[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
This appeal presents for our consideration the sole question of whether Section 12, Act No. 48 of 1936, is constitutional.
The Act involved is, according to its title, one:
"To regulate and control the Barber Industry, and for that purpose to further enlarge the present powers of the Board of Barber Examiners; defining its additional jurisdiction, powers, and duties; to approve agreements from each Judicial District; and providing penalties for violation of this Act."
The Board of Barber Examiners was created by Act No. 247 of 1928. Section 12 of the Act of 1936 provides:
"That the Board shall have the power to approve price agreements establishing minimum prices for barber work, signed, and submitted by any organized groups of at least 75% of the barbers of each Judicial District, after ascertaining by such investigations, and proofs as the condition permits and requires, that such price agreement is just, and under varying conditions, will best protect the public health and safety by affording a sufficient minimum price for barber work to enable the barbers to furnish modern and healthful services and appliances, so as to minimize the danger to the public health incident to such work."
That Section of the Act further provides that the "Board shall take into consideration all conditions affecting the barber profession in its relation to the public health and safety".
The same section further provides that:
"In determining reasonable minimum prices, the Board shall take into consideration the necessary costs incurred in the
particular Judicial District in maintaining a barber shop in a clean, healthful and sanitary condition."
As to the fixing of minimum prices which barbers are required to charge for their services, the same Section of the Act provides that:
"The Board, after making such investigation, shall fix by official order, the minimum price for all work usually performed in a barber shop."
By Section 4 of the Act, the Board of Barber Examiners is declared to be the instrumentality of the state for the purpose of attaining the ends sought to be accomplished by the legislation.
Section 8 of the Act provides that the Board may institute such judicial proceedings as may appear necessary to enforce compliance with any of the provisions of the Act, or compliance with any rule or order made by the Board pursuant to the requirements of the Act, and
"* * * in addition to any other remedy may apply to any District Court of competent jurisdiction for relief by injunction."
In addition to the civil proceedings authorized by Section 8 of this Act, the same section declares:
"That a violation of any provision of this Act or of any rule, subpoena or order of the Board lawfully made pursuant hereto, except as otherwise expressly provided by this Act, shall be a misdemeanor punishable by a fine not less than Twenty-five ($25.00) Dollars and not exceeding Three
Hundred ($300.00) Dollars, or by imprisonment not exceeding six months, or both, and each day during which such violation shall continue shall be deemed a separate violation."
A group of the prescribed percentage of barbers in the Third Judicial District, composed of the parishes of Lincoln and Union, signed and submitted to the Board of Barber Examiners an agreement establishing minimum prices for barber work in that Judicial District. The agreement was approved by the Board.
The defendant is a licensed barber, holding a certificate issued to him by the Board of Barber Examiners, and is registered. He owns and operates a barber shop in the Village of Bernice, in the Parish of Union, where he pursues his trade. He was notified of the Board's order fixing minimum prices. The minimum prices fixed by the Board were above those he was then charging. For about two months after receiving notice of the order, he charged prices in keeping with the order. At the end of the two months' period, he went back to his old prices. The Board was notified that he was violating its order and sent inspectors to get the proof. Subsequently he was called for trial before the Board. Evidence was adduced showing that he was disregarding the Board's order, and the Board suspended his license for six months and ordered him to cease business.
After his license was suspended, defendant continued to operate his shop, charging prices for his work less than the minimum fixed by the Board. Whereupon the Board brought this proceeding against him, under
Section 8 of the Act, alleging the facts above stated and praying that he be permanently enjoined from conducting his barber shop.
In addition to the civil proceeding brought by the Board to enjoin him from pursuing his trade, defendant is confronted with a criminal charge, filed by the district attorney under Section 8 of the Act. A copy of the bill of information was filed in evidence. The record shows, however, that the criminal case had not been disposed of at the time this civil proceeding was heard.
In his answer to this injunctive proceeding brought against him by the Board, defendant admitted that the prices he was charging for his work were less than the minimum prices fixed by the Board.
As a defense against the proceedings brought against him by the Board, he interposed the special plea that Act No. 48 of 1936, and especially Section 12 thereof, which grants to the Board the power to fix minimum prices for barber work, is unconstitutional, and for that reason the Board's order was null.
We here transcribe the pertinent portions of his answer and plea:
"That said Act, particularly Section 12 thereof, is in violation of Article 4 of the Constitution of Louisiana, particularly Section 7 of said Article 4, which provides that `No law shall be passed fixing the price of manual labor'."
