(dissenting). I am unable to agree with the reasoning or the conclusion reached by my associates in'this case. And in view of the importance of the questions involved, I deem it my duty to indicate the reasons for my dissent. It should be noted at the outset that the object of the license statute involved in this action is regulation, and not revenue. The power to tax is exercised to raise revenue; the police power is exercised to promote the order, safety, health, morals, and general welfare of society." While the police power is not susceptible of exact definition or limitation, the real object of such power, “and that indeed which in its broad sense includes every instance of its exercise, is the securing of the general welfare, comfort, and convenience of the people”. (12 C. J. 920) and to that end it may be exercised *404to meet the changing conditions of society, and “put forth in aid of what is sanctioned by usage or held by prevailing morality or strong preponderant opinion to bo greatly and immediately necessary to the public welfare.” 9 Enc. U. S. Sup. Ct. Rep. 523; Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A.(N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487. Where a subject is within the police power it is for the legislature, within constitutional limits, to determine what the remedy shall be. The police power, however, is not above the Constitution, but “is always subject to the rule that the legislature may not exercise any power that is expressly or impliedly forbidden to it by the state Constitution.” 12 C. J. 929. The object of a police measure must bo the public good. And the business sought to be regulated must, in some measure, be affected with public interest. For “no general power resides in the legislature to regulate private business, or prescribe the conditions under which it shall be conducted so long as the business is not affected with public interest. The merchant, manufacturer, artisan and laborer under our system of government are left to pursue and provide for their own interest in their own way, untrammeled by burdensome and restrictive regulations, which however common in rude and irregular times are inconsistent with constitutional liberty.” 9 Enc. U. S. Sup. Ct. Rep. 521, 522. And “the legislature may not, under guise of protecting the public interest, deny to any person the equal protection of laws, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.” 9 Enc. U. S. Sup. Ct. Rep. 523. See also 6 R. C. L. pp. 226-228. But “to justify the state in interposing its authority in behalf of the public, it must appear that the interests of the public generally, as distinguished from those of a particular class, require such interference.” 9 Enc. U. S. Sup. Ct. Rep. 523.
While the legislature, in the exercise of the police power, may regulate all professions, trades, occupations, and business enterprises that are of a quasi public nature by providing such rules or restrictions as to safeguard the general welfare of the public, such legislative power has its limits, and “is subject to the qualification that the measures adopted for the purpose of regulating the exercise of the rights of liberty and the use and enjoyment of property must be designed to effect some public object which government may legally *405accomplish, that they must be reasonable and have some direct, real, and substantial relation to the public object sought to be accomplished, and that the governmental power is not to be arbitrarily or colorably exercised or used as a subterfuge, for oppressing some individual or class of individuals. In short, the exercise of the police power is subject to judicial review, and personal and property rights cannot bo wrongfully destroyed by arbitrary enactment. If the means employed have no real or substantial relation to the public objects which government may legally accomplish; if they are arbitrary and unreasonable, beyond the necessities of the ease, — the judiciary will disregard' mere forms and interfere for the protection of rights injuriously affected by such illegal action.” 5 Enc. U. S. Sup. Ct. Rep. 556, 557.
“The police power of the state extends only to such measures as are reasonable, and the general rule is that all police regulations must bo reasonable under all circumstances. In every case it must appear that the means adopted are reasonably necessary and appropriate for the accomplishment of a legitimate object falling within the domain of the police power. A statute to be within this power must be reasonable in its operation upon the persons whom it affects, and not unduly oppressive. The validity of a police regulation therefore primarily .depends on whether under all the existing circumstances the regulation is reasonable and whether it is really designed to accomplish a purpose properly falling within the scope of the police power.” 6 R. C. L. p. 236.
“All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safety, health, or comfort of the public. . . . Regulation which impairs or destroys rather than preserves ... is within the condemnation of constitutional guaranties.” 6 R. C. L. p. 239. See also 12 C. J. 934.
While it is true, a license is generally held to be neither a contract nor property, within the technical definitions of those terms, it is nevertheless a personal light or franchise, which in many instances has great value. In the case at bar, for instance, the revocation of plaintiff’s license (if sustained) deprives him of the right to pursue the vocation whereby he earns his livelihood, destroys an established business, and casts upon him the odium of having committed illegal acts, and being unworthy of permission to continue in his business. *406Manifestly few determinations can in a greater degree affect the rights to acquire, possess, and protect property and reputation, and to pursue and obtain happiness (which are guaranteed to all men by § 1 of the state Constitution), than the determination of the dairy commissioner to revoke petitioner’s license.
