Pearce v. Moffatt

92 P.2d 146, 60 Idaho 370, 1939 Ida. LEXIS 47

• Court: Idaho Supreme Court
• Decided: June 17, 1939
• Docket: No. 6664.
• Status: Published

Opinions

AILSHIE, C. J. —

Injunction was sought by respondents to restrain and enjoin appellant from prosecuting them for violating sec. 53-704, I. C. A., which provides:

“It shall be unlawful for any person or persons in the state to keep open for business or to work at the barber’s trade in any city of the first or second class after the hour of seven o’clock P. M. on any working day: provided, however, that on Saturday and the day preceding each legal holiday said barber shops may be kept open for business until ten o’clock P. M.’’

By the same action it was sought to enjoin any prosecution under sec. 9 of Ordinance No. 1704 of Boise City, which provides as follows:

“Sec. 9. It shall be unlawful for any person or persons, firm, or corporation, to operate, maintain, or conduct any barber shop or place wherein barbering is done, in Boise City, Idaho, to be open for the purpose of business of barbering for revenue, pay, free or otherwise, before eight o’clock A. M. and after six o’clock P. M. on the following days, to-wit: Monday, Tuesday, Wednesday, Thursday, and Friday of each week; on Saturday of each week, said shops or places shall not be open before eight o’clock A. M. or after seven o’clock P. M.

“All barber shops shall remain closed on Sunday and the following holidays, to-wit: New Year’s Day, Decoration Day, Fourth of July, Labor Day, Armistice Day, Thanksgiving Day, and Christmas, and when said holidays or any of them fall on Sundays, then the following Monday shall be observed. ’ ’

The trial court entered judgment for the plaintiffs and issued a perpetual injunction against the prosecution of respondents under either the foregoing statute or the ordinance. This appeal is from the judgment; and the sole question here is whether the statute and ordinance are, or either of them is, unconstitutional.

Upon the oral argument it was stipulated that Kenneth O’Leary should be bound by any decision rendered herein, because of his election as the successor of appellant Moffatt, to the office of prosecuting attorney of Ada county.

There is no longer any difference of opinion among courts as to the power of the legislature over the subjects, business and practices involving the public health, safety, morals and welfare. The statute here involved (sec. 53-704, which is a part of chapter 7 of Title 53), is clearly intended as a legislative exercise of the police power of the state. Section 1 of this chapter declares the legislation therein proposed by the act is, ‘ ‘ In the interest of the public health and to prevent the spread of contagious and infectious diseases.” Chapter 6 of the same title provides for the registration, examination and licensing of barbers, defines who are barbers, and requires a license for the practice of “barbering” (sec. 53-602). In order to obtain a license for barbering, the applicant must show that he is a graduate of an eighth grade grammar school or its equivalent; and he must have passed a satisfactory examination in a barber school or college or before the department of law enforcement showing a satisfactory knowledge of the

‘ ‘ Scientific fundamentals for barbering; hygiene; bacteriology; histology of the hair, skin, nails, muscles and nerves; structure of the head, face and neck; elementary chemistry relating to sterilization and antiseptics; diseases of the skin, hair, glands and nails; massaging and manipulating the muscles of the upper body; hair cutting; shaving; and arranging, dressing, coloring, bleaching and tinting of the hair.” (See, also, sec. 53-606.)

The legislature designates the trade or occupation as the “art or science of barbering” (sec. 53-607). Now, in the light of this act and its requirements, it is at once apparent that the right to practice the “art or science of barbering” is a privilege granted by the legislature to those who bring themselves within the terms of the act; and that the people who patronize them have a right to expect and feel assured that the barber holding himself out as such has complied with the requirements of the law and will observe all its sanitary, health and police provisions.

Now after the barber has complied with all those provisions and opened a place for the practice of his “art or science,” why may not the legislature, in the further pursuance of its desire and discretion to protect the health and general welfare of the people who may patronize this scientific artist, say to him:

“You are going to have all kinds, classes and ages of people in your shop. Some may be carrying highly contagious diseases. Some may be infected with dangerous bacteria; you will be employed to practice your art on persons in ill health; and at the same time you will not know of this danger to both you and your patrons except as you may discover it from ocular observation. Such persons will not only endanger your health but the health and safety of your other patrons; and in the long run, affect the health, happiness, and welfare of their families.