"That said Act 48 of 1936, particularly Section 12 thereof, is in violation of Article 1 of the Constitution of Louisiana, particularly Section 2 thereof, which provides
that no person shall be deprived of life, liberty or property, except by due process of law."
"Further answering the petition, respondent avers that said Act No. 48 of 1936, the whole of said Act, particularly Section 12 of said Act, is in violation of the Constitution of the United States, particularly the fourteenth amendment thereof, [U.S.C.A.Const. Amend. 14], in that it seeks to deprive respondent of his liberty and property without due process of law, and to deny him of the equal protection of the laws, and in that it further, if enforced, would destroy his right of freedom of contract, necessary to enable him to earn a living for himself and his dependents; that his customers, owing to their lack of means, are unable to contract with him for his services as a barber, since they are unable to pay the minimum prices fixed by plaintiff, which are unreasonable and too high."
Elaborating his answer in connection with his plea of unconstitutionality, defendant alleged:
"Respondent avers that he is unable to earn a living if compelled to charge the minimum prices fixed by said plaintiff since his patrons are unable, because of their poverty and lack of means, to pay said prices, which are unreasonable, being too high and beyond the ability of his customers and patrons to pay; that the loss of his customers' patronage, due to the fact that they are unable to pay the unreasonable, high minimum prices fixed by said plaintiff, will deprive, and does deprive, respondent, of his liberty, of his
property, and of his right to contract and earn a living, for himself, as well as his wife and children, who depend upon him for support."
Issue being thus joined, the case went to trial. Both the Board and the defendant introduced evidence. There was judgment refusing the injunctive relief prayed for by the Board and decreeing "that Section 12 of Act No. 48 of 1936 be, and it is hereby, declared unconstitutional, void and without effect". This appeal is prosecuted by the Board.
We proceed at once to state the facts adduced at the trial, as disclosed by the record before us, because, in order to decide whether the Act is constitutional or not, it is necessary to decide whether the prices charged for barbering work under such circumstances and conditions as were shown to exist in this case, or may exist in any Judicial District in the state, have any real and substantial relation to the object or end to be accomplished by the legislation, which object is declared to be the protection and preservation of the public health.
Some of the pertinent facts are shown by official records made and kept by the Board. Others were admitted by the Board at the trial. The testimony of the defendant is not disputed.
There is in the record a statement of facts which was introduced in evidence at the trial and filed. We quote first the following extract from that statement:
"It is further agreed that on January 30th, 1937 the State Board of Barber Examiners
of Louisiana issued a certificate to the defendant, Noah E. Parker of Bernice, Louisiana, bearing its No. 3377B9, wherein the said defendant was authorized by said Board to practice as a barber in conformity with the provisions of Act 247 of the Legislature of Louisiana of 1928 and the provisions of the amending Act 126 of said Legislature for the year 1932, as per Exhibit marked `D'."
The plaintiff Board therefore admitted that defendant had been examined by the Board of Barber Examiners, as constituted by Act No. 247 of 1928, and found duly qualified to pursue the trade or business of barbering, and that a certificate to that effect had been issued to him.
Act No. 247 of 1928 is an Act, according to its title, "To regulate and define the profession of barbering, to create a Board of Examiners for the licensing of persons to practice said profession, and to practice as apprentices in said profession; to prescribe qualifications therefor; * * * to provide rules and regulations for the sanitation of barber shops; barber schools and barber colleges, for the purpose of promoting the general safety of the public".
Section 1 of the Act, as amended by Act No. 126 of 1932, provides that, after January 1, 1929, no person shall practice barbering without a certificate of registration issued by the Board of Barber Examiners, which Board is created by Section 20 of the Act, as amended by Act No. 126 of 1932. The Act, in Sections 5 and 6, prescribes the qualifications which one must be found to possess before a certificate or
license can be issued to him by the Board. The Act provides that no certificate of qualification shall be issued unless the applicant is at least 18 years of age, of good moral character and of temperate habits; unless he is free from any contagious or infectious disease, and has graduated from a school of barbering approved by the Board and has practiced as an apprentice for at least six months.
