Ex parte Lucas

61 S.W. 218, 160 Mo. 218, 1901 Mo. LEXIS 51

• Court: Supreme Court of Missouri
• Decided: February 19, 1901
• Status: Published

Opinions

MARSHALL, J.

This is a proceeding by habeas corpus, to test the legality of the imprisonment of the petitioner by Samuel Chiles, marshal of Jackson county, under an information filed in the criminal court of Jackson county by the prosecuting attorney of that county, charging him with practicing the occupation of barber without having procured a certificate of authority so.to do from the State Board of Examiners for barbers, contrary to the provisions of chapter 78, Eevised Statutes 1899, being “An Act to establish a board of examiners and to regulate the occupation of a barber, in this State, and to prevent the spreading of contagious disease,” approved May 5, 1899. [Laws 1899, p. 44.]

The petitioner has not yet been tried on that information, but pending the trial, he applied to one of the judges of this court, and obtained the writ of habeas corpus. The petitioner asserts that the Act of 1899 is unconstitutional and void, and therefore there is no law or authority warranting his arrest,' detention or prosecution, and hence he is entitled to have his liberty restored to him by this great writ of right, which the Constitution of this State (sec. 26, art. 2) declares shall never be suspended. The Act of 1899 is claimed-to be in conflict with section 53, article 4, section 1, article 6, section 3, article 10, section 4, article 2, section 30, article 2, section 43, article 4, section 5, article 9, section 28, article 4, the whole of article 3 of the Constitution of Missouri, and with the fourteenth amendment to the Constitution of the United States, and with section 2, article 4, of the Federal Constitution.

If the act offends against so many provisions of the organic law of the United States and of the State of Missouri, the petitioner is suffering a grievous wrong by being arrested, cast into prison, compelled to stand trial and employ cormsel to defend him, simply because he has offended against its provisions when the act itself is a greater offender against the law than he is against the act.

The particular points relied on by petitioner as affecting the unconstitutionality of the act are: Eirst, that it is a special law, because it applies only to such cities as now have a population of 50,000 and does not apply to such cities as may hereafter attain such a population; second, that it requires all barbers who were practicing their trade on the date of the passage" of the act (May 5, 1899) to apply to the board of examiners for a certificate within ninety days thereafter (which time would expire August- 5), and as the law did not take effect until August 22 (ninety days after the General Assembly adjourned on May 22), the Governor could not appoint a board of examiners until that time, and therefore there could be nobody to issue a certificate. Or otherwise stated, the act requires barbers who were practicing their trade on May 5 to obtain a certificate by August 5, when there could be no board authorized to issue such a certificate until August 22, or until seventeen days after the expiration of the time limited by the act for such barbers to obtain a certificate. The result is claimed to be that barbers who were practicing their trade on May 5, 1899, were effectually barred from ever afterwards practicing tbeir trade in any city having over 50,000 inhabitants, and would be compelled to move to cities having less than 50,000 inhabitants in order to practice their trade; third, that the act requires the Governor to appoint a board of three examiners, one to be recommended by the Missouri State Barber’s Protective Association, one by the Boss Barber’s Protective Association and one by the Journeymen Barber’s Union, all, however, subject to approval as to qualifications by the State Board of Health, and this method of appointing is claimed to interfere with the division of powers between the legislative and executive branches of the government; and further because it requires a recommendation from such unions as a condition precedent to the right of the Governor to appoint, it is asserted that it might in effect repeal the law because such unions might refuse to recommend any one, and because in this way legislative functions are delegated to these unions; fourth, that the act provides that the board of examiners shall receive a compensation of three dollars a day and railroad and traveling expenses to be paid out of any money in the hands of the treasurer of the board, and this is asserted to be in conflict with section 43, article 4 of the Constitution, which provides that all money received by the State from any source whatever shall go into the treasury of the. State and shall not be drawn out except pursuant to a regular appropriation made by law.

These propositions will be considered in the inverse order of their statement, so disposing of the least meritorious first.

