Dysart v. Daugherty

S. DYSART, Appellant, v. EDWIN M. DAUGHERTY, Commissioner of Corporations, Respondent.

COUNSEL

M. G. MacNeil and Jack P. Leonard for Appellant.

U.S. Webb, Attorney-General, and Warner I. Praul, Deputy Attorney-General, for Respondent.

OPINION

Crail, P. J.

Appellant, who was the petitioner in the trial court, sought a writ of review for the purpose of determining the validity of an order of the Commissioner of Corporations. A general demurrer to the petition was sustained without leave to amend and judgment entered accordingly. This is an appeal from said judgment.

[1] A writ of review will lie only to review the exercise of judicial functions. (Sec. 1068, Code Civ. Proc.) The legislature is without power, in the absence of a constitutional provision authorizing same, to confer judicial functions upon the respondent or any other state-wide administrative agency of similar character. (Constitution of California, art. VI, sec. 1.) Our courts have determined that the Commissioner of Corporations is authorized to exercise discretionary administrative functions but is without authority to exercise judicial functions. (Dominguez Land Corp. v. Daugherty, 196 Cal. 468, 482 [238 P. 703]; Schwab-Wilson etc. Corp. v. Daugherty, 15 Cal. App. 2d 701 [59 PaCal.2d 1057]; Standard Oil Co. v. State Board of Equalization, 6 Cal. 2d 557 [59 PaCal.2d 119].) It necessarily follows that this proceeding for a writ of review lacks an essential element and that the demurrer was properly sustained.

Judgment affirmed.

Wood, J., concurred.