As we have said, the defendant was called before the Board of Barber Examiners and tried on the charge that he was disregarding the Board's order fixing minimum prices. Testimony was adduced before the Board, and at the trial of the case before the court the testimony taken at the trial before the Board was introduced in evidence. Mr. Terrill, an inspector for the Board, was called as a witness for the Board. He testified that he had inspected defendant's barber shop, and, on being asked about the sanitary conditions of the shop, said, "Well, I suppose it was sanitary, but it wasn't a modern shop, but fair for a small town shop". He was asked whether defendant had adequate sterilizing facilities and said, "I noticed a sterilizer on the work bench". He was asked whether the barber's tools were in the sterilizer and said, "Yes, they were".
There was filed in evidence an inspection report made by an inspector appointed by, and working under, the Louisiana State Board of Barber Examiners. This report, dated May 18, 1936, shows that, in so far as sanitary conditions were concerned, defendant's barber shop was "Grade A", which, according to a legend printed
at the bottom of the report, means "Good". We here quote the grades as shown by the certificate: Personal Appearance, A; Sterilization, A; Work Stand, A; Drawers, A; Sink, A; Tools, A; Linens, A; Dusters, A; Mugs and Brushes, A; Hones and Strops, A; Chairs, A.
It appears, therefore, that the defendant had complied with all the rules and regulations prescribed by law and the Board of Barber Examiners as to personal qualifications, and that the Board found no cause of complaint regarding the sanitary condition of his barber shop. The inspector gave him "Grade A" on all points.
It is appropriate to state here that this certificate of qualification and the inspection certificate giving the defendant "Grade A" on the sanitary condition of his barber shop were issued at a time when he was charging fifteen cents for a shave and twenty-five cents for a hair-cut, which charges are less than the minimum fixed by the Board.
Referring again to the agreed statement of facts, we quote the following extracts therefrom:
"It is further agreed that the defendant charged from February 4th, 1936 to about October 10th, 1936 twenty-five cents for hair cuts and fifteen cents for shaves during which period of time he was able to earn a living; that for about a period of three months from October 10th, 1936 he charged for his work as a barber the prices agreed to under which said minimum price fixed for said Board of Barber Examiners
namely, 40¢ per hair cut and 25¢ per shave during which period of time he was unable to earn a living. Due to the fact that a large number of persons residing in and near Bernice, who were his patrons were unable to pay 40¢ for haircuts and 25¢ for shaves, with the result that the income of the defendant was reduced to the point where he was unable to earn a living.
"That since and after charging the minimum prices as fixed in the price agreement of the barbers, adopted by the Board, he charged 25¢ for haircuts and 15¢ for shaves, when his income was increased to the point where he was able to earn a living."
The defendant as a witness in his own behalf testified that he was married, living with his wife and that they had seven children, all living with them; that his license and the certificate of inspection were issued to him while he was charging fifteen cents for shaves and twenty-five cents for hair-cuts; that, during all the time he charged these prices, his revenue from his barber shop, which included his personal earnings and the percentage he received from his helpers, was from $175.00 to $200.00 per month — an amount which was ample to support himself and his family and to keep his shop in such sanitary condition as was required by the Board of Barber Examiners and the State Board of Health; that, during the time he charged twenty-five cents for shaves and forty cents for hair-cuts, which were the minimum prices fixed by the Board, his revenue was so reduced that he was unable
to make a living; that, when he abandoned the prices fixed by the Board and went back to his original prices, his revenue again became sufficient for all his needs.
There was no attempt to rebut the testimony of the defendant. In fact, the major portion of it is embodied in the agreed statement of facts.
We find no merit in defendant's plea that Section 12, Act No. 48 of 1936, violates Section 7, article 4, of the State Constitution, which provides that "No law shall be passed fixing the price of manual labor". The occupation of a barber is classed as a "mechanical pursuit" and not as manual labor. State v. Hirn, 46 La.Ann. 1443, 16 So. 403; State v. Dielenschneider, 44 La.Ann. 1116, 11 So. 823; State v. Cohn, 184 La. 53, 165 So. 449.
Section 2, Article 1, of the State Constitution says that "No person shall be deprived of life, liberty or property, except by due process of law". And the Federal Constitution (U.S.C.A. Const. Fourteenth Amendment) contains this provision:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
It is too clear to admit of argument that, if the statute under consideration is valid legislation and is enforced in this case, defendant's freedom to enter into such contracts relating to his work as he sees fit to
make, which freedom is guaranteed to him by the Constitution of this state and that of the United States, will be utterly swept away. His right to work and earn a living and his right to sell his services at his own prices will be stricken down. In a legal sense, these rights and privileges are property. This property will be taken from him. He will be deprived of his liberty, for the right to make contracts is embraced within the concept of liberty as guaranteed by both the State and the Federal Constitutions.
