Toebe Acad. of Beauty Culture, Inc. v. Kelly

• Decision Date: 04 November 1941
• Parties: TOEBE ACADEMY OF BEAUTY CULTURE, Inc., v. KELLY et al., State Board of Health.
• Court: Wisconsin Supreme Court

239 Wis. 103

300 N.W. 476

TOEBE ACADEMY OF BEAUTY CULTURE, Inc.,

v.KELLY et al., State Board of Health.

Supreme Court of Wisconsin.

Nov. 4, 1941.

Appeal from a judgment of the Circuit for Dane County; Alvin C. Reis, Circuit Judge.

Affirmed.

This action was begun on July 3, 1940, by Toebe Academy of Beauty Culture, Inc., a Wisconsin corporation, plaintiff, against W. W. Kelly, M. D., Stephen Cahana, M. D., C. A. Harper, M. D., Joseph Dean, M. D., N. L. MacCornack, M. D., Carl W. Eberback, M. D., and Amalia C. Baird, R. N., as members of the State Board of Health, defendants, to restrain the defendants from enforcing certain provisions of chapter 159 entitled “Beauty Parlors” and from enforcing certain orders made by the State Board of Health acting pursuant to said provisions. There was a trial. The court found in favor of the defendant, held that ch. 159, Wisconsin Stats.1939, was valid and that the question of whether the rules for the government of schools of cosmetology are within the scope of the rule-making power delegated to the State Board of Health by ch. 159, was not before the court in this action and that question can only be raised by an action to review the rules; that under Rule 6 adopted by the Board of Health the plaintiff might apply to the board of health for an order modifying the order complained of which affords the plaintiff an administrative remedy to correct any errors in said Rule 6 and directed judgment in favor of defendants, denying the application for an injunction and dismissing the plaintiff's complaint upon the merits. From the judgment entered on January 20, 1941, the plaintiff appeals.

M. M. Morrissey, of Madison (L. A. Squire, of Madison, of counsel), for appellant.

John E. Martin, Atty. Gen., and William A. Platz, Asst. Atty. Gen., for respondents.

ROSENBERRY, Chief Justice.

The first question for determination is, what was before the trial court under the pleadings in this case? In its brief in this Court the plaintiff alleges that because no general appeal provision is contained in ch. 159, entitled “Beauty Parlors” nor any specific method of review provided by said chapter, that none exists. The trial court was of the view that the provision contained in sec. 160.22 applies to all proceedings before the State Board of Health.

[1] The contention of counsel is that sec. 160.22 applies only to orders made pursuant to secs. 160.15 to 160.23. That contention must be sustained. At most it could apply to anything contained in ch. 160. In State ex rel. Oaks v. Brown, 1933, 211 Wis. 571, 249 N.W. 50, a provision contained in one chapter was applied to all the chapters in that “Title”, but in that case the statute expressly so provided.

Title XV of the statutes bears the heading “Public Health”. Chapter 159 is a part of Title 15. The State Board of Health is created by ch. 140, also a part of Title 15. Section 140.05 prescribes the powers and duties of the State Board of Health. Section 140.05(3) provides:

“The board shall have power to make and enforce such rules, regulations and orders governing the duties of all health officers and health boards, and as to any subject matter under its supervision, as shall be necessary to efficient administration and to protect health, and violation shall be punished by fine of not less than ten nor more than one hundred dollars for each offense, unless penalty be specially provided. The rules and regulations shall bear the seal of the board, be attested by the state health officer, and be published in the official state paper and distributed in pamphlet or leaf form to all health officers and any citizen asking for the same. They shall not be effective until thirty days after publication. All rules and regulations so adopted and published and all orders issued by the board in conformity with law shall be valid and in force, and prima facie reasonable and lawful until they are found otherwise in an action brought for that purpose or until altered or revoked by the board.”

[2][3][4] The ordinary method of reviewing the action of a board exercising legislative and quasi judicial power is by certiorari. Borgnis v. Falk Co., 1911, 147 Wis. 327, 133 N.W. 209, 37 L.R.A.,N.S., 489 We have no doubt that under this section orders of the board may be reviewed by certiorari and if the order complained of constitutes a clear violation of law either because not within the power of the board or is unreasonable, it may be set aside in such an action. State ex rel. Augusta v. Losby, 1902, 115 Wis. 57, 90 N.W. 188. In the absence of a special provision for review in ch. 159, it must be held that the general provision contained in sec. 140.05 (3) controls.

Section 159.03(1) provides: “The board shall enforce the provisions of this chapter and stall prescribe and enforce rules and regulations governing beauty parlors, and schools teaching cosmetic art and for the examining and licensing of managers, operators and manicurists and the registration of apprentices and students, and shall make and enforce rules governing sanitary and hygienic conditions surrounding the practice of cosmetic art and the conduct and operation of beauty parlors and schools of cosmetic art.”

[5][6] By the provisions of this section schools teaching cosmetic art become a part of the subject matter under the supervision of the State Board of Health to the end that the administration thereof shall be efficient and that the health of the public shall be protected. While laws creating administrative agencies generally provide that no action to set aside an order of such an agency shall be brought unless application has been made to the agency for a hearing thereon and no such provision is contained in ch. 159, that lack has been supplied by the State Board of Health by rule as will appear later. This rule is attacked on the ground that it is exercise of an undelegable legislative power. It is considered that this contention cannot be sustained. We shall spend no time demonstrating that an administrative agency can lawfully be empowered to make rules for its own procedure. What the complaining party is entitled to who seeks a review of an order of the State Board of Health is an opportunity to be heard and to have a record made upon which a review...