Wagner v. North Dakota Bd. of Barber Examiners

• Decision Date: 11 March 1971
• Parties: John WAGNER, Plaintiff and Respondent, v. NORTH DAKOTA BOARD OF BARBER EXAMINERS, Defendant and Appellant. Civ. 8675.
• Court: North Dakota Supreme Court

Page 570

186 N.W.2d 570

John WAGNER, Plaintiff and Respondent, v. NORTH DAKOTA BOARD OF BARBER EXAMINERS, Defendant and Appellant.

Civ. 8675.

Supreme Court of North Dakota.

March 11, 1971.

Rehearing Denied May 18, 1971.

Syllabus by the Court

1. The North Dakota Board of Barber Examiners is an administrative agency.

2. On appeal from an administrative agency under the Administrative Agencies Practice Act, a party invokes the appellate and not the original jurisdiction of the district court. Such appeal must be taken to the district court designated by law, and if none is designated, then to the district court of the county wherein the hearing or a part thereof was held by the administrative agency. Section 28--32--15, N.D.C.C.

3. Section 43--04--48, N.D.C.C., makes no designation of the district court to which an appeal may be taken from a decision of the board of barber examiners and, therefore, such appeal must be taken to the district court of the county wherein the hearing, or a part thereof, was held as provided by Section 28--32--15, N.D.C.C.

4. The requirement of Section 28--32--15, N.D.C.C., that an appeal from a decision of an administrative agency be taken to the district court designated by law, or if none is designated, then to the district court of the county wherein the hearing or a part thereof was held, pertains to the jurisdiction of the court rather than to venue, and the district court of a county other than that prescribed by statute has no jurisdiction of such appeal.

Johnson, Milloy, Eckert & Bailey, Wahpeton, for defendant and appellant.

Rausch & Chapman, Bismarck, for plaintiff and respondent.

TEIGEN, Judge.

The North Dakota Board of Barber Examiners (hereinafter referred to as the 'barber board'), by order entered after a hearing, suspended John Wagner's certificate of registration to practice barbering for a period of thirty days. Wagner appealed from the order to the district court. The district court reversed. Judgment of reversal was entered and an appeal was taken to this court.

We are met on the threshold with a jurisdictional question. The hearing before the barber board was held at Fargo, in Cass County. Wagner appealed to the district court of Burleigh County. The barber board appeared specially and moved for a dismissal of the appeal and to strike the case from the record of the court. The motion was grounded on the claim that the district court of Burleigh County was without jurisdiction of the subject matter. The motion was denied and the district court of Burleigh County proceeded to review the proceedings. On this appeal the barber board has specified that it was error for the district court of Burleigh County to have denied its motion.

The barber board is an instrumentality of the State and has state-wide jurisdiction. Section 43--04--12, N.D.C.C. Its duties are to administer the laws of this State regarding barbers, barber shops and barber schools. Chapter 43--04, N.D.C.C. Its orders are made subject to review in the courts. Section 43--04--48, N.D.C.C. An administrative agency is defined in the Administrative Agencies Practice Act as any 'board, commission, bureau, department, or tribunal other than a court, having state-wide jurisdiction and authority to make any order, finding, determination, award, or assessment which has the force and effect of law and which by statute is subject to review in the courts of this state.' Section 28--32--01, N.D.C.C. Therefore, we find that the barber board is an administrative agency.

Section 28--32--15, N.D.C.C., is a part of the Administrative Agencies Practice Act. It provides that, except in cases where the decision of the administrative agency is declared final by statute, any party to any proceeding heard by the administrative agency may appeal from such decision and that:

'Such appeal may be taken to the district court designated by law, and if none is designated, then to the district court of the county wherein the hearing or a part thereof was held.'

Section 43--04--48, N.D.C.C., provides that any applicant or licensee deeming himself aggrieved by any action of the barber board may file a petition in the district court, which shall have jurisdiction to affirm, reverse, vacate, or modify the order complained of. This section does not designate a particular district court. The attorneys for Wagner argue that because Section 43--04--48, N.D.C.C., does not designate a specific district court, an appeal may be taken under the Administrative Agencies Practice Act to any district court within the State, and that the provision contained in Section 28--32--15, N.D.C.C., requiring that an appeal be taken to the district court of the county wherein the hearing or a part thereof was held, is not applicable. They also argue that this requirement is not jurisdictional but has reference only to venue.

Section 28--32--15, N.D.C.C., provides for a tribunal for the review of decisions of administrative agencies in cases where the decision of the administrative agency is not declared final by any other statute, and specifically confers jurisdiction upon the district court of the county wherein the hearing or a part thereof was held unless another district court is designated by law. Section 43--04--48, N.D.C.C., makes no such designation. Therefore, the requirement of Section 28--32--15, N.D.C.C., is applicable. The plain words of this statute localize and specify the...