While the legislature may doubtless confer discretionary powers upon administrative boards or officers to grant or withhold or revoke licenses or permits to carry on trades or occupations, or perform acts, which are properly the subject of police regulation (although it has been held in some of the state courts “to be contrary to the spirit of American institutions to vest this dispensing power in the hands of a single individual,” see Chicago v. Trotter, 136 Ill. 430, 26 N. E. 359; Re Frazee, 63 Mich. 396, 6 Am. St. Rep. 310, 30 N. W. 72; State v. Fiske, 9 R. I. 94; Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239; Sioux Falls v. Kirby, 6 S. D. 62, 25 L.R.A. 621, 60 N. W. 156), the regulations must be reasonable and the power conferred exercised in a lawful and constitutional manner. 17 R. C. L. pp. 538-542.
“In such cases the doctrine is, in the absence of anything upon the face of the law to the contrary, that the discretion vested in such-tribunal, board, or official, is a judicial or legal discretion, and it will not be presumed, in absence of proof to the contrary, that it has been, or is being, used in an unreasonable, arbitrary, or oppressive manner.” But when the law vests absolute and arbitrary discretion in a board or official, without right of appeal therefrom, to grant or refuse or revoke a license for conducting a legitimate business; or when the power granted to such administrative board or officer is shown to have been arbitrarily exercised under sanction of state authority, the‘party thus unlawfully oppressed may secure redress in the courts. 4 Enc. U. S. Sup. Ct. Rep. 368, 369, 372. See also 17 R. C. L. p. 539, note 20.
And even in cases involving revocation of licenses in the exercise of official discretion, the courts have not refrained from inquiring into the facts far enough to ascertain whether the facts presented a case for the exereise of reasonable discretion, or whether the power of revocation had been, or was attempted to be, exercised capriciously, arbitrarily, or oppressively. William Fox Amusement Co. v. McClellan, 62 Misc. 100, 114 N. Y. Supp. 594; Edelstein v. Bell, 91 Misc. *407620, 155 N. Y. Supp. 590; Bainbridge v. Minneapolis, 131 Minn. 195, L.R.A.1916C, 224, 154 N. W. 964.
It should be remembered that the business sought to be regulated by the statutes under consideration is one inherently lawful and beneficial to society. In dealing with licenses for the conduct of business of this nature, the courts have not hesitated to set aside measures vesting arbitrary powers in boards (or especially in a single individual) to issue or revoke licenses, or to set aside the arbitrary acts of such board or individual, when acting under a law fair on its face. In Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064, the Supreme Court of the United States held an ordinance of the city and county of San Francisco, providing that it should be unlawful for any person to engage in the laundry business within the -corporate limits “without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone,” to be violative of the 14th Amendment to the Federal Constitution.
In determining the reasonableness of a license statute, the nature of the business sought to be regulated must be considered. For it is self-evident that there is a vast distinction between a license granted for the conduct of a business which is inherently lawful and harmless and relating to a subject which is useful to the community, and one granted for the conduct of a business which is inherently dangerous, or “which ministers to and feeds upon human weakness and passions.” Manifestly, conditions and restrictions placed upon licenses of the latter kind, and entirely reasonable as applied to such licenses, might be entirely unreasonable as applied to licenses of the former kind. This distinction was expressly recognized and pointed out by the Supreme Court of the United States in Crowley v. Christensen, 137 U. S. 86, 34 L. ed. 620, 11 Sup. Ct. Rep. 13. That case involved a retail liquor dealer’s license. The validity of the ordinance and the action of the police commissioners in refusing to issue a license were assailed. It was asserted that the ordinance was invalid under the principle announced in Yick Wo v. Hopkins, supra, as a delegation of arbitrary discretion to the police commissioners. In distinguishing the two cases, the Supreme Court of the United States, said: “It will thus be seen that that case [Yick Wo v. Hopkins] was essentially different *408from the one now under consideration, the ordinance there held invalid vesting uncontrolled discretion in the board of supervisors with reference to a business harmless in itself and useful to the community; and the discretion appearing to have been exercised for the express purpose of depriving the petitioner of a privilege that was extended to others. In the present case the business is not one that any person is permitted to carry on without a license, but one that may be entirely prohibited or subjected to such restrictions as the governing authority of the city may prescribe.” 137 U. S. 94, 95.
