These proceedings concern the power of a State administrative agency to revoke approval of a barber college without an administrative hearing, which agency approval is necessary to the school's existence.
Petitioner, Mrs. Cecile Parker, doing business as the Louisiana State Barber College, filed this rule against the Board of Barber Examiners, praying for stay of an order disapproving her school as an authorized barber college, and for judgment in due course annulling said order and reinstating Louisiana State Barber College as an authorized barber school. Petitioner appeals from judgment of District Court denying the relief sought after trial on the merits.
Upon her husband's death in 1950, petitioner (herself an authorized barber and teacher) continued to run the Louisiana State Barber College, which had received consistent approval from the Board of Barber Examiners during its previous almost twenty years of existence. The record indicates that during the latter part of 1953, the Board felt that petitioner was not maintaining the curricula or standards required by statute and its rules and regulations. In the course of a Board meeting held at the college on October 6, 1953, primarily to examine applicants for barber training, these matters were called to petitioner's attention, and certain improvements were requested. In January 1954, the Board sent petitioner a letter stating that by action taken at the January Board meeting "the school is disapproved until such time as you comply with the necessary curriculum governing barber schools". However, certain adjustments were immediately made, and the school was reapproved and continued in operation, the Board continuing to approve applications of students to enter the school and to maintain regular inspection of the premises and the attendance.
The record is devoid of any further notice to petitioner of deficiency, formal or otherwise, until petitioner received a registered letter dated February 16, 1955, or more than a year later. This letter stated: "it becomes necessary at this time to disapprove the school" for certain specified violations.
Simultaneously, the Board sent a registered letter to each of the school's 10-15 students stating in part: "You are hereby notified that the Louisiana State Barber College is being disapproved this date. Any student who attends the school after this date will do so at his own risk, and will be liable to having charges preferred for working without a license"; which, as counsel for petitioner observed, "resulted in these students fleeing the plaintiff's school as they would the plague".
To simplify the legal issues, it should be observed that as to the Board meeting of October, 1953 (the only one at which petitioner was present when the matters giving rise to this litigation were discussed), the Board's Secretary himself testified it was only a "general discussion, * * * on a friendly basis", an "informal situation". This meeting, or others of which petitioner had no advance notice and at which she was not present, could not be a "hearing" in the legal or constitutional sense, lacking notice and reasonable opportunity to be heard concerning specified issues, Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; 73 C.J.S., Public Administrative Bodies and Procedure, § 132—Elements and Essentials of Hearing in General, p. 456.
Petitioner alleges that she has been deprived without a hearing of a valuable property right in this going barber college which had been in existence 23 years, and urges: (1) the order of the Board disapproving her school is void because she did not receive the notice and hearing allegedly required by the statute regulating the subject; or (2) if (as the Board contends) the statute does not require such hearing, then she has been deprived of her property without due process of law in contravention of Art. 1, Section 2, La. Constitution-LSA, and U. S. Constitution, Fourteenth Amendment, since "due process" requires a hearing before she is deprived of her property.
It is illegal to practice barbering, or serve as apprentice to a barber, without a "certificate of registration" issued by the Board pursuant to certain statutory requirements, LSA-R.S. 37:349. As a necessary preliminary to receive such certifiates, inter alia, an applicant must have "graduated from a school of barbering approved by the board", LSA-R.S. 37:355.
The statute further provides: "No school of barbering shall be approved by the board" unless certain specified admission, curriculum, and instruction requirements are met, LSA-R.S. 37:357.
Although in the remaining portion of Part I. "Licensing and Regulation", Sections 341-376 inclusive, there are provisions concerning suspension, revocation, or refusal to issue or to renew "certificate of registration" as barber or apprentice, LSA-R.S. 37:365, but only after "notice in writing" and "public hearing", LSA-R.S. 37:366, there is no further reference in the statute to approval or revocation of approval of barber schools, although several other sections manifest that barber schools are subject to regulation by the Board.
In urging that the regulatory statute requires a hearing with reasonable notice before issuance of an order, and that the order herein is invalid since it failed to
However, the Board correctly urges that these statutory requirements apply only to investigations authorized under "this Part", that is, Part II, "Unfair Competition and Trade Practices" LSA-R.S. 37:411 through 425. This section does not apply to Part I, "Licensing and Regulation", in which is contained provisions relative to approval of barber colleges.
Thus the statutory regulations do not provide any mandatory requirement for notice and hearing before approving or disapproving barber colleges. And, it may be added, they do not contain any specific provision for judicial review of actions of the Board in regard to such matters; for the only section of the entire Chapter pertaining to judicial review is LSA-R.S. 37:421, contained also in Part II, and specifically limited to "Any applicant or licensee * * * aggrieved by any action of the board taken under any of the provisions of this Part * * *." (i. e., Part II.)
On behalf of the Board, it is argued that the Board has exclusive authority to approve or disapprove schools of barbering, and that "this is a power solely within the discretion of the Board and not even subject to judicial review". This argument has the demerit of overlooking Article 1, Section 6, La.Const., which provides: "All courts shall be open, and every person for injury done him his rights, lands, goods, person or reputation shall have adequate remedy by due process of law". Such a construction would render the statutory provision unconstitutional; Meyer v. Board of Trustees, 199 La. 633, 6 So.2d 713.
