[3] I concur in the affirmance of this case but I would give consideration to the rules and regulations governing the practice of barbering.
The license to practice barbering is issued by the Commissioner of the State Department of Health. Section 2442, Code of 1939. That department is charged with the duty of establishing "the necessary rules and forms for carrying out the duties imposed upon it * * *." Section 2525, Code of 1939. And it is also charged with the duty of having such rules "printed in pamphlet form for each profession the following matter which is pertinent to the particular profession for which said pamphlet is published: * * * 2. The rules of the department relative to licenses." Section 2526, Code of 1939.
Pursuant to the direction of the above statutes, the Iowa State Department of Health adopted certain rules and regulations, effective June 1, 1941, and a pamphlet containing such rules and regulations, printed by the State of Iowa, was published by the State Department of Health. The pamphlet contains the certificate of Walter L. Bierring, M.D., Commissioner, Iowa State Department of Health, to the effect that said rules and regulations were adopted by the Iowa State Department of Health on May 1, 1941, to be effective June 1, 1941.
In the pamphlet, on page 11, sections 2447 and 2448 of the Code of 1939 (quoted in the majority opinion) are set out, but they are each followed by the following notes:
"Note. The annual renewal fee is $3. The Department will send the notice for the renewal license to the latest address as filed in the department. If any barber fails to receive a notice for the renewal of his license by June 1st of any year *Page 1041 he should forward three dollars to the department with a statement that it is for the renewal of his license. He should also give his latest address.
"Note. Any barber who does not pay his renewal fee before July 1st of each year is considered lapsed, and he cannot be reinstated without the approval of the Board of Examiners. We urge, for your own protection, that all renewals be paid prior to the above date."
This would seem to be a departmental interpretation that the statutory directive, contained in section 2447, that an application for renewal shall be made thirty days prior to July 1st is directory only and not mandatory. In any event it is a direction to renewal applicants that under section 2448 the department will issue a renewal license to applicants who pay before July 1st.
Since the defendant here sent his fee to the department on June 10th he was entitled, under the plaintiff's rules and regulations, to the renewal.
Defendant in his brief and argument sets forth the foregoing rules and regulations. Plaintiff in his reply brief and in oral argument contended the rules were not introduced in evidence and therefore no reference can be made to them. There is no denial of the rules and regulations; no argument that they were not in force at the time defendant made his renewal application in 1943; and no contention that they have ever been amended by the department that published them. They are the rules and regulations of an important state department adopted pursuant to statutory authority and direction. I feel that judicial notice should be taken of them by this court. 31 C.J.S. 599, section 39; Jones v. Anderson Cotton Mills, 205 S.C. 247, 31 S.E.2d 447; Werner v. Hearst Publications, 65 Cal. App. 2d 667,151 P.2d 308; Campbell v. Fong Wan, 60 Cal. App. 2d 553, 141 P.2d 43. I would hold that consideration should be given to these rules without their introduction in evidence.
In view of the foregoing, I would affirm.
BLISS, C.J., and OLIVER, GARFIELD, SMITH, and MANTZ, JJ., join in this special concurrence. *Page 1042