If the statute is valid, the courts are bound to grant the injunction prayed for by the Board, and, not only that, if the criminal prosecution now pending against him is pressed, he may be deprived of his liberty of person under that Section of the Act which makes a violation of the Act, or of any rule or order made by the Board, a misdemeanor, the punishment for which is a fine of not less than $25.00 and not exceeding $300.00, or imprisonment for not less than six months, or both.
In the case of Allgeyer et al. v. State of Louisiana,165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832, the Supreme Court of the United States reaffirmed the following principle, which is fundamental under our form of government:
"`Liberty,' as used in the provision of the fourteenth amendment to the federal constitution, forbidding the states to deprive any person of life, liberty, or property without due process of law, includes, it seems, not merely the right of a person to be free from physical restraint, but to be free in the enjoyment of all his faculties in
all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to carrying out the purposes above mentioned." (Syl. 1)
See also Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, L.R.A. 1915C, 960.
These rights and privileges cannot be taken from a citizen without due process of law. But the right to contract, to own and use property, is not absolute. Private rights must always yield to the public good. In the case of Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469, the Supreme Court said (page 510):
"Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest."
The power of the state to promote the general welfare, to protect the health and morals of the people generally, is inherent in government. To that end, the state may regulate any business affected with a public interest.
Now conceding that the barbering business is "affected with a public interest", in the sense that it affects the health and safety of the public, it follows that the state may regulate it to the extent of requiring barber shops, as well as barber schools, and all linens, mugs and brushes, shears and strops, etc., used therein, to be kept clean and in a sanitary condition, and may require barbers to possess certain qualifications. That, we think, cannot be questioned. It has been so held by the courts of this and other states. Such regulations are necessary to protect the public health. Not only has the state that power, but it is burdened with the duty to do so. Such regulations and requirements are valid under the state's police powers.
This state exercised that power and discharged that duty by adopting Act No. 247 of 1928, which Act was amended by Act No. 126 of 1932. That is purely a regulatory statute. It requires barbers to possess certain qualifications to be ascertained by an examination conducted by a Board of Examiners created by the Act. The Act provides that, before an examination is given, the applicant must present evidence of good moral character and temperate habits; that he must be free from disease and be graduated from a school of barbering approved by the Board.
As to sanitation, Section 22 of the Act, as amended by Act No. 126 of 1932, provides that the Board shall have authority "to prescribe sanitary requirements for barber shops and schools, subject to the approval of the State Board of Health", and that "any member of the Board, its agents,
or assistants, shall have authority to enter, and to inspect, any barber shop or barber school at any time during business hours". It is provided in Section 21, as amended by Act No. 126 of 1931, that the Board "shall have authority to employ inspectors, clerks and other assistants, as it may deem necessary to carry out the provisions of this Act, for such compensation as it may determine".
Section 18 of this Act, as amended by the Act of 1932, specifies in minute detail all the precautions which must be taken by barbers to protect public health.
The same section of the Act makes it a misdemeanor punishable by a fine of not less than $25.00 or more than $200.00 for any barber to violate any of these prescribed regulations.
A more complete set-up for the protection of the health and safety of the patrons of barber shops and the public can hardly be imagined. The Act is replete with details. The machinery set up for its enforcement is perfect. The enforcement of its provisions by the Board which it creates and which is given full power and authority to see that all such regulations are observed, affords all the protection to the public health that it is possible to give.
But Act No. 48 of 1936 goes further. Section 12 confers upon that Board the additional power and authority to fix minimum prices to be charged by barbers for their work in each of the Judicial Districts of the state.
It is true that the state may, on proper occasion and for adequate reasons, strike
down private contracts, take or destroy private property, or deprive a citizen of his liberty to be at large. But such cannot be done except in the exercise of its police power. Police power is inherent in the state. Under that power the state may enact laws to protect and preserve social order, to restrict and punish crime, to preserve the public peace, to safeguard and protect the health and morals of the people, even though the effect of such laws is to strike down private contracts, to deprive the citizen of his liberty to contract and to take from him or destroy his property. But the legislature is prohibited from enacting such laws except on proper occasion and for adequate reasons. If the reasons are not adequate, such legislation violates the due process clauses of the Constitutions.
