Nissen v. Miller

• Decision Date: 17 August 1940
• Docket Number: No. 4535.,4535.
• Citation: 44 N.M. 487,105 P.2d 324
• Parties: NISSEN et al.v.MILLER et al.
• Court: New Mexico Supreme Court

44 N.M. 487

105 P.2d 324

NISSEN et al.

v.MILLER et al.

No. 4535.

Supreme Court of New Mexico.

Aug. 17, 1940.

Appeal from District Court, Bernalillo County; Irwin S. Moise, Judge.

Mandamus proceeding by Paul J. Nissen and others against Dorothy Miller and others, as members and officers of the State Board Of Cosmetologists of New Mexico, to compel the respondents to reinstate a certain order approving a schedule of minimum prices. From an adverse judgment, the applicants appeal.

Judgment affirmed.

The word “insufficient” as used in statute giving State Board of Cosmetologists, on determining that minimum prices are “insufficient” to provide properly healthful services to the public and to keep shops sanitary, the power to vacate any order theretofore entered approving an agreement establishing minimum prices, as related to prices, means “too high” as well as “too low?7D, and hence board could reduce minimum prices on ground that it would increase the gross income of beauty shops. Laws 1937, c. 221; c. 229, § 12.

Dailey & Rogers, of Albuquerque, for appellants.

R. F. Deacon Arledge and Melvin D. Rueckhaus, both of Albuquerque, for appellees.

BICKLEY, Chief Justice.

Appellants, owners and operators of beauty shops, filed an application for a writ of mandamus against the appellees, as members and officers of the State Board of Cosmetologists of New Mexico, commanding said Board to reinstate a certain order of August 27, 1937, which said latter order approved a schedule of minimum prices in said district. An alternative writ was issued, the allegations of which were traversed by appellees. Upon a stipulation of facts reflected in the judgment, a hearing was had at which time the alternative writ was dissolved and it was adjudged that a permanent writ should not issue. It is from this judgment that this appeal is prosecuted.

In the Board's order in question, it was recited that after extensive investigation, it found that numerous beauty shops were being hurt by the price structure then in effect; that the fixed prices then in effect were not providing sufficient income to keep the shops sanitary and to protect the public health; that the price code was being violated by subterfuge on every hand; that its enforcement had become difficult and impossible; that a lower price scale would increase the gross income of the shops and operators, and would provide more healthful and more sanitary services to the public. The pertinent statutes are Chap. 221, Laws of 1937, and Chapter 229, Laws of 1937. Section 15, Chapter 221, creates the State Board of Cosmetologists. Subsequent sections of said chapter describe the powers of the Board of Cosmetology pertaining to examination, licensing, and regulation of beauty shops in the State of New Mexico. The pertinent portions of Chapter 229 are thus summarized in the brief of counsel for appellant:

“1. That the Act is an exercise of the police power of the State and its purposes generally are to protect the public welfare, public health and public safety;

“2. That unfair, destructive and uneconomic trade practices carried on by the beauty industry have resulted in prices so reduced by unfair competition to a point where it is impossible for the average beauty culturists to support and maintain reasonably safe and healthful service to the public;

“3. That said conditions are a menace to the health, welfare and reasonable comfort of the citizens of the State and tend to the transmission of disease;

“4. That by reason thereof it is necessary that physically clean and healthy operators be employed in the industry;

“5. That the disparity between the price of beauty culture work and other commodities has destroyed the purchasing power of beauty culturists for industrial and sanitary products and has seriously impaired and injured the public health and safety.

“Section 12, Chapter 229, supra, provides as follows:

“‘(a) The board shall have the power to approve price agreements establishing minimum prices for cosmetology and beauty culture work, signed and submitted by any organized groups of at least 75 per cent of the cosmetologists and beauty culturists of each judicial district, after ascertaining by such investigations and proofs as the conditions permit and require that such price agreement is just and, under varying conditions, will best protect the public health and, safety by affording a sufficient minimum price for cosmetology work to enable the cosmetologists and beauty culturists to furnish modern and healthful services and appliances, so as to minimize the danger to the public health incident to such work.

“‘The Board shall take into consideration all conditions affecting the cosmetology and beauty culture profession in its relation to the public health and safety.

“‘In determining reasonable minimum prices, the Board shall take into consideration the necessary costs incurred in the particular judicial district in maintaining a beauty shop in a clean, healthful and sanitary condition.

“‘(b) The board, after making such investigation, shall either approve or disapprove such agreement, and if same is approved, shall by official order fix the minimum prices set forth in such agreement as the minimum price for all work in such beauty shops.

“‘(c) That if the Board after investigation, made either upon its own initiative or upon the complaint of a representative group of cosmetologists and beauty culturists, determine that the minimum prices so fixed are insufficient to properly provide healthful services to the public and keep the shops sanitary, then the Board shall have power to vacate any order theretofore entered approving any such agreement and require the submission of new agreements for its approval.”’

The question is, did the Board exceed its authority when it vacated the order of August 27, 1937, which established minimum prices for cosmetology and beauty culture work? We agree with appellants' statement in their brief: “Our issues here...