¶1I agree with much that is said in the majority opinion. I particularly agree that section 13354 of the Vehicle Code gives to the department the discretionary permissive power to revoke or suspend a driver’s license, in a proper case, after a first conviction of misdemeanor drunk driving, even though the trial court recommends to the contrary. I further agree that such discretionary authority exceeds the power to suspend or revoke conferred upon the courts, and that, in a proper case, the department may reject the recommendation of the trial court. It is also a proper interpretation of section 13953 of the Vehicle Code to hold that the director may exer*288eise his discretionary power to suspend before a hearing is held. Such procedure is undoubtedly lawful (Escobedo v. State of California, 35 Cal.2d 870 [222 P.2d 1].) It also seems correct to hold, as do the majority, that the “double punishment” feature of our law as to drunk drivers is valid.
¶2But I cannot agree that it is a proper exercise of the discretionary power conferred by section 13354 for the director to determine in advance to suspend the license of every driver convicted for the first time of misdemeanor drunk driving, regardless of the circumstances of the particular case, and regardless of the recommendation of the trial court in that particular case. To condone such a procedure is to permit the director, by administrative fiat, to make suspensions under section 13354 mandatory and not discretionary in clear violation of the declared policy of the Legislature to the contrary. By administrative fiat the director has completely nullified the provisions of section 13352, subdivision (a), and other sections of the Vehicle Code. This is not a proper exercise of administrative power.
¶3That the director has determined in advance that he will automatically suspend, at least, the license of every person suffering a first conviction of misdemeanor drunk driving, and that he, in fact, without exception, has adopted and applied this policy, are admitted facts. This is not only correctly stated in the majority opinion, but has been frequently announced by the director in the public press, and a statement to that general effect is printed on the back of every order of suspension sent to each driver whose license is suspended. It is also admitted in the briefs filed in these cases. Moreover, at oral argument, counsel for the department fairly conceded that such a policy had not only been announced, but was being applied in every ease, including the cases now before the court.
¶4The department argues, and the majority approve the argument, that this automatic policy of suspension is a reasonable exercise of “discretion,” and is justified because of the admitted dangers created on our highways by those driving under the influence of liquor. Statistics are quoted demonstrating to a certainty that, in the public interest, such activity should, if possible, be restrained. Unquestionably, those statistics are appalling. They demonstrate that the incidence of drunk driving citations is increasing. Those statistics also demonstrate that a high percentage of accidents are caused by persons driving while under the influence of liquor. It is obvious that the efforts of the department and of its director *289to stop the resulting carnage on our highways should receive our highest commendation. Certainly, the department should not be hampered when it seeks to accomplish this end through the exercise of any lawful powers conferred upon it by the Legislature. This court should attempt to interpret the applicable statutes, if possible, so as not to hamper or impede the department or its director in attempting to accomplish such a worth-while end. But no matter how praiseworthy the purpose and object of the department and its director may be, no matter how grim the statistics are, the department and its director are governed by the law. They possess only those powers conferred upon them by the Legislature. No matter how praiseworthy their purposes, their actions cannot be approved when the department or director act contrary to law or beyond their legal powers. The argument of respondent, approved by the majority, amounts to nothing more than the concession that the end justifies the means. That doctrine, legally, cannot be used to confer upon an administrative board or officer powers not conferred, expressly or impliedly, by the Legislature, nor can it be used to approve the actions of such board or officer in direct violation of an announced legislative policy. Yet this is precisely what the majority opinion approves.
¶5That this is so is disclosed by an examination of the pertinent code sections. As the majority correctly point out, section 13352 provides for mandatory suspension for a period of 90 days upon a first conviction of misdemeanor drunk driving unless the court recommends, as it did in this case, that the license not be suspended. Section 13354, as already pointed out, confers the discretionary right upon the department to suspend upon a first conviction. No standards at all are provided in this section regulating the exercise of the discretion conferred.
¶6It is quite obvious that the “discretion” to be exercised by the department under section 13354 is not, as the department contends and the majority hold, the authority to determine that general conditions require a general policy applicable to all cases. The “discretion” conferred is quite clearly the authority to determine, in each individual case, and under the facts peculiar to that case, whether action beyond that taken by the court is necessary to protect the public.