One of the most effective safeguards against the arbitrary acts of public officials is an opportunity to be heard. And the weight of judicial authority seems to support the doctrine that a person engaged in a business inherently lawful and useful to society may not be deprived of the license to conduct it, without opportunity to defend his right to maintain it. The right to a full and fair hearing by an applicant for a license was recognized and upheld in Hart v. Folsom, 70 N. H. 213, 47 Atl. 603. Cited in the majority opinion. And it has been said that the theory that' a person may be deprived of a license without an opportunity to be heard in his own defense “is so opposed to the principles of the common law that any fact affecting the rights of an individual shall be investigated and determined ea; parte, and without opportunity being afforded to the party to be affected thereby to be heard,” that a law ought not to be construed as contemplating such procedure unless that purpose is expressed in the plainest terms. State ex rel. Powell v. State Medical Examining Bd. 32 Minn. 324, 50 Am. Rep. 575, 20 N. W. 238.
In considering the question of revocation of a license to practise law, the Supreme Court of the United States said: “Before a judgment disbarring an attorney is rendered, he should have notice of the grounds of complaint against him, and ample opportunity of explanar tion and defense. This is a rule of •natural justice, and should be equally followed when proceedings are taken to deprive him of his right to practise his profession, as when they are taken to reach his real or personal property. . .' . The principle that there must be citation before hearing, and 'hearing or opportunity of being heard before judgment, is essential to the. security of all private rights. .Without its observance no one would be safe from oppression where-*409ever power may be lodged.” Ex parte Robinson, 19 Wall. 512, 22 L. ed. 208. See also People use of State Bd. of Health v. McCoy, 125 Ill. 289, 17 N. E. 786; State v. Schultz, 11 Mont. 429, 28 Pac. 643.
Leaving constitutional consideration on one side, the idea that an individual appointive, administrative official may revolco a license for the conduct of a lawful business, without affording the licensee a full opportunity to be heard, is so contrary to the spirit of our institutions, that it ought not be presumed that the legislature intended to confer such power or prescribe such procedure unless it has said so in express terms.
• The power to issue and revoke licenses' is vested in the dairy commissioner, and no provision is made for an appeal from his decision. The dairy commissioner is appointed by the commissioner of agriculture and labor.- Comp. Laws 1913, § 2836. Chapter 103, Laws 1917, empowers the dairy commissioner “to revoke any license issued under the provision of this act if the holder is convicted of a failure to comply with the State Dairy Laws." And chapter 105, Laws 1917, authorizes the dairy commissioner “to revoke a license on evidence that licensee has violated any of the existing dairy statutes, or has refused to comply with all lawful requests of the dairy commissioner or his authorized agents." There are many statutory provisions relating to the business of operating creameries and cream stations. The test for milk and cream is carefully and minutely prescribed by the statute. Comp. Laws 1913, § 2853. And it is made a misdemeanor “to use any other means of determining the amount of butter fat in milk or cream than the Babcock test, or to use any other size of milk measure, weight, test tubes, or bottles” than those described in the statute, or “to manipulate, underread, or overread the Babcock test.” Comp. Laws 1913, §§ 2853, 2854, 2864.
The words “convicted” and “evidence” have well-settled, legal meanings. Manifestly, under our laws no one can be “convicted” without being afforded an opportunity to be heard in his defense, and mere rumors and hearsay statements, not made matters of record, but -whispered in secret to a public officer, do not constitute evidence which may form the basis for an official act, requiring the exercise of judgment and discretion. Tet, in the case at bar, the dairy commissioner attempted to revoke a valuable franchise, held by the petitioner, for *410the avowed reason that the petitioner had committed criminal acts, — and this adjudication was made solely upon rumors or hearsay statements, and without the petitioner being afforded an opportunity to bo heard.
“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. . . . The fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Bights, the government of the commonwealth “may be a government of laws, and not of men.” For, the very idea that one man may be compelled to hold his life, or the means of living or any material right essential to.the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.” Yick Wo v.Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup; Ct. Rep. 1064.