“We are therefore going to require you to close your shop at a certain hour every successive 24 hours and you and any employees you may have working in your shop may at the same time have rest and recreation, and your shop may be inspected and be given any necessary sanitary treatment. And we are going to make the same requirement of all persons practicing your art. ’ ’

I cannot see any sound reason why the legislature, speaking for the people of the state, may not say as much and write it into a statute. That becomes a condition on which the state issues to this artist his tonsorial license and turns him out to practice his sanitary and soothing art on the public. This “art or science” when properly conducted, under modern skill and regulations, is a most desirable, healthful and necessary service and deserves the high respect and commendation which it has been accorded by the legislature of this state, as evidenced by the wholesome and minute provisions of both chapter 6, dealing with registration, examinations and licensing of barbers (secs. 53-601 to 53-625) and chapter 7, dealing with “Barber Shop Inspection and Closing Hours” (secs. 53-701 to 53-705).

Furthermore, it is not at all improbable that in the passage of this act the legislature had in mind the public morals, peace and quiet, along with the public health and safety. I am unable to discover anything in the act before us which in principle is out of harmony with an unbroken line of decisions from this court, as well as the highest court of the land, sustaining the constitutionality of similar legislation predicated bn like and similar grounds to those above suggested; nor do I see where there is just cause for holding that the regulations prescribed by the act “arbitrarily interfere with private business.” I think the legislation embodied in this barbering act is sustained by Mullen & Co. v. Moseley, 13 Ida. 457, 90 Pac. 986, 121 Am. St. 277, 13 Ann. Cas. 450, 12 L. R. A., N. S., 394; State v, Dolan, 13 Ida. 693, 92 Pac. 995, 14 L. R. A., N. S., 1259; Chambers v. McCollum, 47 Ida. 74, 272 Pac. 707; State v. Cranston, 59 Ida. 561, 85 Pac. (2d) 682; In re Hinkle, 33 Ida. 605, 196 Pac. 1035; and likewise by West Coast Hotel Co. v. Parrish, 300 U. S. 379, 57 Sup. Ct. 578, 81 L. ed. 703, 108 A. L. R. 1330; Nebbia v. New York, 291 U. S. 502, 503, 54 Sup. Ct. 505, 78 L. ed. 940, 89 A. L. R. 1469; Falco v. Atlantic City, 99 N. J. L. 19, 122 Atl. 610; Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N. E. 187, 189; Feldman v. Cincinnati, 20 Fed. Supp. 531.

The suggestion urged that this statute is discriminatory because it has not been extended to beauty parlors is successfully answered by the fact that those places are given a separate classification and are fully covered and dealt with by the cosmeticians statute (secs. 53-1,201 to 53-1226). It will be seen that the statute provides for the registration and licensing of cosmeticians and goes into great detail as to their requirements as to education, training and qualifications. There seems little room for doubt but that there is a clear line of demarcation between what is referred to in the statute under consideration as a barber shop, and the business of operating a beauty parlor as contemplated by the cosmeticians statutes. (McDermott v. City of Seattle, 4 Fed. Supp. 855.)

It is argued that, “A barber’s working hours can be effectually regulated, without closing the shop in which he works, by an ordinance specifically designating his hours of work. To close the shop, therefore, in order to prevent overwork by barbers therein, unnecessarily interferes with its operation, and is unreasonable.” (Knight v. Johns, 161 Miss. 519, 137 So. 509.) The fallacy of this seems to lie in the holding that the ordinance might properly regulate the hours of work and still may not require the place where the work is done closed for any period of time. If the working hours may be prescribed, then there certainly can be no valid, constitutional objection to closing the shop at the conclusions of working hours.

The owner’s property right in the building can certainly be no more valuable nor sacred under the constitution than his right to labor. In other words, the property right of a man to work and to reap the earnings of his labor is equally as sacred under the constitution as the property right of the man who owns the building in which the laborer works. Municipal ordinances and legislation regulating the hours of work have been almost uniformly recognized in the decisions of the courts ever since the decision of the Supreme Court of the United States in Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. ed. 923, and Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. ed. 1145. In the latter ease Mr. Justice Field, speaking for the Supreme Court of the United States, said:

“However broad the right of every one to follow such calling and employ his time as he may judge most conducive to his interests, it must be exercised subject to such general rules as are adopted by society for the common welfare. All sorts of restrictions are imposed upon the actions of men, notwithstanding the liberty which is guaranteed to each. It is liberty regulated by just and impartial laws. Parties, for example, are free to make any contracts they choose for a lawful purpose, but society says what contracts shall be in writing and what may be verbally made, and on what days they may be executed, and how long they may be enforced if their terms are not complied with. So, too, with the hours of labor. On few subjects has there been more regulation. How many hours shall constitute a day’s work in the absence of contract, at what time shops in our cities shall close at night, are constant subjects of legislation.”

