legislative power is as much the duty of appellate courts as it is of trial courts, and under the doctrine of separation of powers neither the trial nor appellate courts are authorized to 'review' legislative determinations. The only function of the courts is to determine whether the exercise of legislative power has exceeded constitutional limitations.' (Pp. 461-462, 202 P.2d p. 43.)
First, it is contended that section 7214 exceeds constitutional limits by providing for the automatic suspension of plaintiff's license without a hearing 'if there is no licensed trainer in charge * * .' Statutes of the kind here in suit should be construed to require a hearing unless the legislative enactment expressly provides otherwise--and that is the situation here. Both sides rely on DiGenova v. State Board of Education, 45 Cal.2d 255, 288 P.2d 862, and Escobedo v. State of California, Dept. of Motor Vehicles, 35 Cal.2d 870, 222 P.2d 1, apparently the only Cali fornia Plaintiff seeks to distinguish DiGenova with the statement that neither the school nor the trainer (unlike plaintiff DiGenova) has been convicted of, or even charged with, any public offense; too, in the present case two licenses are involved, that of the school and the trainer, and the former becomes suspended upon the suspension of the latter. The statute upheld in Escobedo, however, does not make conviction of a crime a condition precedent to the summary result enacted, and sometimes vicarious liability will be imposed when the circumstances fairly warrant such a consequence. Since both cases, above cited, concededly turn upon the finding of a compelling public interest, plaintiff argues that no such finding can here be made. Thus, thousands of uninsured motorists having been involved in accidents, the impracticability of requiring a hearing in each case justified the legislation challenged in Escobedo. According to plaintiff, defendant board has hardly a minimal percentage of the business which would have engaged the appropriate agency if Escobedo had reached a contrary conclusion; specifically, plaintiff was only one of three licensed schools in California at the time of the trial. But this argument is wholly out of harmony with plaintiff's contentions against the mootness of this appeal; in that connection it is said that the determinations made below 'affect more than the rights of this particular respondent and, in effect, affect all schools engaged in the training of seeing eye dogs and blind persons, and affect all the people of the People of the State of California.' Continuing, 'Such determinations are a matter of a general public interest and survive the existence of the particular facts that may have prompted the initiation of the lawsuit.'
'Inasmuch as the Legislature of this state has seen fit, in the exercise of its power, to impose upon petitioner criminal liability for the offense which was committed by his employe, we cannot, in the light of the authorities above cited, hold that the statute as written, or as applied here, invades a constitutional right of the petitioner.' (In re Marley, 29 Cal.2d 525, 531, 175 P.2d 832, 836.)
Solely in view of the above concession, possibly we would be justified in rejecting the proposition presently contended for; but there are other considerations militating against the instant claim for unconstitutionality. Citing Carroll v. California Horse Racing Bd., 16 Cal.2d 164, 105 P.2d 110, plaintiff admits that there is considerable uncertainty in the cases on the question of the legislative power to authorize revocation of licenses without notice Doyle v. Board of Barber Examiners,
The next key statute criticized, section 7209, provides in part that 'A person to be eligible for examination as a trainer of guide dogs for the blind must * * * (2) have a knowledge of the special problems of the blind and how to teach them, * * * ' and '(4) be suited tempermentally and otherwise to train blind persons in the use of guide dogs, * * *.' The above provisions, says plaintiff, are both vague and indefinite and arbitrarily vest in defendants, without any adequate yardstick or guideline, an unlimited discretion to determine the applicant's eligibility. Other subdivisions of the same section are criticized because they assertedly work a personal hardship on plaintiff and other schools in view of the 'paucity' of available personnel interested in this form of endeavor. These arguments must be tested by the principle that 'When the state sees fit to regulate upon a matter which is within its police power, its authority over the subject is plenary and can be reviewed by the courts only to the extent of determining whether the regulation is reasonable.' (Sandstrom v. California Horse Racing Board, 31 Cal.2d 401, 407-408, 189 P.2d 17, 21, 3 A.L.R.2d 90.) Also, and more pertinent here, 'Those things which, though not evil in themselves, if practiced by those not adequately trained therein by education and experience, or by those not morally qualified or of sufficient age or discretion, may endanger the health, safety, morals or general welfare of the people, may not be prohibited but may be controlled by reasonable regulation.' (Whitcomb v. Emerson, 46 Cal.App.2d 263, 273, 115 P.2d 892, 897.) The case just cited goes on to quote from Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623, that 'it has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely; * * * The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty.' (Supra, 46 Cal.App.2d pp. 273-274, 115 P.2d p. 898.) The instant claim about personal hardship is thus answered by the Riley v. Chambers,