The majority members hold that, inasmich as the petitioner requested and obtained a hearing before the commissioner of agriculture and labor, he is bound by the decision rendered by such official. I believe this conclusion to be erroneous. The commissioner of agriculture and labor is an administrative officer. He has such powers only as are conferred upon him by law. N. D. Const. § 83. It is conceded by the majority members that the commissioner of agriculture and labor has no authority under our statutes to review the actions of the dairy commissioner with respect to the revocation of licenses issued under the Dairy Statutes. This being so, how can a hearing before him be of any consequence? If such hearing constitutes due process, and the parties become bound by the determination, then by similar process of reasoning it should be held that parties who go before a justice of peace and litigate title to realty, or- some other question outside of the justice’s jurisdiction, become bound by, and estopped to question to validity of, the decision; or that parties by submitting a controversy *411to a person selected by them clothes the person selected with authority to render a binding decision upon the questions submitted.
It is also suggested in the majority opinion that a party who accepts a license under the provisions of a statute is precluded from assailing the validity of any of the conditions imposed by the statute. Under the view I have taken of the case, the question is not necessarily involved, as in my opinion the statutes contemplate that the licensee shall have notice, and full opportunity to be heard, before his license is canceled; and that whatever discretion the dairy commissioner has with respect to the issuance or revocation of licenses must be exercised fairly and impartially,, in harmony with the fundamental principles of American institutions.
In this connection, however, I deem it proper to observe that while it is true that a person may, under certain circumstances, waive the right to question the constitutionality of a statute, and may (with certain exceptions) even waive constitutional provisions intended for his benefit, it does not follow that a person who accepts a license will be deemed to have assented to conditions or restrictions sought to be imposed in violation of his constitutional rights.
In considering this question the Supreme Court of the United States said: “The defendant, however, insists that some of the provisions of the statute are in violation of the Constitution of the United States, and if it obtained the required license, it would be held to have accepted all of its provisions, and (in the same words of the statute) Thereby to have agreed to comply with the same’ § 1. The answer to this question is that the acceptance of a license, in whatever form, will not impose upon the licensee an obligation to respect or to comply with any provisions of the statute or with any regulations prescribed by the State Railroad and Warehouse Commission that are repugnant to the Constitution of the United States. A license will give the defendant full authority to carry on its business in accordance with the valid laws of the state and the valid rules and regulations prescribed by the Commission. If the Commission refused to grant a license, or if it sought to revoke one granted, because . . . the licensee in the other refused to comply with statutory provisions or with rules or regulations inconsistent with the Constitution of the United States, the rights of the applicant or the licensee could be protected and enforced by *412appropriate judicial proceedings.” W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 45 L. ed. 619, 21 Sup. Ct. Rep. 423. See also San Francisco v. Liverpool & L. & G. Ins. Co. 74 Cal. 113, 5 Am. St. Rep. 425, 15 Pac. 380; Hibbard v. State, 65 Ohio St. 574, 58 L.R.A. 654, 64 N. E. 109.
The majority members also hold that petitioner has mistaken his remedy. It is stated that his remedy, if any, is mandamus, and not certiorari.
Under our statute “the writ of mandamus may be issued . . . to any inferior tribunal, corporation, board or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.” Comp. Laws 1913, § 8457.
And, “a writ of certiorari may be granted . . . when inferior courts, officers, boards or tribunals' have exceeded their jurisdiction and there is no appeal, nor, in the judgment of the court, any other plain, speedy and adequate remedy.” Comp. Laws 1913, § 8445.
Mandamus lies to compel action to be taken by the inferior body or officer. Certiorari lies to review action which has been taken by an inferior body or officer. 11 C. J. 90; 26 Cyc. 142. While mandamus may be invoked to compel the exercise of official discretion, it cannot compel such discretion to be exercised in a particular way (26 Cyc. 159). Nor can such discretion be controlled or reviewed by mandamus, when it has once been exercised. State ex rel. Dakota Hail Asso. v. Carey, 2 N. D. 36, 49 N. W. 164; Sawyer v. Mayhew, 10 S. D. 18, 71 N. W. 141.
The rule generally prevailing is that only acts judicial or quasi judicial in their nature are reviewable by certiorari. But under the laws of this state the writ is not confined to a review of judicial or quasi judicial proceedings, but extends to every case where the inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error, appeal, nor, in the judgment of the court, any other plain, speedy and adequate remedy. State ex rel. Johnson v. Clark, 21 N. D. 517, 131 N. W. 715. See also 11 C. J. 121.
And “it is a general rule of the common law that when a new juris*413"diction is created by statute, and the court or officer exercising it proceeds in a summary way or in a course not according to the common law, and a remedy for the revision of its exercise is not given by the .statute creating it, certiorari will lie.” 4 Enc. Pl. & Pr. 73.