The foundation laid to support Section 12 of this Act is declared in Section 1 thereof to be "to protect the public welfare, public health and public safety". The Act was therefore adopted under the guise of exercising the state's police power. Section 1 of the Act declares "That this Act is enacted in the exercise of the police power of this State".
The declared purpose of the Act, the end sought to be attained, is a legitimate exercise of the state's police power. But the question which at once arises is whether there is any real and substantial relation between the prices charged for services in barber shops and the public health and safety.
Under the Act the fixing of prices is resorted to as a means to attain the end
sought. If the means prescribed bears no relevancy and has no real and substantial relation to the end sought to be attained, the very foundation of Section 12 of the Act, the price fixing provision, is swept away and the Section must fall.
As we have already pointed out, the public health and safety, in so far as it is affected by the business of barbering, is amply protected by the regulatory Act of 1928, as amended in 1932. If the provisions and requirements of that Act are complied with — and the Board of Barber Examiners is given full power and authority to see that they are — the public health and safety cannot possibly be affected by the prices charged by barbers for their services.
This court has already decided that a city, which may, like the state, adopt measures to protect the public health under its police power, cannot, under the guise of exercising that power, control the operation of barber shops by means which have no real relation to, or connection with, the public health. In City of Alexandria v. Hall, 171 La. 595, 131 So. 722, a barber was convicted of violating an ordinance of the city which provided that barber shops and beauty parlors should not be opened before 8:00 a.m. and should be closed by 6:30 p.m. except on Saturdays and days preceding legal holidays. He attacked the ordinance on the ground that it deprived him of his personal liberty.
The city attempted to maintain the constitutionality of the ordinance on the ground that it was a health measure, adopted to protect the public health, and
to that end introduced testimony of medical experts, who testified that the "longer the hours of work are, the more run-down becomes the system of the barber, and the more susceptible is he to communicable diseases, and that thereby the public health may become endangered".
The same ordinance which prescribed the hours for the opening and closing of barber shops and beauty parlors also provided that "All barber and beauty shops and parlors shall be open for inspection any time during business hours to the City Health Officer or his deputies or assistants", and provided "for the sterilization of all tools and instruments used in barber or beauty shops". It further provided that "no person afflicted with any communicable disease shall work or be employed in any such shop or be served therein". It provided further that "The Health Officer of the City of Alexandria shall have the power to require a barber suspected by him of having any communicable disease to submit himself for examination by a practicing physician or the Health Officer".
That ordinance, like the regulatory Act of 1928 to which we have referred, if enforced, afforded ample protection to the public. The ordinance was held to be unconstitutional, this court saying through Justice Land as its organ (page 724):
"In our opinion, the public health is protected by the provisions of the ordinance itself requiring inspection of barber shops, sterilization of instruments, and examination of all barbers suspected of having communicable diseases.
"Besides, the requirement in the ordinance that barber shops shall be closed at 6:30 p.m. throughout the year, with certain exceptions, is not really an appropriate measure for the protection of the public health, as the alleged necessity for the restriction in the ordinance bears no reasonable relation to public health, is not supported by anything of substance, but rests, in our opinion, upon mere conjecture."
In the course of the opinion, Justice Land quoted at length from the case of State v. City of Laramie, 40 Wyo. 74,275 P. 106, 107. Among other things, the Wyoming Supreme Court said:
"The claim that the restriction in the law bears a reasonable relation to a public interest must not rest on mere conjecture, but must be supported by something of substance."
There is a deadly parallel between the Hall Case and the one at bar. There the ordinance itself provided for the protection of the public health. Here the regulatory Act of 1928, as amended in 1932, contains ample provisions for that purpose. There the contention made to support the validity of the ordinance was the "conjecture" that the fixing of the hours for opening and closing of barber shops had some reasonable connection with the public health. Here Act No. 48 of 1936 declares in Section 1 that, due to competition and unfair price cutting, the prices presently prevailing for services rendered by barbers have become so low that "it is impossible for an average barber, although working regularly, to support
and maintain reasonably safe and healthful barbering services to the public."
This, too, is mere "conjecture", because it is common knowledge that economic conditions are not everywhere the same. A foundation to support legislation of this character cannot be created by legislative fiat.
