State ex rel. Bierring v. Swearingen
| Decision Date | 07 May 1946 |
| Docket Number | 46835. |
| Parties | STATE ex rel. BIERRING, Commissioner of Public Health, v. SWEARINGEN. |
| Court | Iowa Supreme Court |
John M. Rankin, Atty. Gen., Robert L. Larson, Asst. Atty. Gen and F. E. Van Alstine, Co. Atty., of Pocahontas, for appellant.
Omer B. Fuller, of Rolfe, and Shaw & Shaw, of Pocahontas, for appellee and cross-petitioner.
Plaintiff, in his petition, alleges that Clyde S. Swearingen had been and was, at the time of filing the petition, engaged in the practice of barbering in this state without a license; that he had failed to apply for a renewal of his license prior to June 1, 1943; that he had failed to apply for and receive a reinstatement of his license as by law provided; that his license was not renewed on June 30, 1943, and that he has had no license since that time and he is not now properly licensed to practice barbering in this state, but is illegally engaged in the practice of barbering without such license in a shop owned and operated by him at Rolfe Iowa.
In answer to plaintiff's petition defendant admits that he was practicing without a license, but states that he has had no hearing or notice of hearing to revoke, in validate, or refuse the issuance or renewal of his license which is a property right. He further alleges that he applied for a renewal of his license about ten days late, but had been unjustly refused the renewal; that he had tendered all fees and done all things required of him preliminary to the issuance or renewal of such license; that pursuant to section 2526 of the Code of Iowa the Department of Health adopted a circular of information in connection with the practicing of barbering, which indicated that the renewal fee might be paid at any time prior to July 1, and that the common custom of the department was to accept these fees at any time before July 1; that the failure to renew the license is not the fault of the defendant but is an unwarranted and arbitrary refusal of the department, and by way of cross petition defendant asks for affirmative relief and that a writ of mandamus be granted requiring the plaintiff to issue a renewal to his license to practice the trade of barbering in the state of Iowa and for general equitable relief.
At the conclusion of the hearing the district court dismissed plaintiff's petition and denied the injunction, and ordered the division of barbering, State Department of Health, to issue and deliver to the defendant a renewal of his license upon payment of the required fee of $9.
On trial the testimony was mostly uncontradicted. Defendant had been a practicing barber at the time the license law was passed, and afterwards operated as a barber and was issued a certificate number 5982 without examination.
Defendant was committed for the third time to the State Hospital at Cherokee, Iowa, as an inebriate, and was an inmate thereof in May and June, 1943. Five days after such admission he was employed at barbering in the hospital, mostly shaving, and continued at such work nearly every day during his stay.
At the time of filing defendant's brief in this appeal he was still on parole from the hospital; that on or about the 10th day of June, 1943, he applied through the superintendant of such hospital to the Department of Health for a renewal of his certificate; that such renewal was refused and the fee sent with it returned; that other like applications made by the defendant were refused by the department; that no application was ever filed by the defendant with the Board of Examiners for reinstatement of his license. Defendant alleges, and there is evidence, that the defendant never received a notice of the expiration of his license, under section 2447, Code of Iowa 1939.
Upon being granted a parole from the Cherokee hospital defendant re-opened his shop at Rolfe and engaged in barbering there ever since without a renewal or reinstated license, and now refuses to apply for a reinstatement of his license. No action has been commenced to revoke his license and no notice of hearing was given the defendant by the department when refusing to renew his license on June 10 1943. Notwithstanding the statement of defendant, that he had not received his notice of expiration, the department alleges that such notice was mailed as by law provided.
Plaintiff, in its appeal, urges that the district court, in its opinion filed with the decree, erred by failing to consider one of the conditions necessary to obtain the right to a renewal of the license; namely, the condition of a timely application; that even though the application was not timely the court held that the licensee was entitled to a notice of hearing before a renewal could be denied by the Department of Health.
The main point of controversy in this proceeding centers around the question of the right of the department of health to deny the renewal because it was filed on or about June 10th instead of prior to June 1st and it was so denied without a hearing on notice.
Under the provisions of Code, § 2439, a license is necessary before engaging in the practice of barbering, and in the following section 2440 the qualifications for obtaining such license are given. Sections 2450, 2451, and 2452 provide for an examining board.
An annual renewal, with a charge therefor of $3, is provided in section 2447, Code 1939, as follows:
In event of licensee permitting his license to lapse, Code, § 2448, determines the method of reinstatement, as follows: 'Any licensee who allows his license to lapse by failing to renew the same, as provided in section 2447, may be reinstated without examination upon recommendation of the examining board for his profession and upon payment of the renewal fees then due.'
The Code, by section 2492, provides that a license to practice a profession shall be revoked or suspended whenever the licensee is guilty of the various acts or offenses as listed in such section.
An action for revocation is begun by the attorney general filing a petition for the revocation or suspension of a license in the office of the clerk of the district court having jurisdiction. This petition is filed by direction of the Department of Health, either on its own motion or upon sworn information of some person who resides in the county wherein the licensee practices. Code,§ 2497. The rules for such filing are given in sections 2498 and 2499.
Section 2500 provides for the time and place of trial, and section 2501 provides that: 'Notice of the filing of such petition and of the time and place of hearing shall be served upon the licensee at least ten days before said hearing in the manner required for the service of notice of the commencement of an ordinary action.'
The cause is tried as an equity action (section 2502), and section 2503 provides as follows:
From this action, as provided in the following sections, an appeal may be taken to this court. Thus it will be seen that in the event it is deemed advisable that the right or license of any licensee engaged in the practice of barbering may be revoked when there are apparently grounds therefor. The complete method therefor is provided by the Code provisions just quoted or referred to. There is given to the licensee, before being deprived of all the rights under his license, an opportunity for a full and complete hearing on due notice.
It is provided by section 2519 that a person engaged in any business or in the practice of any profession for which a license is required by this title, without such license, may be restrained by permanent injunction.
In this case the application for a permanent injunction was denied by the district court, the court holding that a permanent injunction was not justified either under the law or facts. He stated that there were lacking: (1) Failure on the part of the plaintiff to give notice to the defendant and an opportunity to him for a hearing; (2) failure of the plaintiff to show that the defendant is 'without [a] license' as the term is used and intended in section 2519 of the Code; and (3) the plaintiff failed to prove sufficient facts to justify an injunction. The court, in its opinion, held that when the term 'without a license' was used, the reference was to the original license, basing his opinion largely on the holding of this court in the case of Gilchrist v. Bierring, 234 Iowa 899, 14 N.W.2d 724, and State v. Otterholt, 234 Iowa 1286, 15 N.W.2d 529.
I. We do not think it necessary to determine the correctness of the court's opinion in regard to the second ground thereof so far as the issues here are concerned. The case can be decided without determining whether or not the statute refers to the original license or the renewal, but as to the district court's ground 1, we agre...
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