*1 bound car had to until it turn was within one hundred feet, because of lights until its which, then, would be reflected to the east A parked truck. truck parked so as to and to face, cast its lights, slightly to right, its because of which, aggravated by the further deception caused the vibration of the wind-shield of the approaching car, north-bound the driver thereof was misled into be- lieving that the truck was in motion and passing along, toward, right side of the road. In view of that combination of circum- stances, the issue whether the truck driver was negligent present- question ed a for the jury.” case applies
What the court there said of Schacht to others also, have except distinguished the Beck which we on other grounds. Our defendant was negligent conclusion is that whether toas both negligent William and Esther and whether William was as to de- questions jury. Hence, fendant were fact for the there should be an affirmance.
Affirmed. STATE EX REL. ARTHUR T. KRAUSMANN B. v. WILLIAM
STREETER AND BARBER (BOARD OTHERS OF
EXAMINERS).1 June 34,698. No. 1 Reported in 33 N. *2 for appellant. G. Maugland, Oscar Davidson and V.
F. Attorney General, Koch, respond- F. Assistant Special Robert ents. Justice.
Matson, writ of appeals judgment quashing Relator an alternative The directed mandamus. writ was Board of Barber ordering Examiners of the state of Minnesota to issue to relator a registration registered certificate as a teacher barter- ing in provisions accordance with the of L. c. (M. S. 154.01-154.26) or to why show cause such certificate should not be issued. on which into effect act, July 1945, provides above went
that no person may bartering teach Minnesota without first being registration issued certificate of as a teacher State Board may Barber Examiners. Under the act, certificate be obtained in either of two ways, (1) by satisfying requirements namely, certain to age, (2) as education, examination; qualifying under of M. A. 154.065, clause S. subd. 7, provides: which
“Any now person operating instructing or teaching in a school of bartering duly licensed under the laws of may Minnesota issued a section, license under this taking without such examination, *3 upon payment of fee prescribed.” (Italics herein supplied.) Relator, high who does not a have school education, has not taken steps to equivalent establish the thereof and is eligible acquire to a by certificate examination. He asserts, however, that he is entitled ato certificate without examination under the above clause. Relator became a in licensed barter 1934 and held has his barber’s license ever since. After he did study further in all phases of bartering scientific of upon a conclusion those studies an passed given examination National Educational Council of Associated Master In Barbers of America. 1937, he was awarded diploma a aas teacher of barber As a science. full-time member of teaching staff of the Moler Barter College of he Minneapolis, taught bartering again 1934 to 1938 and April from 1940 to During from 1938 to 1940 period operated he a beauty parlor. trial specifically court found that relator from April during 1943 to June 1945 in employed plant, was a war and that an aver- on employment this from such time off obtained he period Moler Barber he returned month, when once of about age barbering. teaching in thereof operator to assist the College find- amplification of these an testimony justifies Uncontradicted of men large numbers of the war by reason effect that ings, to the number of students whereby the into the services were inducted 1943, had decreased shortly prior April at and college, the barber was needed. As a full-time teacher one an extent to such a full-time basis. required no on longer were relator’s services result, and in com- act, subject to the selective service also Relator was draft board to enroll urged by was his age men of his mon with other industry. The draft board defense engage armed forces him age made unsuit- him into defense work because urged go under and reason of service. It was these military able for active gave up engaged that relator in war-plant employment. May 17, 1946, on for a teacher’s certificate under applied
Relator was application subd. His denied 154.065, ground on the that the he Board of Barber Examiners doing when the act was enacted became effective was not of the him a type which would entitle to certificate without examination. in effect and findings The trial court made similar found that re- arbitrary capricious had not acted in an manner but spondents refusing had exercised a sound discretion issue relator appeal judgment quashing license to teach. This is from the writ mandamus. printed to include record the neglected has
1. Appellant thereof) allowing the settled case. summary (or order trial court’s is no settled and without a there settled such order Without upon appeal determination given can no consideration case findings In the absence sustains fact. the evidence of whether correct, are and the findings presumed fact case, a settled *4 the conclusions of law. findings such sustain question whether 217 Minn. 14 N. 427, Coal & Oil Co. W. City Flour Hammond v. In Minn. 288 W. re 152; 206 Doyle Swanson, 56, v. (2d) 452; 196 Minn. 265 N. 333; State ex rel. Miller, 543, Estate of 165 Minn. 206 N. W. & Yapp Chase, 396; Dunnell, Dig. Supp. M. Here, pursuant S. A. the clerk of 605.04, the trial court § original transmitted to this court the record, judgment roll, and and we do settled therefore not have an absence of a settled case as the above contemplated decisions. The original records statute, transmitted under such although substitute complete printed record, may be referred to in determining whether there is a settled case. In order to insure timely adequate and con- of a sideration cause all members of appellate court, good practice requires a complete printed and record, although it need not include the whole of the trial court’s order for a settled case, nevertheless it should at least contain a statement indicating the date of entry and the fact the original that thereof will be for- warded to this court. the findings
2-3-4. Are
of the trial court
that
the respondent
board did
in an arbitrary
capricious
not act
manner to be sus
statutory
tained? What is meant
provision
“Any person
that
*
*
* * *
now
in a school of barbering
may be issued
* * *
* *
