Dennis v. State Bd. of Barber Examiners

• Decision Date: 06 June 1953
• Docket Number: No. 38794,38794
• Citation: 257 P.2d 940,174 Kan. 561
• Parties: DENNIS et al. v. STATE BOARD OF BARBER EXAMINERS et al.
• Court: Kansas Supreme Court

Page 940

257 P.2d 940

174 Kan. 561

DENNIS et al. v. STATE BOARD OF BARBER EXAMINERS et al.

No. 38794.

Supreme Court of Kansas.

June 6, 1953.

Syllabus by the Court.

1. Ordinarily a mandamus action to compel public officials to perform alleged duties should be brought on the relation of the attorney general or the county attorney.

2. Private citizens, without interests or rights distinct from those of other citizens, cannot maintain an action in mandamus to compel public officials to perform their duties.

3. The record in an original mandamus action by private citizens to compel the State Board of Barber Examiners to perform certain alleged duties under and by virtue of the provisions of G.S.1949, 65-1830, examined, and held, the defendants' motion to quash the alternative writ, based on the ground plaintiffs had no legal capacity to maintain the action, is to be regarded as tantamount to a demurrer and when so considered should be sustained because it appears from the face of the petition and the alternative writ that plaintiffs have no interest in the subject matter in litigation different from that of the general public.

Frederick Hall and Donald C. Smith, Dodge City, were on the briefs for plaintiffs.

Harold R. Fatzer, Atty. Gen., and Paul E. Wilson, Asst. Atty. Gen., and Kirke W. Dale and Donald Hickman, Arkansas City, were on the briefs for defendants.

PARKER, Justice.

This is an original proceeding in mandamus brought by private individuals to compel the duly appointed members of the State Board of Barber Examiners to take official action. Upon application an alternative writ issued to the defendants who, in due time, filed a motion to quash such writ. The case was presented to this court on issues thus joined.

The theory on which plaintiffs claim the right to maintain the action is set forth in the opening paragraph of their brief which reads:

'This is an action in manadamus brought by seventy-five per cent of the practicing barbers in the 31st Judicial District. In it they ask a writ of mandamus to compel the State Board of Barber Examiners to make personal investigations and to hold public hearings, as provided in G.S.1949, 65-1830, to ascertain what price schedule for barber work is just and under varying conditions will best protect the public health and safety by affording a sufficient minimum price for all barber work, to enable the barbershops in the area to furnish modern and healthful service, using modern appliances and equipment, so as to minimize danger to public health incident to such service.'

G.S.1949, 65-1830, on which the plaintiffs rely for relief, is one of the sections of Chapter 298, Laws of 1941, now G.S.1949, 65-1823 to 65-1834, inc., enacted by the legislature for the purpose of regulating and controlling the barbershop business. For purposes essential to the disposition of the cause it may be said:

That the title of the Act reads:

'AN ACT to regulate and control the barbershop business in the state of Kansas; conferring upon the state board of barber examiners powers, duties, authority and jurisdiction with relation thereto, defining such powers, duties, authority and jurisdiction; authorizing said board to approve price schedules and to make orders fixing minimum prices for barber services, and providing for judicial review of such acts of said board; and providing penalties for violations of this act.'

That section 11 thereof, G.S.1949, 65-1833, states:

'The legislature hereby declares that this act is necessary to protect the public welfare, public health and public safety and that this act is enacted in the exercise of the police power of the state.'

And that the first subsection of section 8 of such Act, G.S.1949, 65-1830, which is followed by other subsections outlining the procedure to be followed by the barber board upon initiation of the action therein mentioned, provides:

'The board shall have the power to approve minimum price schedules of the various items of barber services to be charged in any given judicial district on its own initiative or if a petition signed by at least seventy-five percent of the barbers practicing and operating in such district who hold valid, existing licenses to practice barbering in the state of Kansas shall be presented to the board requesting a minimum price schedule to be approved for any such judicial district. After having ascertained by personal investigation proof as to what price schedule is just, and under varying conditions, will best protect the public health and safety by affording a sufficient minimum price for all barber work, to enable the barbershops in such area to furnish modern and healthful service, using modern appliances and equipment so as to minimize danger to public health and safety incident to such service, the board may approve a price schedule for such area.'

The paramount issue raised by defendants' motion to quash the alternative writ, which we pause to note must be treated as tantamount to a demurrer under our decisions. See Hatcher's Kansas Digest (Rev. Ed.) Mandamus, § 121, West's Kansas Digest, Mandamus, k162, is that the petition shows upon its face that the plaintiffs have no legal capacity to maintain the action. We are convinced it appears from plaintiffs' own theory, as well as from the allegations of their petition, to which we shall presently refer, that this ground of the motion to quash has merit and must be upheld.

The rule that private citizens without interest or rights distinct from those of other citizens cannot maintain an action in mandamus to compel public officials to perform their duty is well-established in this jurisdiction.

Long ago in Bobbett v. State ex rel. Dresher, 10 Kan. 9, we held:

'Mandamus will not lie at the instance of a private citizen to compel the performance of a purely public duty.

'Such a suit must be brought in the name of the state, and the county attorney and the attorney general are the officers authorized to use the name of the state in legal proceedings to enforce the performance of public duties.

'Where a private citizen sues out a mandamus he must show an interest specific and peculiar in himself, and not one that he shares with the community in general.' (Syl. 1, 2 & 3.)

The principles announced in the foregoing decisions, although oftentimes differently stated, have been repeatedly and...