The fourth contention is not well founded for the simple reason that section 43 of article 4, applies only to money provided for and received by the State. The money authorized to be collected under this act is not State revenue, but is simply a provision to malee the? board of examiners self-supporting.

The third contention is one which is not available to the petitioner. I-f the act is unconstitutional because it limits the Governor’s privilege of appointment to persons recommended by the unions specified, the Governor alone could object. If he does not do so no one else can complain. That no such trouble has arisen under this act is shown by the fact that it appears that in fact the Governor has appointed a board of examiners — whether they were recommended by such unions or whether the Governor treated that provision of the act as unconstitutional and appointed such persons as he chose does not appear — and that this prosecution is at the instance of that board. No right of this petitioner has been invaded by the method of appointment provided by this act. But it may be observed, en passent, that section 9 of article 14, of the Constitution provides: “The appointment of all officers not otherwise directed by the Constitution shall be made in such manner as may be prescribed by law,” and that the Constitution does not prescribe how the board of examiners for barbers shall be appointed. The conclusion follows that it was competent for the General Assembly to provide the manner, form and conditions precedent for their appointment, and in so doing no constitutional prerogative of the Governor was infringed or impaired.

The fact that the unions might refuse to recommend any persons for appointment would have an effect upon the practical working of the law, but not upon the law itself. But no such refusal could interfere with the operation of the law, for the parties could be mandamused and compelled to act. [City v. Weitzel, 130 Mo. 620.] The law would not be repealed by such refusal. The same result would follow if the power to appoint had been conferred upon the Governor and for any reason he saw fit not to make the appointment. His refusal would not have the effect to repeal the law. Nor does such a contingency render the act obnoxious to the objection that it is a delegation of legislative power. The act, whatever its force and practical efficacy may be, is the product of legislative will. Whether the instrumentalities provided for its enforcement are adequate or not does not take away from its constitutionality as a legislative enactment.

The second contention, that the time limited for barbers practicing their trade at the time of the passage of the act to qualify expired seventeen days before the act took effect or before the board of examiners could qualify them, and therefore the act is a prohibition levelled against all barbers who-were so practising their trade from ever afterwards following their occupation except in cities of less than 50,000 inhabitants, is the necessary deduction from following the rule of construction expressed in the maxim, “Qui haeret in Hiera, haeret in cortice

Section 36, article 4. of our Constitution provides: “No law passed by the General Assembly, except the general appropriation act, shall take effect or go into force until ninety days after the adjournment of the session at which it was enacted, unless in case of an emergency (which emergency must be expressed in the preamble or body of the act), and the General Assembly shall, by a vote of two-thirds of all members elected to each house, otherwise direct,” etc. Section 6595, Revised Statutes 1889, is to the same purport.

Under this constitutional provision the General Assembly. can not make a law take effect from its passage except by declaring an emergency. No emergency was declared in this act. Therefore, the act took effect ninety days after the adjournment of that session of the General Assembly, to-wit, ninety days after May 22, 1899, and'the barbers had ninety days after the act took effect to qualify. The statement in the act, that they should qualify ninety days after the “approval of this act,” as it appears in the Session Acts, or after the “approval of this chapter,” as it appears in section 5040, chapter 78, Revised Statutes 1899, must therefore be considered technical terms having a peculiar and appropriate meaning in law and must be construed according to tbeir technical import, as is required by section 4160, Revised Statutes 1899, in construing laws. That is, those words must be understood under the Constitution to mean ninety days after the act can and does constitutionally take effect in the absence of a declared emergency.

The conclusion is illuminated by reference to section 4155, Revised Statutes 1899, which declares that the words “heretofore” and “hereafter” in a statute shall be construed to have reference to the time when the statute took effect. The words “prior to the passage” in a legislative act was construed in Oharless v. Lamberson, 1 Iowa, 1. c. 443, to mean the same thing, as “heretofore,” and under the statute of that State, exactly like section 4155 of our statutes, the words “prior to the passage” and “heretofore” being synonymous, they were held to relate to the time of the taking effect of the statute and not to the time of its actual passage, for, as was said in that case, ‘ho say that section 1249 took effect from its passage, would be to violate an express provision of the organic law, as well as the code itself.”