In State ex rel. Johnson v. Clark, supra, this court reviewed the action of the city council of the city of Minot in annexing certain territory to such city, and held that the claim “on the part of the petitioner that the city council did not have jurisdiction to act by reason of the failure to post and print notices” of the annexation proceeding, constituted such attack upon the jurisdiction of the city council as to make it a proper question for review by certiorari. And it seems that the authorities generally hold that action taken without legal notice constitutes an “excess” of jurisdiction and is reviewable by certiorari. 11 C. J. 105; 4 Enc. Pl. & Pr. 93.
It seems to me that under the rule laid down in State ex rel. Johnson v. Clark, supra, the question raised by the petitioner that the dairy commissioner exceeded his jurisdiction in revoking the license without giving the petitioner notice and an opportunity to be heard, is one properly reviewable by certiorari. There is no question of fact presented. The questions presented are purely questions of law, with respect to the powers and jurisdiction of the dairy commissioner. It is conceded that he revoked petitioner’s license without notice, and without affording him an opportunity to be heard; and that the dairy commissioner based his action upon rumors or hearsay statements submitted to him in the absence, and without the knowledge, of the petitioner. In my opinion such action was wholly unwarranted under the statutes, and contrary to the principles of natural justice.
The view I have taken of the statutes involved in this proceeding renders it unnecessary to determine to what extent the legislature may regulate the business of purchasing milk and cream, and I therefore express no opinion as to whether the license regulations contained in chapters 103 and 105, Laws 1917, are reasonable or unreasonable.
Robinson, J.
(dissenting). In this case it appears that in August, 1917, at Hazen, North Dakota, Cofman, the appellant, was conducting a cream station under a license from the dairy commissioner, issued in May, 1917. On August 3d, the commissioner wrote a letter to Cof*414man, purporting to revoke his license, and directed kirn to close his cream station by August 15 th. This revoking letter was written without any prior notice to Cofman and without giving him any hearing or any opportunity to refute the charges made against him. That charge, as stated in the letter, was that he had “overread the cream tester on one can of cream as much as 4 per cent, and that on two cans the weight was 2 pounds short.” .
Cofman appealed to the Commissioner of agriculture and labor, and though the statute does not provide for any such appeal, yet as a matter of courtesy Cofman was given a chance to prove his innocence. He claimed that, until specific charges were made against him and until proven guilty by competent testimony, his innocence should be presumed; but the commissioners held that the license was not a property right, and that it was merely a gratuitous permission which might be revoked without a hearing and without cause. However, without making any formal charge against Cofman and without any findings of fact, the commissioner of agriculture heard evidence and made a grandiloquent order and decree affirming the order of the dairy commissioner. From an order of the district court denying a review by certiorari, Cofman appeals to this court. The whole procedure is based on a gross misconception of the law. A license may or it may not involve any property right, but a license to conduct a cream station or a creamery, to practise law or medicine, or to follow any business vocation, is a property right, ,of which a person may not be deprived in an arbitrary manner and without due process of law. By due process of law is meant the law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.
On May 15, 1917, Cofman was issued a license to conduct a cream station at Hazen. It was issued under chapter 103, Laws 1917. Tho license is granted to a qualified person for one year upon payment of a fee of $2 and renewed on payment of $1. And the dairy commissioner is given authority to revoke any license if the holder is “convicted of a failure to comply with the State Dairy Laws.” To convict is to prove and find guilty of an offense, crime, or wrong. The statute gives no authority to revoke a license until the holder has been tried and convicted of a failure to comply with the Dairy Laws. In law thefe can be no conviction of a wrong without a -formal written accusa*415tion and a fair opportunity for a trial. And until the accused is proven guilty, he is presumed to be innocent. He may not be called upon to prove his imiocence. He must be confronted with the witnesses against him, and have a reasonable opportunity to cross-question them and to disprove their testimony.
Cofman had none of these opportunities and guaranties. The commission acted as if they had an absolute right to revoke the license-without any written accusation or any conviction of wrong.
As the whole record is before this court, there is no reason for a writ directing the dairy commissioner or the secretary to duplicate and certify the same; and in regard to the merits of the case, there is no question of doubt. There is no charge or evidence that Cofman did wilfully overread his cream tester, or underread the weight of his two cans of cream, and there is no claim that on such reading any person can be always perfect and accurate, or that the cream tester is always perfect and accurate, and the same is true of the different scales used in weighing cream cans, and from the record now before the court it does appear that the revocation of the license and the whole procedure was absolutely void.