Hoff v. State

197 A. 75, 39 Del. 134, 9 W.W. Harr. 134, 1938 Del. LEXIS 13
CourtSuperior Court of Delaware
DecidedJanuary 31, 1938
StatusPublished
Cited by27 cases

This text of 197 A. 75 (Hoff v. State) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoff v. State, 197 A. 75, 39 Del. 134, 9 W.W. Harr. 134, 1938 Del. LEXIS 13 (Del. Ct. App. 1938).

Opinion

Layton, C. J.,

delivering the opinion of the court:

The title of the act reasonably discloses its nature and purpose. Fairly considered, it includes but one subject. See State v. Grier, 4 Boyce 322, 88 A. 579, and In re Cypress Farms Ditch, 7 W. W. Harr. (37 Del.) 71, 180 A. 536, [140]*140where some of the decisions in this State on the question are collected.

The substantial questions to be determined are whether the act delegates legislative power to the Board of Examiners; and whether the act is a reasonable exercise of the police power of the State as applied to the particular trade or occupation.

The subject-matter of the act is concerned with female beauty or loveliness. Beauty culture, speaking generally, is the means employed to improve personal appearance. It embraces the care of the skin, the hair, the hands and nails, the teeth and body, to miake them conform to the artificial standard currently regarded as beautiful. The means employed to accomplish the desired end may include diet, exercise, hygiene, electricity, X-ray, radium, gland stimulation ¡and gland extracts, water cures, sun-treatments, plastic surgery and even mental science. More generally, use is made of lotions, creams, salves, ointments, rouge, mascara, mud or clay applications on the face and body, either singly or in combination with massage, stroking or stimulation either by hand or mechanical appliances, the removal of superfluous hair, plucking of eyebrows, tinting of finger nails and even toe nails, and artificial sunburn; and the cleansing, arranging, dressing, curling, waving, singeing, bleaching and dyeing the hair. The field is wide, the methods and means multifarious.

Cosmetics, rouges, and hair dressing, and other artificial means supposed to improve the personal appearance of women, from earliest times have played a part in civilized and uncivilized society. The savage idea of beauty is expressed in one way, the civilized conception in another. In some respects they are not far apart. From time immemorial persons have been engaged in the art or science of what is now called beauty culture, and until recently the [141]*141trade or occupation has been regarded as one enjoyable as of common right; like barbering, a closely allied occupation, it is increasingly being subjected to regulation as an occupation affected with a public interest.

The defendant contends that the act delegates legislative power to the Board of Examiners.

It is well settled that a Legislature, in enacting a law, complete in itself, for the regulation of particular matters, may expressly authorize an administrative body, within definite limits, to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose. The power of delegation is based upon the necessity occasioned by the growing demands made upon legislative bodies by the ever increasing complexity of human affairs. It is conceded that it is difficult to mark the line which separates the legislative power to make laws from administrative authority to make regulations; and in the classic language of Judge Ranney, in Cincinnati, W. & Z, Ry. Co. v. Clinton County Com’rs, 1 Ohio St. 77, 88, the true distinction is between the delegation of power to make the law, which necessarily involes a discretion as to what it shall be, and conferring authority and discretion as to its execution, to be exercised in pursuance of the law.

The Legislature must declare the policy of the law, and must establish some principle or rule of action which is to control in given cases. In other words the Legislature must provide an adequate yardstick for the guidance of the administrative body empowered to execute the law; for, to uphold a delegation of power there must be discovered in the terms of the Act a standard reasonably clear whereby discretion must be governed. In the striking phrase of Justice Cardozo, in Panama Refining Co. v. Ryan, 293 U. S. 388, 440, 55 S. Ct. 241, 256, 79 L. Ed. 446, the discretion must be “canalized within banks that keep it from overflow[142]*142ing.” See State v. Retowski, 6 W. W. Harr. (36 Del.) 330, 175 A. 325; Blackstone’s Appeal, 8 W. W. Harr. (38 Del.) 230, 190 A. 597.

The declared policy of the law is to restrict the practicing and teaching of beauty culture to those who possess knowledge and proficiency. Apart from the exemptive provisions of Sections 6 and 8, there are two ways by which one may qualify for permission to take an examination for an operator’s certificate; one by showing registration as a student and training in a “duly registered beauty school”; the other, by showing registration and service as an apprentice for at least two years.

The act nowhere defines the term, “beauty school.” It makes no mention of the subjects and matters as to which knowledge and proficiency are required; and it is silent as to system, course, scope or length of instruction and training in such school. Graduation is not required, nor even a minimum length of attendance demanded. The law contents itself with the vague and indefinite phrase, “and has had training in a beauty school duly registered by the Board.”

It must be supposed, therefore, that a “duly registered beauty school” is one that the Board of Examiners see fit to register, regardless of system or course of instruction.

In the act are such terms and phrases as, “education,” “preliminary education,” and “studies necessary to become an operator.” Whether “education” and “preliminary education” are meant to refer to education in general of education in the occupation, is left in doubt; but it will be assumed that they refer to the latter, as, undoubtedly, does the phrase “studies necessary to become an operator.” However used, the act neither defines nor explains them, nor does it enumerate the studies.

[143]*143The result is that the act fails to furnish a standerd by which the discretion of the Board must be governed, either by definition or explanation of terms, or by an enumeration of subjects and matters as to which knowledge and proficiency is deemed indispensible.

It is answered that the definition of beauty culture supplies the standard; that it is not to be supposed that the Board will act unreasonably; and that, if it does, the act affords a corrective by providing the right of appeal to the courts. The constiutionality of the grant of power must, of course, be determined by the language of the grant, and not by the manner in which the power may be exercised. But, the particular vice of the argument is that the definition of the term, beauty culture, is no definition at all. The derivation of the word, “define,” suggests its meaning, which is, to “limit.” To define, is to express with precision the essential constituents of a term, whereby to furnish an adequate explanation of its significance. When examined, the statutory definition amounts to this: Beauty culture is all work generally and usually performed for pay in hairdressing and beauty shops by beauticians for the beautification of women. It is an attempt to define a term by making use of the term itself. The result is a circular progression with no advancement in clearness and certainty of idea.

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Bluebook (online)
197 A. 75, 39 Del. 134, 9 W.W. Harr. 134, 1938 Del. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoff-v-state-delsuperct-1938.