The converse is true where the Constitution contains no such provision postponing the taking effect of the act. There “from its passage” means from and including the whole day it actually passed — not even deferred until the day of its approval by the President, if it is a Federal statute, or by the Governor, if it is a State statute. [United States v. Williams, 1 Paine’s C. C. Repts. 261; Eliot v. Cranston, 10 R. I. 88; Johnson v. Fay, 16 Gray (Mass.), 144.]

As the Act of 1899, under consideration, did not take effect until August 22, and as the relator and all others similarly situated had ninety days after that time to qualify, the direful consequences so graphically pictured by counsel are dissipated, and the law is stripped of this objection to, j.ts validity.

This leaves for decision the first objection, to-wit, that the act is a special law, and that it can only apply to cities having 50,000 inhabitants at the time it took effect and not to such as might thereafter attain that population.

What is and what is not a special law has passed into final adjudication by the many decisions in this State holding that “a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.” [Lynch v. Murphy, 119 Mo. 163; Owen v. Bauer, 154 Mo. l. c. 477, and cases cited.]

The act in question is general and prohibitive. It provides: “It shall be unlawful for any person to follow the occupation of a barber in this State, unless he shall have first obtained a certificate of registration, as provided by this act,” etc. So far it applies to every one in the State. It is exactly like the act of 1897 relating to dentists (article 3, chapter 128, section 8525, Revised Statutes 1899) ; like the doctors act, (article 1, chapter 128, sections 8507 and 8517, Revised Statutes 1899) ; like the act relating to osteopaths (article 4, chapter 128, section 8537 et seq., Revised Statutes 1899) ; and the embalmers act (chapter 103, sections 7375 and 7378, Revised Statutes 1899), And even lawyers are subject to quite as much regulation and examination (chapter 73, Revised Statutes 1899).

The act clearly, so far, is general and not special. The next provision of the act is a proviso, which is as follows: “Provided, however, that nothing in this act contained shall apply to or affect any person who is now actually engaged in such occupation, except as hereinafter provided.” The only provision is that he shall file with the secretary of the board of examiners, an affidavit setting forth his name, residence and the length of time during which and the place where he has practiced such occupation, and pay the treasurer one dollar, and thereupon he shall receive a certificate entitling him to practice such occupation for the fiscal year ending January 1, 1900; and this certificate he is entitled to have renewed every year by making application within thirty days after its expiration and by paying one dollar.

There is nothing special in the character of this provision.

Section 1 of the act, however, closes with this additional proviso: “Provided that the provisions of this law shall not apply to barbers in any city, town or village containing less than 50,000 inhabitants.” And it is asserted that because it does not cover cities that may hereafter attain a population of 50,000 inhabitants, it is obnoxious to the charge of being a special law, as defined in State ex rel. Harris v. Herrmann, 75 Mo. 310, and State ex rel. v. County Court of Jackson County, 89 Mo. 237.

In Herrmann’s case the act was held to be special because it applied only to cities of 100,000 inhabitants, and St. Louis was the only city that at that time filled this description, and only to such notaries as held commissions bearing date prior to the passage of the act.

In the Jackson county case, the act was held special because it attempted to establish reform schools for juvenile offenders “in all counties in this State,” in which there is located a city of over fifty thousand inhabitants,” and Kansas City was then the only city in the State that filled this designation, and therefore, as the act was intended to act only presently and not prospectively, it could never apply to any county except Jackson. But neither of the acts construed in those cases are like the act involved in this case. Here the act on its face, by its terms and under the machinery it provides, treats not only of the present, but deals with the future. It creates a permanent board of examiners. It permits barbers who are practicing their vocations at the date of the act to continue to do so, simply requiring them to apply for a certificate each year thereafter. It deals with barbers who were not then practicing that vocation, but who might want to do so at any time thereafter, by requiring them to be examined by the board as to their qualifications, among them that such applicants must be “possessed of sufficient knowledge concerning the common diseases of the face and skin to avoid the aggravation and spreading thereof in thfe practice of said trade.” In fact, its purpose, expressed not only in the title of the act, but all through its body, is to regulate the business and to prevent the spread of contagious diseases, and these purposes are clearly within the police power of the State and tend to promote the health of the people. In short, the act is bottomed upon the same legal principles as the acts in reference to physicians, embalmers, osteopaths and dentists, and is evidently modelled after and follows closely the lines of the Act of 1897 relating to dentists. If this act is not a valid police regulation, then all those other acts also fall. A similar act regulating the practice of dentistry was held valid in Indiana (Wilkins v. State, 113 Ind. 514), in Minnesota (State v. Vandersluis, 42 Minn. 129), and in Arkansas (Gosnell v. State, 52 Ark. 228).

