McDermott v. State, 27113.

Decision Date25 November 1938
Docket Number27113.
Citation84 P.2d 372,197 Wash. 79
PartiesMcDERMOTT v. STATE et al.
CourtWashington Supreme Court

Department 1.

Proceeding under the Declaratory Judgment Act by Joseph P. McDermott against the State of Washington and others, to obtain a declaration of rights under the statutes relating to the licensing of barbers. From an order dismissing the action the plaintiff appeals.

Affirmed.

Appeal from Superior Court, Thurston County; D. F. Wright, judge.

Joseph P. McDermott, in pro. per.

G. W Hamilton, Atty. Gen., and W. A. Toner, Asst. Atty. Gen., for respondents.

HOLCOMB Justice.

This is a proceeding initiated by appellant under the declaratory judgment act, Rem.Rev.Stat (Supp.) §§ 784-1 to 784-17 chapter 113, Laws of 1935, p. 305, as amended by chapter 14, Laws of 1937, p. 39, to obtain a declaration of rights under Rem.Rev.Stat. § 8277-1 to § 8277-19, inclusive, as amended by chapter 199, Laws of 1937, p. 976, which relates to the licensing of barbers.

Respondents demurred to appellant's amended complaint on the ground that it failed to state a cause of action. The demurrer was sustained. Appellant elected to stand upon his complaint and refused to plead further. The trial court entered an order dismissing the action, from which order this appeal is taken.

The germane recitals of the amended complaint are: That appellant operates a certain barber shop in King county known as 'McDermott's Barber Shop'; that the state director of licenses is empowered and obligated to prescribe forms and rules to enforce the laws of the state of Washington relating to licenses; that Rem.Rev.Stat. § 8277-13, as amended by chapter 199, p. 978, § 4, Laws of 1937, providing that two photographs shall accompany all applications for renewal of barber licenses and that the licensee's photograph shall be placed in a conspicuous place in front of his working chair in his place of business, prescribes a display of photographs in the nature of the long established 'Rogues' Gallery System of Criminal Identification,' and therefore constitutes a pernicious abrogation of indefeasible rights, privileges, and immunities of appellant, his lessee barbers, and all other barbers similarly situated; that by reason of appellant's failure to comply with the statute relating to photographs and the director's regulations with reference thereto, appellant and his associates were threatened with the imposition of the penalties set forth in Rem.Rev.Stat. § 8277-17; and that appellant has been granted a license to practice barbering in this state and is presently engaged in practicing that occupation.

It is further alleged that Rem.Rev.Stat. § 8277-3, as amended by chapter 199, Laws of 1937, p. 977, § 2, providing that every applicant for a license to follow the occupation of barber shall have a diploma showing graduation from an eighth grade grammar school, or present satisfactory proof of an equivalent education is unconstitutional because it constitutes a denial of equal protection of the laws; that Rem.Rev.Stat. § 8277-5, as amended by chapter 199, Laws of 1937, p. 977, § 3, relating to the nature, scope, and content of the examinations given to applicants for a license, is unconstitutional.

It is also alleged that the effect of the repeal of Rem.Rev.Stat. §§ 8277-4 and 8277-10 by chapter 199, p. 979, § 6, Laws of 1937, is to deprive a duly licensed barber, licensed by one of the several states of the United States, other than the State of Washington, of his freedom of action as contemplated by the constitution in lawfully moving from one state to another in the United States for the purpose of practicing his occupation of barbering, and is therefore, in respect to appellant, his lessee barbers, and all barbers similarly situated, in contravention of the Fourteenth Amendment of the federal constitution, U.S.C.A.Const. Amend. 14, and § 3 relating to due process, § 12 pertaining to the granting of special privileges and immunities, and§ 23 relating to laws impairing the obligation of contracts, of Article 1 of the constitution of this state.

Finally, it is averred that Rem.Rev.Stat. §§ 8277-1 to 8277-19, as amended by chapter 199, Laws of 1937, p. 976, have been enacted under the mere pretense of further protecting the public health, safety, and morals with reference to the practice of the occupation of barber and of the operation of barber shops, and hence is violative of the Fourteenth Amendment of the constitution of the United States and the above-mentioned sections of Article 1 of the constitution of this state in respect to appellant, his lessee barbers, and all barbers similarly situated.

