State ex rel. Board of Educ. of Kanawha County v. Dyer

• Decision Date: 09 March 1971
• Docket Number: No. 13040,13040
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. the BOARD OF EDUCATION OF the COUNTY OF KANAWHA, a Corp. v. N. H. DYER, State Director of Health and Chairman of the State Committee of Barbers and Beauticians, et al., etc.

Page 577

179 S.E.2d 577

154 W.Va. 840

STATE ex rel. the BOARD OF EDUCATION OF the COUNTY OF KANAWHA, a Corp. v. N. H. DYER, State Director of Health and Chairman of the State Committee of Barbers and Beauticians, et al., etc.

No. 13040.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1971.

Decided March 9, 1971.

Syllabus by the Court

1. 'Mandamus will not be denied because there is another remedy, unless such other remedy is equally beneficial, convenient and effective.' Syllabus, Point 2, Stowers v. Blackburn, 141 W.Va. 328, (90 S.E.2d 277)

2. Mandamus lies to control the action of an administrative body in the exercise of its duties when such action is arbitrary or capricious.

3. 'Delay alone does not constitute laches; it is delay which places another at a disadvantage.' Syllabus, Point 3, Carter v. Carter, 107 W.Va. 394. (148 S.E. 378)

Campbell, Love, Woodroe & Kizer, John O. Kizer, Charleston, for relator.

Jack L. Miller, Parkersburg, George S. Sharp, Charleston, for respondents.

BROWNING, Judge:

This is an original proceeding in mandamus instituted in the name of the State of West Virginia at the relation of the Board of Education of the County of Kanawha, a corporation, relator herein, against N. H. Dyer, State Director of Health and Chairman of the State Committee of Barbers and Beauticians, Leonard W. Watson, Joy Lynch, Evaun Hardman, and Dennis Howard, members of the State Committee of Barbers and Beauticians, and E. B. Roush, Director of the Division of Barbers and Beauticians.

Sometime prior to November 4, 1969, relator submitted an application to respondents for a license to operate a school of beauty culture in furtherance of its plans to establish such a school at the Carver Career and Technical Center, a vocational school operated by relator. On November 4, 1969, at a meeting of the respondent committee, the following motion was offered, seconded and apparently approved:

That the application for a license to teach beauty culture in the Carver Career and Technical Center * * * be approved and that a license to operate this school be granted when an inspection of said school reveals that the applicant has complied with the law and rules and regulations governing the operation of beauty schools in this state, and in effect, on the date of inspection.

On December 22, 1969, respondent Roush sent a letter to Clarence E. Burdette, Director of Adult Vocational Education for relator, informing him of the action taken. The letter bore a notation that respondent Dyer had 'approved and forwarded' the letter, and it was signed by him as chairman of the Committee.

Relator alleges that in reliance upon this, it 'expended large sums of money furnishing and equipping' the school totalling approximately $33,000.00, entered into one-year contracts with two teachers, and enrolled forty students for the school term commenced in September, 1970. Thereafter, the Committee met on July 21, 1970, and upon hearing representatives of the West Virginia Beauty Schools Association, which represents private beauty schools, and without notice to relator, 'arbitrarily, capriciously and unlawfully rescinded its action of November 4, 1969, and voted to reject the application * * *.' Respondent Roush so informed relator of this by letter dated July 29, 1970. This letter was not approved by respondent Dyer, as relator maintains was required by Code, 16--14--3, as amended.

On September 15, 1970, relator notified respondents that it intended to open the school on September 26th pursuant to the authorization given it in the aforementioned December 22, 1969, letter, and paid the required $25.00 inspection fee. On September 16, 1970, respondent Roush, in a letter 'approved and forwarded' by respondent Dyer, informed relator that he had received the notice, and that:

This information has been handed to our inspector, who will call and inspect your school within a few days. If the school is found to meet the specified requirements, a School Opening Certificate will be issued at the earliest possible date.

(Code, 16--14--12, as amended) provides that the State Committee of Barbers and Beauticians be notified, in writing, at least ten days prior to the proposed opening date.

If an inspector does not call within ten days from the date of your notice, September 16, 1970, you may open your school provisionally, subject to later inspection.

If your school does not meet the requirements at the time of inspection, you will not be permitted to continue to operate until it has been arranged in a manner to comply with the law.