The case of State v. Zeno, 81 N. W. Rep. 748, decided by the Supreme Court of Minnesota on the fifth of February, 1900, construed a statute of that State regulating barbers, that is so nearly like the Act of 1899 as to create the impression that our statute was modelled after the Minnesota law, or else that both emanated from the same mind, for in all their essential features (except the exception in favor of cities having less than 50,000 inhabitants) the two acts are the same. What is said in that case applies so well to this that I adopt the following portion of the opinion:

“The question in this case is, is it competent for the Legislature to prohibit persons from practicing the calling of a barber without first obtaining a license or certificate of registration ? Laws enacted for the purpose of regulating or throwing restrictions around a trade, calling, or occupation, in the interests of the public health and morals, are everywhere upheld and sustained. Such laws are within the police power of the State, and are universally sustained where enacted in the interests of the public welfare. The question presented in cases where the validity of such laws is called in question is no longer the power or authority of the Legislature to enact them, but whether the occupation, calling or business sought to be regulated is one involving the public health and interests. A person engaged in such an occupation is not alone interested therein. The public served by him is also interested. He is interested to the extent that it provides and furnishes him with employment and a means of livelihood. The public is interested in his competency and qualifications, and it is eminently proper that there be thrown around the calling, protection from intrusion by incompetents and others inimical to the public good. It is unnecessary to discuss the grounds upon which such laws are upheld, or the objections urged against them. Counsel for defendant ably present their side of the question, but the authorities are all against them. We cite, as pertinent to the question, State v. Medical Examining Board, 32 Minn. 327, 20 N. W. 238; State v. State Board of Medical Examiners, 34 Minn. 387, 26 N. W. 123; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; People v. Warden of City Prison, 144 N. Y. 529, 39 N. E. 686, 27 L. R. A. 718; Singer v. State, 72 Md. 464, 19 Atl. 1044, 8 L. R. A. 551; Dent v. West Virginia, 129 U. S. 121, 9 Sup. Ct. 231, 32 L. Ed. 623.

“Is the occupation of a barber a calling or trade involving to any degree the public health and public good ? If it is, the law must be sustained. We hold that it is, and that the health of the citizen, and protection from diseases spread from barber shops conducted by unclean and incompetent barbers, fully justify the law. It is a fact of which we must take notice that the people of to-day come in contact with, and engage the services of, those following the occupations of barber, as much as, if not more than, any other occupation or profession. We must take notice of the fact, too, that the interests of the public health require and demand that persons following that occupation be reasonably familiar with, and favorably inclined towards, ordinary rules of cleanliness; that diseases of the face arid skin are spread from barber shops, caused, no doubt, by uncleanliness or the incompetency of barbers. We must take notice of the fact that to attain proficiency and competency as a bárber requires training, study, and experience — training in the art, and study and experience in the management and conduct of the calling. A design and purpose to protect the public from injurious results likely to follow from such conditions is the foundation of statutes like this. And, as we must take judicial notice of the foregoing facts, the foundation for this law is apparent. And it may be said, further, that there is as much reason for a law of this kind as to barbers as there is for such a law as to dentists, pharmacists, lawyers, and plumbers. It is enacted in the interests of the public health and welfare, and we sustain it.”

This would be decisive of this case were it not for the last provision of section one of the act which limits the operation of the law to cities of this State, containing a population of more than 50,000 inhabitants, and the effect of that provision upon the law is the only .remaining question in the case.