For the fixing of minimum prices for barbering services, each Judicial District is made a unit. We take official cognizance of the composition, location and size of each Judicial District in the state, as well as the location and size of each of the cities and villages therein. These are all shown by the Constitution, official maps and census enumerations. We know that in some of the Districts there are both cities and villages.
Section 12 of the Act says that:
"In determining reasonable minimum prices, the Board shall take into consideration the necessary costs incurred in the particular Judicial District in maintaining a barber shop in a clean, healthful and sanitary condition."
Economic conditions in the cities and the villages are not the same. It is common knowledge that the costs of living and the costs of conducting any kind of business are higher in cities than in villages. All overhead charges, such as the price of lots, the cost of building, rents and taxes, are higher in cities. Therefore the necessary costs incurred by city barbers in conducting their businesses are higher than those incurred by village barbers. The same is true as to barber shops in different sections of
the same city. It necessarily costs more to operate a five-chair barber shop in the business or financial sections of New Orleans, Baton Rouge, Lake Charles and Shreveport than to conduct one of the same size and equally sanitary in the outlying and poorer sections of the cities.
For this reason the village barber and the barber whose shop is located outside the "high rent" and most expensive section of a city can well afford to sell their services for less than the others must necessarily demand for like services and, at the same time, keep their shops in a clean, sanitary condition.
All the law requires, all it can require, of any barber is that he have such personal qualifications and keep his shop in such sanitary condition as to protect the public health. If he lives up to these requirements, he cannot be restrained from, nor penalized for, selling his services at such prices as are satisfactory to himself and his customers.
The reasons we have stated above show and the facts adduced at the trial of this case demonstrate that the price-fixing Section of this Act rests upon an erroneous premise; that it rests upon "conjecture" and is not "supported by anything of substance".
In Nebbia v. People of State of New York, supra, the Supreme Court upheld the New York law which authorized the Milk Control Board to fix the prices of milk. That case is cited by counsel for the Barber Board in this case. But the "occasion" for
that law was not "conjecture" but the facts found to exist by a legislative committee, which facts are that "The situation of the families of dairy producers had become desperate and called for state aid similar to that afforded the unemployed, if conditions should not improve", and that the supply of milk, "an essential item of diet", would be so diminished as to affect the public health.
Two recent cases, decided by courts of other states, are on all fours with the one at bar. In City of Mobile v. Pat Rouse,233 Ala. 622, 173 So. 266, 111 A.L.R. 349, decided March 18, 1937, Rouse, a barber, was convicted in a recorder's court for serving his customers at prices less than the minimum prices fixed by a city ordinance. He appealed to the Circuit Court of Mobile County, and at the trial there he attacked the validity of the ordinance, "on the ground that the fixation of a minimum charge for such personal services by ordinance was an invasion of their constitutional liberty". He also questioned on the same ground the constitutionality of the act of the state legislature which purported to confer authority on municipalities having a population of not less than 60,000 and not more than 250,000 inhabitants, to fix by ordinance such minimum prices.
The Circuit Court of Mobile County reversed the ruling of the recorder's court and held that the ordinance was invalid. The City of Mobile applied to the Supreme Court of Alabama for writs to review the ruling of the Circuit Court. The writs
were denied. The supreme court said that, if the act of the legislature authorizing the city to fix minimum prices was constitutional, the ordinance was valid, and it was necessary therefore to decide whether the act of the legislature was constitutional.
The supreme court held that the act of the legislature was unconstitutional and that the ordinance was therefore invalid.
Act No. 48 of 1936 seems to be identical in every detail with one adopted by the legislature of Florida in 1935. In State ex rel. Fulton v. Ives, 123 Fla. 401, 167 So. 394, the Florida act was declared unconstitutional by the supreme court of that state. In that case, Fulton, a barber, applied to the State Board of Barber Examiners for a renewal of his certificate of registration as a barber. The Board refused to issue the certificate (page 395) "because of the applicant's alleged `failure to live up to the prices as set' by the board of barber examiners in July, 1935, by an order `purporting to fix a minimum price for all work usually performed by Relator as a registered and practicing barber in the City of Jacksonville, Florida'".
The barber's attack against the Florida law was identical with that urged by the barber in the case at bar against the Louisiana statute.
The opinion of Ellis, presiding justice, holding the act unconstitutional, and the special concurring opinion of Justice Brown are both quite illuminating and are directly in point here.
For the reasons assigned, the judgment declaring Section 12, Act No. 48 of 1936, unconstitutional is affirmed.
PONDER, J., dissents.