¶7Qitite obviously, the Legislature did not provide or intend that there should be an automatic mandatory suspension in *290every case. Section 13352 specifically provides that there shall be a mandatory suspension only under certain circumstances, that is, when the court fails to take any action, affirmative or negative, concerning suspension. Had the Legislature intended that every licensee should be suspended upon a first conviction it would not have provided for exceptions in section 13352. Since it did provide for exceptions, it must have intended that cases falling within these exceptions should be treated differently from those which are covered by the mandatory suspension rule. If these licenses are not to be suspended automatically, then it must be necessary for the department to give some individual consideration to each ease before it can suspend for any period of time. Either the suspension is to be automatic or it is to be decided on the merits of each case. There is no other real alternative. The departmental policy under attack, in legal effect, amends the discretionary provisions of section 13354, by approving a policy that allows the department to make all suspensions mandatory. Such an interpretation of the code sections completely ignores the fact that the Legislature has created two classes of first offenders, and that the department has lumped all first offenders into one class. Undoubtedly under section 13354, if the court recommends against suspension, the department may, nevertheless, in the exercise of its discretion, revoke or suspend in that particular ease in spite of the recommendation of the court to the contrary. But that is the extent of the power to act. What the majority fail to recognize is that if a driver is subjected to automatic suspension, under the department’s admitted policy, by departmental fiat the exceptions to mandatory suspension set forth in section 13352 have been completely written out of the code. The majority also fail to recognize that the admitted policy of the department makes meaningless the recommendation of the court made under the authority expressly conferred by section 13352. Certainly, it cannot be reasonably assumed that the Legislature expressly authorized the court to perform a useless act.
¶8The only possible and reasonable interpretation of this section is that the Legislature had some purpose in mind when it provided that the court might make a recommendation against suspension, and that, if such a recommendation was made, the mandatory suspension provisions should not apply. Obviously, the Legislature must have intended that the recommendation of the trial judge, and the reasons underlying it, would be considered and weighed by the department before it *291determined whether suspension or revocation was required. Bach case differs. If the department determines, after considering the recommendation of the trial court and the facts of each case, that in that case a suspension is justified, it unquestionably has the power to order such suspension. But the legislative authority- granting the court the power to make recommendations can be purposeful only if the department is required to consider that recommendation and the facts, before reaching a determination in the case. To hold, as does the majority, that the department may impose an automatic mandatory suspension is to permit an administrative agency by simple administrative fiat to abrogate completely the authority granted by the Legislature to the judiciary. This is not sound law.
¶9The power granted to the court to recommend that the department not suspend a particular license necessarily indicates that the Legislature must have intended suspension or revocation to be determined on an individual basis. The court has tried the individual defendant. Its recommendation is made on the basis of the particular facts and record before it. If the Legislature had intended that the department could assess predetermined automatic penalties rather than deciding that suspension, or the lack thereof, was proper in a given case, it would not have provided that the court could recommend against suspension if a particular case warranted such consideration. The very fact that there is provision for recommendation in individual cases by the courts, indicates that the Legislature intended that individual consideration should be given to each case before departmental action of any kind is to be taken.
¶10It can be assumed that the Legislature was fully aware of the seriousness of the problem of intoxicated drivers. With this in mind, it nevertheless provided for consideration of each case on its merits. The department should not be permitted to overrule this legislative policy by determining that no individual consideration shall be given other than to determine the extent of the penalty to be assessed. It is for the Legislature to determine the nature of the discretion to be exercised by an agency, and the agency must act reasonably within the limits imposed. It is, of course, the law that an administrative agency cannot alter or amend the scope of a statute by administrative rule. (Whitcomb Hotel, Inc. v. California Emp. Com., 24 Cal.2d 753 [151 P.2d 233,155 A.L.R. 405].)
¶11*292The importance of requiring the department to weigh the court’s recommendation and the facts of each ease before it suspends a license, is emphasized by the fact that the law permits the department to suspend or revoke a license before a hearing is had. At that time, before the hearing, the court’s recommendation is the only affirmative evidence on behalf of the defendant that is before the department. It is certainly reasonable to assume that, when, by the provisions of section 13953, the Legislature empowered the department to suspend licenses prior to a hearing, and, at the same time, empowered the court to make recommendations, the Legislature intended that such recommendation should be considered by the department.
¶12It must also be remembered that, while suspension is permissible prior to a hearing, the statute confers on the driver the right toa hearing, if he so desires ( § 14100). A “ hearing, ’ ’ at least in the absence of statutory limitation, constitutionally means a real and full hearing. That means, as a minimum, a hearing at which the accused has the opportunity to show that the penalty should not be imposed. There is nothing in our law to authorize a star chamber proceeding in which the accused is prejudged. Certainly, there is nothing in any section of the Vehicle Code to indicate that the hearing is to be a limited hearing (even if the Legislature could so provide) in which the department is to do no more than determine whether there was a conviction, and, if so, decide the extent of the penalty to be imposed. In the absence of such specific limitations, the department must grant defendant a full hearing in which he can show not only that a lesser penalty should be imposed but also that there should be no penalty at all. Under the present departmental policy the defendant cannot make this showing. The department has predetermined that the license will be suspended for some period of time, and there is no way in which the defendant can offer evidence to mitigate the imposition of this basic penalty.