This act is unlike the acts construed in the Herrmann case and the Jackson county case, in this, that in those cases the acts could never apply to any city except St. Louis (or to any notary unless his commission was dated prior to the act) or to Jackson county, respectively, while this act would apply to St. Louis, Nansas City and St. Joseph, at any rate, even if it be construed that the words “containing 50,000 inhabitants,” mean having that population at the date of the passage of the act, and hence the act is not local, or if these words be construed to mean containing such a population at the time an offense is charged to have been committed, the act is clearly not local or special.

The act does not expressly limit its operation to cities that “now” contain, or that contained at the date of the passage of the act, such a population. The language is “that the provisions of this law shall not apply to barbers in any city, town or village containing less than 50,000 inhabitants.”

The whole law must be construed together. [State ex rel. v. Marion Co. Ct., 128 Mo. 427; State ex rel. v. Slover, 126 Mo. 652.] The intention of the Legislature must be ascertained and enforced if legal. [State v. Sibley, 131 Mo. 519.] The act- must be construed as having a prospective operation unless the contrary intent is plainly manifest. [State ex rel. v. Wofford, 121 Mo. 69.] So interpreted it is plain that it was the intention of the lawmakers, when using the word “containing,” to cover not only the present conditions, but the future conditions also. Not only those cities that now have that population, but also such as may have such a population at any time hereafter. The whole scheme of the act is to protect the health of the people in large cities. The Legislature must be presumed to have known that there is more disease where large numbers of people are congregated, and more probability of the spread of disease in large and closely settled cities, than there is in the country or in a small town. History shows that there is greater need of stringent police regulations of all kinds in large than in small cities. It is not unreasonable to believe that the wisdom and experience of the lawmakers may have taught them the greater necessity for regulations to prevent the spread of contagious diseases through barber shops in large cities, than exists for -such regulations in smaller places. The line must be drawn somewhere. Here it was drawn at cities containing 50,000 people. The same reason which would apply such regulations to cities that now contain 50,000 people would make it necessary to apply them to a city that one, five or ten years hereafter attains that population. The act by its terms is continuing, and intended to be a permanent regulation. It applies now to the three large cities of the State and hence is not within the rules of condemnation laid down in the cases relied on. In a few years, if reasonable expectations are fulfilled, it will apply to Springfield, Hannibal, Sedalia, Joplin, Carthage and Jefferson City. The act is susceptible of such a construction, and it is our duty to place that construction upon it, if by so doing we do not violate the commands of the organic law or settled rules of construction. That it is so susceptible is not only shown by what is here pointed out, but is also clearly apparent from what is so conclusively said in St. Louis v. Dorr, 145 Mo. 1. c. 493, et seq., showing that even the adverb “now” as applied to the number of inhabitants of a city to which an act is made applicable, does not necessarily mean at the present time. In this act there is no adverb of time used qualifying the verb “containing.”

An act that relates to all cities containing 50,000 inhabitants is a proper classification of natural or artificial persons or subjects, and different regulations for people congregated in such large bodies from those governing people or smaller aggregation, are not illegal or unconstitutional under the Federal or State Constitutions. [Missouri v. Lewis (Bowman’s case), 101 U. S. 22.]

The conclusion is irresistible that the act in question is a general law which will continue in force until repealed and apply to all cities that now or hereafter contain 50,000 inhabitants, and therefore it is hot a special or local law.

In my judgment the right of the petitioner to raise the question by habeas corpus is settled by the cases of Ex parte Smith, 135 Mo. 223, and Ex parte Neet, 157 Mo. 527.

It follows that the defendant is detained, for trial for an offense against a valid law and therefore he is not entitled to be discharged from custody under this writ, but must be remanded to the custody of the marshal of Jackson county.

Burgess, G. J., and Sherwood, J., concur; Gantt, J., in all except the approval of dissenting opinion in Dorr case; Bobmson, Brace and Valttant, JJ., concur in remanding prisoner for reasons given in separate opinion of Valttant, J.