Relator additionally alleges that on November 18, 1970, the Committee met, and the members were advised by respondent Dyer that an inspection of relator's school indicated that there was full compliance with all requirements and that a license should be issued. To this date no such license has been issued.

Respondents herein have filed two separate answers, one purporting to be the answer of All the respondents and the other being the answer only of Dyer, Hardman and Roush. In that separate answer, these three respondents also request that their names be stricken from the first answer and from a demurrer filed purportedly on behalf of all the respondents.

In the first answer, respondents maintain that relator applied for the license on July 8, 1969, but that the application was defective in that it did not contain all necessary information. In particular, it did not contain 'evidence that the Kanawha County Board of Education was professionally competent and financially responsible.' Respondents also allege that the persons designated by relator to be instructors were not properly registered with the Committee, nor were they qualified. In addition, respondents state that on January 27, 1970, respondent Dyer sent relator a letter, the partial text of which is as follows:

The purpose of this letter is to advise you that the (Committee), on December 29, 1969, rescinded its previous motion adopting the new regulations pertaining to the renewal of instructors certificates, July 28, 1969, to become effective September 7, 1969.

As you will observe from the enclosed copy of the regulations, there was no change except the effective date, which was extended from September 7, 1969, to January 1, 1971, in order to give all applicants sufficient time to comply with these regulations.

It is noted that the opening of your school will be during the month of September, 1970. Therefore, with your permission, we are retaining your money order * * * in the amount of $25.00.

Your application is being returned to you in the event you might desire to make any changes, or corrections, particularly with regard to your instructors, in order to bring it up to date.

On July 21, 1970, respondent Dyer informed the Committee at a meeting that he had returned relator's application, and that relator had returned it July 1, 1970, with no changes. Respondents maintain that because of this failure to fully comply, they unanimously rejected the application on August 17, 1970, and filed a written decision on the matter. Respondents further maintain that the aforementioned letter of September 16, 1970, from Roush to relator was not authorized by the Committee and is, consequently, null and void. Furthermore, respondents say that the inspection of the school alluded to by relator with respect to the November 18, 1970, meeting was not made by a Committee member or a qualified inspector appointed pursuant to Code, 16--14--3, as amended.

In the separate answer filed by respondents Dyer, Hardman and Roush it is admitted, as relator alleges, that the Committee, on July 21, 1970, met without notice to relator and unlawfully rescinded the prior conditional approval. This answer alleges that respondents Watson and Lynch, and a former member, John H. Caudill, voted to rescind, that respondent Hardman was not present at that meeting, and that respondent Dyer did not approve the action taken at that meeting as Code, 16--14--3, as amended, commands he must. In addition, these respondents say that respondent Roush and another, Edwin DeBarr, were directed by Dyer to inspect the school and did, indeed, make such an inspection. Furthermore, it is admitted that relator has fully complied with all requirements and that the license should be issued.

In addition to all the aforementioned pleadings and papers, respondents Watson, Lynch and Howard filed a reply to the separate answer of respondents Dyer, Hardman and Roush, in which it is asserted that the latter three respondents 'have no right to admit any allegations insofar as it pertains to the State Committee, since they are a minority * * * and cannot act individually for and on behalf of such Committee.' They also deny once again that the rescission of July 21, 1970, was unlawful, that Dyer did not approve the action, and that such approval by Dyer was even necessary. It is further denied that Roush and DeBarr had the right to inspect the school since they were not official representatives of the Committee.

On December 14, 1970, this Court granted the rule in mandamus returnable on January 13, 1971, and on February 3, 1971, the case was submitted for decision upon all the aforementioned pleadings and exhibits, briefs and oral argument of counsel.

The parties hereinafter will be referred to as the Board and the three members constituting the majority of the Committee of Barbers and Beauticians as the Committee, unless it is necessary to further particularize with regard to one or more of the parties.

The respondents contend that the writ should be refused for the following reasons: (1) the relator has not shown a clear legal right to the relief sought; (2) there is no duty upon the Committee to issue a license to the Board upon the facts of the case; (3) the Board has another adequate remedy at law by virtue of Chapters 29A and 30 of the Code of West Virginia of 1931, as amended; (4)...