a license
taking
without
such examination
*”? The
* * *
words “now
teaching,” as used in
154.065,
words
similar
such as “at the time
import,
of the passage of this act,” are
uniformly held to mean not the time of
but
enactment,
the time
when the act takes effect. Mills v. State Bd. of Osteopathic Registra
tion & Examination,
463 absurd, result that is not intend a legislature did that sumption Aside A. 645.17. or unreasonable. M. S. execution, of impossible clause exception avoiding result, such an an unreasonable from in accomplish to so as interpretation receive a liberal should A. 48 L. R. 748, Minn. 81 N. W. Zeno, 80, v. 79 purpose. State tended Bd. of Pharmacy, of N. A. R. Tucker v. Y. State 88, 422; 79 S. Matter Air Inc. Transport, Y. S. 538, 217 Commonwealth 127 Misc. N. important, becomes 196 S. It Ky. 69, 303 Stuart, in mind. The legislative objective therefore, keep to the fundamental to from the grandfather exempt an or clause is exception of purpose on a pro for the first trade or statutory regulations imposed time newly engaged those thereof who are then fession members theory they acceptably field on who have followed regulated of who engaged trade for a or are profession period years, such qualifications may have the date, presumed on certain to therein to field subsequent which entrants must demonstrate exam U. 30 S. Ct. 54 L. ed. 173, 644, Watson v. 218 S. Maryland, ination. N. 47 603; Annotation, A. 136 Folsom, Hart H. to protect persons L. R. 219. those who designed The clause at effective of the statute were in the prior engaged and date barbering safeguard public welfare, of and who, as competence. their Matter of thereby had demonstrated Tucker v. N. Bd. Misc. 217 Y. S. Pharmacy, Y. State of 217. With be a mind, interpretation would indeed narrow purpose this protection legislature ascribe to the intent exclude of of the grandfather practitioners clause those active trade who and from con prior July 1, temporarily prevented were direct tinuing and active participation barbering because of beyond control, their ill wholly such as breaking leg, the destruction the school fire. ness, temporary incapacity has Obviously, nothing such unavoidable competence and should deprive their demonstrated to do with act. A reasonable benefits of the and liberal of the intended them clause grandfather determining who must, interpretation as a qualifies present without examination practitioner, thereunder take into consideration not merely the element of time as to direct performance active aas bnt also teacher, whether the applicant has in fact abandoned his trade or has suspended active full-time participation therein during and because of temporary cir- wholly beyond cumstances his control.
Illustrative of this of reasonable principle interpretation, in keep- ing legislature, with the manifest intent is the Tucker case, petitioner sought wherein writ mandamus to compel the state board to pharmacy registration transfer his certificate from his old drugstore to a new one at a different location.
clause of
York pharmacy
provided
the New
statute
(
“* * * pharmacist not a licensed any person, *, who at the registered act owns a pharmacy time the of this or a passage ** may continue own and conduct drug *, store the registered provisions (Italics with the of this article.” same in accordance supplied.) a when the drugstore
Petitioner owned statute was enacted, but on of his store May 10, 1925, dispossessed building by legal he was pro- following August he moved his store to new ceedings. his loca- pharmacy the state board refused to tion, whereupon transfer his in granting to the new store. The court the writ (127 license said 219) Misc. 217 Y. S. : very arbitrary
“It would be a
narrow and
construction of the ex-
if
particular drug
to hold
a
store
ception
that,
conducted
a per-
pharmacist
destroyed by
not a licensed
fire,
property
son
for
public use,
was condemned
or the landlord refused to renew
in which the
premises
a lease of the
store was
conducted,
priv-
ilege granted by
exception
thereupon
should
cease and determine.
question
All
intended
in
exception
that was
was that the per-
a
conducting
drug
son who was
store as
unlicensed pharmacist,
go
business,
in order to be
on with the
permitted
must continue
a
in
drug
uninterrupted
to own and conduct
store
the absolute
Me
business uninterrupted,
meaning
continues the
within the
sense.
when
interruption,
statute,
experiences temporary
even
he
if
or not he
the business. Whether
he does not abandon
condmct store or
de-
conducting
drug
pharmacy
abandons
business of
upon
and is a matter to be determined
circumstances,
pends upon
in
building
drug
each
which a
If,
case.
for example,
facts
pharmacist
totally
an unlicensed
is
de-
being
is
conducted
store
druggist
for the
by fire,
impossible
impracticable
and it is
stroyed
location,
he would not be held to have
to continue business
a reasonable
drug
during
abandoned the conduct
business
him
required
adjust
location,
his
obtain
new
affairs,
time
(Italics supplied.)
.
and restock his store.”
compelled by
relator was indeed
circum-
In the instant case,
give up
teaching temporarily.
his control to
beyond
stances
had
control over the reduction in the number of barber
Surely he
no
from a
war that absorbed
arising
students
world
the entire
college
required, in order to
man
of the nation. He was not
manifest
power
remain
not to abandon his
idle and not
trade,
engage
an intent
If
employment.
we assume that he was
fact not urged
other useful
by his draft board to enter a war
practically compelled
plant,
would not have been to his credit
if he had
obviously
voluntarily
make a useful contribution to the war effort. He
chosen not to
con-
and continued
permanent
to manifest
interest
barber
tinued
therein on a
teaching by regularly engaging
part-time basis. He who
requirements of
country
himself to the
of war
adapts
time
*7
It is also to be noted that
penalized.
not to be
the statute
using
“teaching”
word
does not indicate whether the teaching
must be
part-time.
general
The
rule is that
practitioner
of a
contemplation
in the
of the
profession,
trade
clause,
habitually
who
holds himself out to the public
(Hart
is one
as such
47 A.
Folsom,
Bryan,
H.
State v.
Peterson, Justice (dissenting).
I dissent.
AETNA CASUALTY & M. SURETY COMPANY v. JOSEPH
BROS AND ANOTHER. GEORGE H. APPELLANT.1 HARDISTY,
June 34,747. No. 1 Reported in 33 N. W.