Moler v. Whisman

147 S.W. 985, 243 Mo. 571, 1912 Mo. LEXIS 380
CourtSupreme Court of Missouri
DecidedJune 1, 1912
StatusPublished
Cited by24 cases

This text of 147 S.W. 985 (Moler v. Whisman) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moler v. Whisman, 147 S.W. 985, 243 Mo. 571, 1912 Mo. LEXIS 380 (Mo. 1912).

Opinion

BROWN, J.

Bill in equity in the circuit court of Jackson county to restrain the revocation of a barber’s license. From a judgment for defendants, plaintiff appeals.

The plaintiff is proprietor of a barber college in Kansas City, Missouri, and has in his employ as manager and instructor, one P. R. Hackney, a registered barber.

The defendants compose the State Board of Barber Examiners, and are threatening to revoke the license of plaintiff’s said instructor, Hackney, for the alleged reason that he has displayed on plaintiff’s said barber college, the sign, “Free Shaving and Hair-Cutting;” that he has collected and permitted the students under his control to collect money for their services in the practice of the trade therein taught; and that he grauduates students after a course of study of less than two years; all contrary to the provisions of section 1187, Revised Statutes 1909.

The evidence shows that plaintiff’s barber college is equipped with forty-six chairs and other paraphernalia necessary for conducting a barber shop and teaching the barber’s trade; that his instructor Hack[577]*577ney has caused to be displayed on said college the said sign, “Free Shaving and Hair-cutting;” that when students begin work in said college, they charge nothing for their services, but after a few weeks instruction they are permitted to charge for their services; and that the amount they receive is paid one-half to the plaintiff and one-half to the student performing the service. It is also proven that the plaintiff graduates his students after a course of study of less than two years.

The evidence also shows that the barber’s trade can only be taught by having the students shave and cut the hair of other persons under the supervision of an instructor; that plaintiff through his students furnishes free shaves to • about 1500 persons per week.

No evidence was introduced by either side to prove the length of time required to properly teach the barber’s trade; nor was any proof offered to show the danger of spreading infectious or contagious disease by the operation of public barber shops.

Plaintiff does not deny the acts charged against him by defendants, but contends that the judgment ought to be reversed and a decree entered for him because chapter 13, Revised Statutes 1909, entitled “Barbers,” is in conflict with the following provisions of the Constitution of Missouri:

Section 4 of article 2 of the Constitution of the State of Missouri, as follows: “That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government, and that when government does not confer this security, it ■fails of its chief design.”

Section 30 of article 2, as follows: “That no [578]*578person shall be deprived of life, liberty or property without due process of law.”

Section 1 of article 4, as follows: “The legislative power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives, to be styled, ‘The General Assembly of the State Missouri.’ ”

Section 53 of article 4, as follows: “The General Assembly shall not pass any local or special laws . . . . granting* to any corporation, association or individual any special or exclusive rights, privilege or immunity. ’ ’

Section 28 of article 4, as follows: “No bill . . . shall contain more than one subject which shall be clearly expressed in its title.”

That it is also in conflict with section 1, of the Fourteenth Amendment of the Constitution of the United States, as follows: “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.”

OPINION.

I. No intention to suppress the operation of public barber shops having been expressed in the title to the bill under which chapter 13¡, Revised Statutes 1909, was enacted, it will not be assumed that the General Assembly deemed the continued operation of such shops so dangerous to the public health that it desired to terminate that avocation with the present generation and make it necessary for our male posterity to shave themselves or allow their hair and whiskers to grow without let or hindrance from tonsorial artists; yet so complete is the power of the Legislature to prescribe regulations affecting the public health [579]*579that we would hesitate to say it could not entirely suppress any occupation which is in fact wholly inimical to the public health.

Courts take judicial notice of those things which are common knowledge to the majority of mankind. [Hobbs v. Railroad, 113 Mo. App. 133; Greenleaf on Evidence (14 Ed.), sec. 6; Grimes v. Eddy, 126 Mo. 168.] But we do not judicially know how much time would be required to teach the average student to satisfactorily perform all the work required of a public barber in such a manner as to prevent the spread of disease. The courts take judicial notice that some diseases are spread by diseased persons coming in contact with those who are shealthy; and that barbers on account of their very close contact with their customers, may contract diseases or allow their tools or soaps to become contaminated by the virus or germs of diseases, and thereby communicate such diseases to their patrons; therefore, a prima facie presumption arises that barbers should be able to determine whether or not those who apply to them for shaves are afflicted with contagious or infectious diseases, particularly diseases of the skin. We have already determined that public barber shops are a proper subject of legislative control. [Ex parte Lucas, 160 Mo. 218.] Therefore, as the Legislature was proceeding within its proper sphere in enacting chapter 13, supra, we hold that its action in fixing the course in barber colleges at two years is not unconstitutional.

The State cannot convert to its own use the property or labor of a citizen without compensation, under the pretext of preventing the spread of disease; but because a law designed to protect public health requires a student to work two years before becoming a public barber, it does not for that reason violate section 4 of article 2 of the Constitution of Missouri guaranteeing to all persons the enjoyment of the gains of their own industry; nor does it conflict [580]*580with section 30, article 2, of said Constitution; nor with section 1 of the Fourteenth Amendment of the Federal Constitution prohibiting the taking of property without due process of law. [St. Louis v. Liessing, 190 Mo. 464.]

“The general right to engage person or property in any trade, profession or business is subject to the power inherent in the State to make all rules and regulations respecting the use and enjoyment of property rights necessary for the preservation of the public health, morals, comfort, order and safety; and such regulations do not deprive owners of property without due process of law.” [8 Cyc. 1110.]

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Bluebook (online)
147 S.W. 985, 243 Mo. 571, 1912 Mo. LEXIS 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moler-v-whisman-mo-1912.