We also take notice of the fact that section 7209 was amended in 1953 after its original enactment in 1947, presumably after further legislative study of the qualifications required for the subject occupation. In re Porterfield, 28 Cal.2d 91, 103, 168 P.2d 706, 714, 167 A.L.R. 675, wisely observes that 'The people have a right of experimentation, of evolution through trial and error.' Since we are told that California is the only state which licenses schools of the type conducted by plaintiff, we cannot assume that the Legislature was unaware of that fact when the subject chapter was added to the subject code and subsequently amended. The failure to change the law in the respects here urged after a six-year period of 'trial and error' evidences a legislative intent 'to leave the law as it stands in the aspects not amended.' (Cole v. Rush, 45 Cal.2d 345, 355, 289 P.2d 450, 456, 54 A.L.R.2d 1137.) With the wisdom of such intent we cannot, and will not, concern ourselves. The statute being a reasonable regulatory enactment insofar as it determines and defines the several license eligibility requirements, it may not be held to be unconstitutional.
Little need be said about plaintiff's next point, which is only briefly discussed in its brief, that the entire Act offends the equal protection clause of both state and federal constitutions by selecting guide dog charities for special licensing procedures, thus favoring other charities which are not similarly regulated. It is a fundamental rule of constitutional law recognized in all jurisdictions in this country that legislation is not discriminatory if it relates to and operates uniformly upon the whole of a single class properly selected. (11 Cal.Jur.2d § 273, pp. 719-720.) 'There is no constitutional requirement of uniform treatment, but only that there be a reasonable basis for each classification.' (Bilyeu v. State Employees' Retirement System, 58 Cal.2d 618, 623, 25 Cal.Rptr. 562, 565, 375 P.2d 442, 445.) Bilyeu also points out that a wide discretion is vested in the Legislature in making the classification and every presumption is in favor of the validity of the statute. It is enough to note that the Legislature, because of the special problems of the blind, has chosen guide dog schools for regulation and licensing, and the law operates equally to all persons engaged in the operation of such schools. The Act is clearly not open to constitutional attack upon the further ground here asserted.
Section 7210.5, the final statute in the chapter singled out for attack, prohibits the solicitation of funds unless the person concerned holds a valid and unimpaired license issued by defendant board; and, as shown above, such license becomes ineffective immediately upon the trainer's separation from service. That reasonable regulation of charitable organizations is within a government's police power has long been established; such regulation does not intrude upon the right of free speech. (Gospel Army v. City of Los Angeles, 27 Cal.2d 232, 245-246, 163 P.2d 704; Matter of Application of Dart, 172 Cal. 47, 155 P. 63, L.R.A.1916D, 905.) 'The occupation of soliciting contributions to charitable purposes is clearly so far subject to the police power that it may be regulated by laws or ordinances providing for a reasonable supervision over the persons engaged therein and for the application and use of the contributions received to the purposes intended, in order to prevent unserupulous persons from obtaining money or other things under the pretense that they were to be applied to charity, and to prevent the wrongful diversion of such funds to other uses, * * * ' (Matter of Application of Under all the circumstances, we agree with the trial court that the blanket proscription of funds set forth in the statute is unreasonable and arbitrary; a 'reasonable period,' fixed by the court at 120 days, should be given any school licensed under the subject chapter within which to solicit funds even though still without the services of a trainer. Defendants argue that if the line can be drawn at 120 days, it can be drawn at 50 days, 10 days or less; to this we say that reasonable minds may differ on the duration of the determined 'grace period' and that makes such determination conclusive upon a reviewing court.
The portions of the judgment appealed from are affirmed.
WOOD, P. J., and FOURT, J., concur.