On the other hand, petitioner urges that in order to satisfy the constitutional requirement
It is true that due process necessitates a hearing before final action, that all shall have their "day in court". "The `due process of law' provision in the Constitution is designed to exclude oppression and arbitrary power from every branch of the government. * * * It means that no person shall be deprived of life, liberty, property, or of any right granted him by statute, unless the matter involved shall first have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings. It forbids condemnation without a hearing", Dupuy v. Tedora, 204 La. 560, 15 So.2d 886, at page 890. "`Due process of law in its procedural aspect requires a notice and opportunity to be heard in an orderly proceeding adapted to the nature of the case, in accord with established rules'", Vaughan v. Housing Authority of New Orleans, La.App., 80 So.2d 561, 565.
But we do not feel that the "due process" requirement is the constitutional strait-jacket claimed by petitioner; that an administrative agency may never issue an order affecting the private right of an individual subject to its regulation without formal notice and hearing before such order. The due process requirement may also be satisfied if a full hearing in the courts is available after the administrative order, with judicial power to stay irreparable injury to him affected.
The Legislature "may prescribe a procedure in which the initial order is upon legislative or wholly administrative consideration [without hearing] and the full hearing is afforded in a [subsequent] court action. If the court proceeding includes the full right to present evidence, to meet issues, and to explore the evidence and conclusions of the legislative or administrative agent, due process of law exists. * * * However, if the state procedure consists of administrative consideration without hearing, and court consideration merely by way of review of the determination below without new evidence or exploration by cross-examination, a federal court will set aside the final order as without due process", Jordan v. American Eagle Fire Ins. Co., 83 U.S.App.D.C. 192, 169 F.2d 281, at page 290. See 42 Am. Jur. 474-5, Verbo "Public Administrative Law", Section 135, "Necessity for Notice and Hearing"; 73 C.J.S., Public Administrative Bodies and Procedure, § 130— Notice and Hearing, pp. 452, 454-455.
We further agree with the Board that the Legislature constitutionally delegated to it the power to determine whether or not barber colleges possessed the specific requirements prescribed by the Legislature as a prerequisite for approval (LSA-R.S. 37:357; see footnote 1 above). "`The authority of the Legislature to delegate to the administrative boards and agencies of the state the power and authority of ascertaining and determining the facts upon which the laws are to be applied and enforced cannot be seriously disputed'", State ex rel. Porterie v. Housing Authority of New Orleans, 190 La. 710, 182 So. 725, at page 739; cited and approved in Hunter Co. Inc., v. McHugh, 202 La. 97, 11 So.2d 495. See also National Bank of Commerce in New Orleans v. Board of Supervisors, 206 La. 913, 20 So.2d 264.
Nor is the Act unconstitutional for failure to provide in the Act itself for judicial review of Board actions of approval or disapproval of barber schools; for when the statute is silent in this regard, in accord with the presumption of constitutionality of legislative enactments, it is presumed that the Legislature did not seek to deprive the aggrieved person of his ordinary right to trial de novo and review of adverse action in the courts, State ex rel. Rathe v. Jefferson Parish School Board,
But although we hold the statute in itself not unconstitutional, we do feel that by the application of it in the present instance petitioner has been deprived of property without due process of law.
Implicit in all the cases above cited, and explicitly stated in some of them, is this principle:
If the effects of the Board's order of disapproval can be stayed until the judicial hearing and determination, then a person who feels aggrieved by a Board's summary order cannot complain of a deprival of property without due process of law. But in this instance, although petitioner under an allegation of irreparable injury had the right to seek an immediate restraining order and other judicial injunctive relief, nevertheless the courts could not protect petitioner from irreparable injury: For upon simple order of the Board without hearing, the petitioner's school was effectively closed; the students quit, since (restraining order or not) they could attend petitioner's barber college only at the risk of receiving no credit for time and money spent if judicial review upheld the Board action. The students could not be expected to be so interested in petitioner's welfare as to gamble their time and money on her behalf (although amazingly enough, the record reflects that one student still attends the school).
It is entirely possible that the Board has the power under its rule-making powers
For the above and foregoing reasons, the judgment of the District Court herein is reversed. It is ordered, adjudged, and decreed that there be judgment herein in favor of petitioner, Mrs. Cecile T. Parker, d/b/a Louisiana State Barber College, and against the defendant, the Board of Barber Examiners, State of Louisiana, annulling—and ordering said Board to recall, vacate, and set aside—the order of defendant Board of February 16, 1955, disapproving petitioner's school; further (in accordance with petitioner's prayer) ordering the defendant Board to notify in writing all of the students of petitioner's school of this action. This decree is without prejudice to defendant Board to subsequently reinstate disapproval of petitioner's school, providing the requirements of due process of law are satisfied. Defendant-appellee, being a "public board or commission," is dispensed from paying court costs under LSA-R.S. 13:4521, other than court reporter costs in the trial court, which latter are assessed against appellee-Board.
Reversed and rendered.