¶13This type of hearing is neither fair nor constitutional. In Moore v. State Board of Equalization, 76 Cal.App.2d 758 [174 P.2d 323], an attack was made upon the type of hearing there afforded the petitioner. In holding that the type of hearing involved was lawful the court stated (p. 764) : “. . . it is clear that at a board hearing a licensee would have every opportunity, as this appellant had, to make a full showing ly way of mitigation, excuse or avoidance, which showing of course would be addressed to the board’s discretion in the *293particular case.” (Emphasis added.) A defendant who appears before the motor vehicle department, however, is not permitted to make a “full showing by way of mitigation, [or] excuse ...” He can make no showing, at all, as to avoidance. The defendant cannot obtain a complete hearing at any stage in the proceedings against him in the department. This court should not assume that the Legislature intended to so abridge the legal rights of the licensee, at least in the absence of a clear mandate to this effect.
¶14No case has been cited that permits an administrative board to exercise its statutory “discretion” in advance as the department in these cases has done. The only authorities that have considered the problem have held to the contrary. Thus in Bank of Italy v. Johnson, 200 Cal. 1 [251 P. 784], the court clearly held that an administrative agency cannot, by its own rules, circumscribe the exercise of its statutory discretion. In that case, the Bank Act provided that no branch bank could be opened without the approval of the bank superintendent, and it was further provided that such approval should be granted only when “public convenience and advantage” would be served thereby. The superintendent of banks announced that he would not grant a permit for a branch bank where the principal office of the bank was not also located in the same city, unless the applicant showed that public convenience and necessity required it. The court upheld this policy because the rule merely forewarned applicants that, in certain circumstances, they would have the burden of proof. But the court was careful to point out that the rule itself did not tie the hands of the superintendent in advance, as does the rule here involved. In the Bank of Italy case the rule, by express terms, permitted the superintendent to give his approval if the applicant sustained its burden. The court stated (200 Cal. at p. 15): “, . . [T]he superintendent . . . may not by the adoption of any rule of policy or procedure so circumscribe or curtail the exercise of his discretion under the statute as to prevent the free and untrammeled exercise thereof in every case, ...” (Emphasis added.)
¶15In the instant case, the department, by its own admission, has formulated a policy which prevents the “free and untrammeled exercise” of its discretion “in every case.” It has predetermined that certain minimum action will be taken regardless of the existence or nature of the extenuating circumstances which may exist in that case. It has attempted to alter the *294discretion conferred upon it by the Legislature. If the task of judging each case on its merits has become or is too burdensome then it is for the Legislature, not the department, to establish a more workable procedure. Under the law as it exists today the department is required to consider each such case to determine whether departmental action is advisable. The department cannot, on its own initiative, declare that its policy will be otherwise.
¶16For these many reasons, it is obvious that petitioner’s legal rights have been materially and illegally impaired. In my opinion, the writ of mandate should issue ordering the director to set aside petitioner’s order of suspension, and to grant to him the hearing provided by law.
¶17I am impelled to agree with the dissenting conclusion announced by Mr. Justice Peters but in reaching such view I find it unnecessary to consider, and my concurrence does not extend to, the areas wherein his dissenting opinion expresses accord with the views of the majority.
¶18In resolving the issues here presented I deem it imperative not to lose sight of or transgress the established principles that “ ‘The use of highways for purposes of travel and transportation is not a mere privilege, but a common and fundamental right, of which the public and individuals cannot rightfully be deprived . . .’ [but that] ‘The use of the public highways by motor vehicles, with its constant dangers, renders the reasonableness and necessity of regulation apparent.’ ” (Escobedo v. State of California (1950), 35 Cal.2d 870, 875-876 [1] [222 P.2d 1] ; italics added.)
¶19With fidelity to the above quoted principles I can and do concur in the conclusion of Justice Peters, and in the reasoning supporting this conclusion, that in the circumstances of this case “petitioner’s legal rights have been materially and illegally impaired” and that “mandate should issue ordering the director to set aside petitioner’s order of suspension.”
¶20McComb, J., concurred.
¶21Petitioner’s application for a rehearing was denied June 29, 1960. Schauer, J., McComb, J., and Peters, J., were of the opinion that the application should be granted.