Accordingly appellant prayed for a declaration of his legal rights.

This appeal presents for decision the question as to whether or not the trial court erred in sustaining the demurrer and dismissing the action.

It should be observed that the director of licenses instructed all barbers, licensed under the laws of this state, to mail to the department of licenses, with their annual renewal fees, two 2 1/2"' square photographs of themselves, bearing the licensee's signature. This course of action is prescribed by chapter 199, p. 978, § 4, Laws of 1937, Rem.Rev.Stat. (Supp.) § 8277-13, which reads:

'It shall be the duty of any holder of any license, or student certificate issued under this act to post the same in a conspicuous place in front of his working chair, where it may be readily seen by all persons whom he may serve. A photograph of the applicant shall also be placed with the license where it may readily be seen by all persons whom he may serve. All applicants for renewal of barber licenses due in July, 1937, shall be accompanied by two photographs of the applicant, as prescribed by the director of licenses.'

It is first necessary to determine to what extent, under the pleadings and record, this court may assume jurisdiction under the declaratory judgment act.

No showing has been made that appellant has been refused a license because of any educational deficiency by reason of the educational requirements prescribed by chapter 199, p. 976, Laws of 1937, nor are any barbers from outside the state parties to his proceeding. Thus the only question, in which appellant has any direct and substantial interest so as to meet the requirements of justiciability under the declaratory judgment act, is whether he, as a licensee barber, is required to comply with Rem.Rev.Stat. (Supp.) § 8277-13, and the regulations of the director relating thereto. Washington Beauty College, Inc. v. Huse, Wash., 80 P.2d 403; State, by and through Fink, v. Fruitland Irrigation District, Wash., 81 P.2d 844; Adams v. City of Walla Walla, Wash., 82 P.2d 584.

Every reasonable presumption must be indulged in favor of the constitutionality of this statute, and the burden rests upon appellant to establish clearly its invalidity. State v. Hanlen, 193 Wash. 494, 76 P.2d 316, and cases cited.

In the exercise of police power the legislature is vested with a wide discretion not only to determine what the public interest requires, but also to adopt measures necessary for such protection. The wisdom, necessity, and expediency of a statute are questions within the province of the legislature alone and if the legislature proceeds regularly and violates no...

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11 cases
  • State v. Sears
    • United States
    • Washington Supreme Court
    • June 5, 1940
    ... ... necessary to protect those interests. State v ... Somerville, 67 Wash. 638, 122 P. 324; Shea v. Olson, ... supra; McDermott v. State, 197 Wash. 79, 84 P.2d ... 372 ... Appellant ... contends that, instead of safeguarding the public against ... ...
  • Sofie v. Fibreboard Corp.
    • United States
    • Washington Supreme Court
    • April 27, 1989
    ...("an act of the legislature will be presumed to be valid unless there is no reasonable doubt as to its validity"); McDermott v. State, 197 Wash. 79, 83, 84 P.2d 372 (1938) ("Every reasonable presumption must be indulged in favor of the constitutionality of this statute, and the burden rests......
  • State ex rel. Dept. of Finance, Budget and Business v. Thurston County
    • United States
    • Washington Supreme Court
    • June 29, 1939
    ...95 Wash. 531, 164 P. 239; State v. Nelson, 146 Wash. 17, 261 P. 796; In re Peterson's Estate, 182 Wash. 29, 45 P.2d 45; McDermott v. State, Wash., 84 P.2d 372. Notwithstanding the foregoing well principles, the legislature may not invade the province of the judiciary and set at naught a jud......
  • Kaul v. City of Chehalis, 32370
    • United States
    • Washington Supreme Court
    • December 2, 1954
    ...to the object sought to be attained. State ex rel. McBride v. Superior Court, 1918, 103 Wash. 409, 174 P. 973; McDermott v. State, 1938, 197 Wash. 79, 84 P.2d 372; State v. Sears, 1940, 4 Wash.2d 200, 103 P.2d 337; State v. Boren, 1950, 36 Wash.2d 522, 219 P.2d 566, 20 A.L.R.2d It is urged ......
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