The dissent of my Brother Burke, with which I concur in all respects, requires no amplification. I trust there is no impropriety in a reiteration of some of its statements and an emphasis of its implications.
*56The principle of separation of powers upon which the majority predicate their opinion is, of course, an integral part of our constitutional structure—but the keystone of that structure is the proposition that all power flows from the People. Before and certainly after Dierssen (1941), as pointed out by Burke, J., the bench and bar were convinced that the Constitution had been adequately amended by the People to endow a “local agency” to make binding findings of fact when such findings are based upon substantial evidence.
The new construction announced by the majority does not remotely suggest any lack of due process requirements in the amendment construed and sub silentio concedes that due process has been complied with in the hearings conducted by a “local agency,” within the meaning of current cases such as Sniadach v. Family Finance Corp. (1969) 395 U.S. 337 [23 L.Ed.2d 349, 89 S.Ct. 1820]; Goldberg v. Kelly (1970) 397 U.S. 254 [25 L.Ed.2d 287, 90 S.Ct. 1011]; Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593]; Randone v. Appellate Department (1971) 5 Cal.3d 536 [96 Cal.Rptr. 709, 488 P.2d 13]; and Rios v. Cozens (1972) 7 Cal.3d 792 [103 Cal.Rptr. 299, 499 P.2d 979]. The reconstruction of the constitutional amendment announces to both bench and bar that over the years each has erroneously assumed that the amendment was broad enough in scope to endow a “local agency” to make findings of fact in those cases which affected fundamental vested rights. The new construction announces that a trial judge, by way of mandate review, who has neither seen nor heard the witnesses may: albeit he has only a paper record, decide which of the witnesses are entitled to full or something less than full credit; make an independent analysis of the evidence; ignore, modify or reverse the findings of the “local agency” even though supported by substantial evidence; and pronounce a judgment modifying or reversing the judgment of the “local agency.” The majority construction sets up a system of review comparable to that which now enables any federal district judge to nullify the final decision of any state court in a criminal case when a question of constitutional right is presented. (Townsend v. Sain (1963) 372 U.S. 293 [9 L.Ed.2d 770, 83 S.Ct. 745].)1
*57The difficulty of determining the sweep of fundamental and vested rights (Bixby v. Pierno, 4 Cal.3d 130, 139, 145 [93 Cal.Rptr. 234, 481 P.2d 242]) and the scope of what binding fact power has been abandoned by the majority to the “administrative expertise” of a “local agency” is graphically illustrated in the case at bench. (See discussion, Burke dissent, ante, p. 46, and Bixby v. Pierno, supra.)
Pierno enunciates an ambiguous definition of fundamental rights* 2 which concedes such rights must be determined on an ad hoc basis but to illustrate the difference between fundamental and other right, the definition points to the case-hardened distinction that an application for a job is not a fundamental right but a dismissal from a job is. However, in a sepárate concurring opinion, Mosk, J., registers a caveat to the illustration and says in no uncertain terms that, given stated conditions he does not intend to be bound by cases which hold that an application for a job is not a fundamental right.3
*58One wonders what the result at bench would have been if the constitutional language, pursuant to which “local agencies” have acted for so many years, had specifically included language authorizing a “local agency" to make a binding determination of facts in respect of fundamental vested rights. Since what rights are and what rights are not fundamental and vested elude definition, can any amendment be framed which would withstand nullification if it deprives the judiciary of binding fact-finding power in any case. If the exercise by a “local agency” of binding fact-finding power is the exercise of a judicial function in respect of fundamental and vested rights—it is also the exercise of a judicial function in respect of such rights, if any, which may be tolerantly regarded as nonfundamental and not vested.
The current decision demonstrates that amendments to our fundamental law, even though originally ratified and accepted by the courts, may be reconstrued in such a manner as to effectually emasculate them.
The real question is not one of separation of powers but whether the People have, by the Constitution they originally wrote, effectively foreclosed themselves from making any change in their constitutional structure and have abdicated all power to the judiciary.
Respondent’s petition for a rehearing was denied April 24, 1974, and the opinion was modified to read as printed above. Burke, J., and Clark, J., were of the opinion that the petition should be granted.
Assigned by the Chairman of the Judicial Council.
The trial judge in setting aside the agency’s finding in the mandate proceeding need write no opinion. However, a trial judge in the usual case over which he presides may not set aside a judgment in a jury or nonjury case and grant a new trial unless he does with detail and specificity list his reasons for doing so. (Code Civ. Proc., § 657; Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359 [90 Cal.Rptr. 592, 475 P.2d 864].) If a trial judge presiding in a mandate review permits additional evidence, no matter how meager—the findings of the trial judge would be binding upon the appellate courts. It may be that if in the mandate hearing no additional evidence is taken, that an appellate court may also review the record independently and arrive *57at a different conclusion, albeit in a written opinion. In brief, on fundamental vested rights, the “local agency” may reach one conclusion, if the trial court takes evidence on mandate review then under compulsion of settled law, appellate courts must accept the trial court’s findings. However, if no evidence is taken in the trial court, there is no finality in the state courts until the Supreme Court has spoken. Since any adroit lawyer can transmute a fundamental vested right into a constitutional right, a litigant may always hopefully anticipate that a federal district court will “civilly writ” the state court. A fruitful and fertile field for such federal procedure may be found in 28 United States Code section 1343 (jurisdiction of federal courts) and 28 United States Code sections 1443 and 1446 (the removal sections).
The embrace of fundamental vested rights is vague and illusive as set forth in Bixby v. Pierno, 4 Cal.3d 130 [93 Cal.Rptr. 234, 491 P.2d 242], wherein the court says at page 144: “The courts must decide on a case-by-case basis whether an administrative decision or class of decisions substantially affects fundamental vested rights and thus requires independent judgment review. (Merrill v. Department of Motor Vehicles, supra, 71 Cal.2d 907, 915 [80 Cal.Rptr. 89, 458 P.2d 33]; Beverly Hills Fed. S. & L. Assn. v. Superior Court (1968) 259 Cal.App.2d 306, 316 [66 Cal.Rptr. 183].) As we shall explain, the courts in this case-by-case analysis consider the nature of the right of the individual: whether it is a fundamental and basic one, which will suffer substantial interference by the action of the administrative agency, and, if it is such a fundamental right, whether it is possessed by, and vested in, the individual or merely sought by him. In the latter case, since the administrative agency must engage in the delicate task of determining whether the individual qualifies for the sought right, the courts have deferred to the administrative expertise of the agency. If, however, the right has been acquired by the individual, and if the right is fundamental, the courts have held the loss of it is sufficiently vital to the individual to compel a full and independent review. The abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.” (Italics added.)
Mosk, J., in a concurring opinion states: (p. 161) “There is only one qualification attached to my approval. I would find it difficult, in an appropriate factual context, *58to recognize vested or fundamental rights—as those terms are used in the majority opinion—in one who is licensed as a member of a profession or state-regulated vocation but not in another who seeks a license to practice his calling, particularly if the latter is equally well qualified by virtue of his investment of time and treasure. . . .” (Italics added.)