The contention, that the hours of work may be limited but the place of work cannot be closed, may be sound policy and political argument to urge upon a legislature in a state where there are large cities and a great diversity of occupations, and varied amusements for the idle, and those who remain up of nights and sleep in the daytime; and where a considerable portion of the population are up and about at all hours of the night, and no doubt need the attention of a barber, and sometimes perhaps a nurse and a doctor before morning. Fortunately that condition does not prevail in Idaho and such argument would probably have very little influence on an Idaho legislature. Here, perhaps, the majority shave themselves and the others find plenty of time to get a shave and hair cut before 7 o’clock in the evening. No doubt when Boise or any other of our urban communities grows to the proportions of a New York, Chicago, or even San Francisco, the members of the legislature, who, by the way, are not as dumb as some people would have us believe, will in their discretion amend the law and allow these artists possibly to remain open all night and run in shifts; but that eventful day has not yet come upon us.

Furthermore, we cannot close our eyes to what everyone else knows, namely, that those who run barber shops are in competition with each other for business just as other business concerns, and in order that each may establish a trade and retain his customers, each is entitled to the assurance that the other will close his business at a fixed time. Such a requirement not only provides for the rest and recreation of the employees, and cleaning and inspecting the shop, but it also serves the general welfare in regulating the time of conducting the business. (State v. Dolan, 13 Ida. 693, 715, 92 Pac. 995, 14 L. R. A., N. S., 1259.) A very interesting discussion of both sides of this question is to be found in Patton v. City of Bellingham, 179 Wash. 566, 38 Pac. (2d) 364, 98 A. L. R. 1076.

We are not advised as to just what particular reasons prompted the legislature to enact this statute except as recited in the act itself; and we cannot forget that the law makers had a right to act upon any constitutional reason within the realm of the public health, morals, safety, or general welfare in the passage of this act. Among the many reasons that have been suggested for such legislation, there is one that requires no speculation in this state but has found its way into the records of this court, and that is: Some of the less scrupulous and cautious members of those engaged in the barbering business have allowed their places to be used as meeting places, where back rooms have been turned into rendezvous for illicit use of intoxicants and immoral conduct. (See State v. Parris, 55 Ida. 506, 44 Pac. (2d) 1118; State v. Paris, 58 Ida. 315, 72 Pac. (2d) 865.) The closing of such shops at nighttime is distinctly within the police power of the legislature; and it often happens that in order to regulate the business and conduct of those who would violate the customs of right and decency, it becomes necessary to extend the same rule to all and thus include those who need no restraints.

We should not conclude this opinion without calling attention to the fact that this statute (sec. 53-704) has been on the book for 20 years, and during all that time no amendment or change has been made by the legislature. It is also urged that the statute (sec. 53-704), is void because it does not fix any hour for opening shops; it only fixes the hour (7 P. M.) for closing the shop and quitting work for that day. We do not think this is a valid objection, for the reason that the statute forbids keeping “open for business or to work at the barber’s trade .... after the hour of seven o’clock P. M. on any working day.” That would clearly prevent opening of the shop before midnight. As hereinbefore mentioned, the conditions of society and extent of our population are such that there is no likelihood or probability of one, who had to close his shop at 7 P. M., and keep it closed until midnight, having occasion to reopen it again until we denizens awake in the morning.

I find nb valid reason for holding the legislative act or the ordinance unconstitutional. A majority of my associates, however, entertain a diffei’ent view as to the legislative act, sec. 53-704, and hold it unconstitutional.

The judgment is therefore affirmed in so far as it enjoins prosecutions under sec. 53-704, I. C. A., and reversed in so far as it enjoins prosecutions under Ordinance No. 1704 of the City of Boise. No costs awarded.

Holden, J., concurs in holding both the statute and the ordinance valid.