Board of Barber Examiners v. Parker , 190 La. 214 ( 1938 )

The only question in these cases is whether a statute authorizing a public board to fix the minimum fees that a barber may charge for his services really tends to protect the public health. It is not disputed that the barbers' trade is one which may endanger the public health, and which is therefore subject to regulation by the Legislature. But I do not see how an act of the Legislature prescribing the minimum fees, — or delegating to a public board the authority to prescribe the minimum fees, — that a barber may charge for his services can protect, or have a tendency to protect, the public health. The only appropriate way in which the Legislature can protect the public health, or promote the public welfare, in that respect, is to establish sanitary requirements and regulations, to maintain cleanliness in the barber shops, and to guard against unhealthy barbers, to prescribe qualifications and standards of efficiency, and to enforce them by means of examinations, or by requiring terms of apprenticeship. If a barber complies with all of the requirements of efficiency, and all of the sanitary regulations, as laid down by the Board of Health or by the Board of Barber Examiners, it cannot possibly endanger the public health or the public welfare for the barber doing business in a sparsely populated locality, — or depending upon a poor class of patrons, — to charge lower rates for his services than the proprietors of the de luxe barber shops, in the big hotels or in the rich business centres, charge for the services rendered there. The proprietors of the barber shops in the large hotels, or in the big business centres, pay more rent, have more costly equipment, and are under heavier overhead expense, than the barbers who do business in the sparsely populated communities, or whose patrons have to consider the matter of economy. A statute that forbids a distinction in that respect tends to do injustice, — not only by depriving the barbers in the poor communities of their livelihood, but also by depriving the poor communities of the services of a barber.

By the 12th section of Act No. 48 of 1936, the Board of Barber Examiners is authorized, on the request of any organized group of seventy-five per cent or more of the barbers in any judicial district in the state, to fix the minimum prices that a barber in that judicial district may charge for his services. In the 8th section of the act, it is made a misdemeanor for a barber to violate such an order of the Board of Barber Examiners, by charging any customer less than the price fixed by the board, for a haircut, shave, massage, shampoo, or other such service. The penalty which the statute imposes upon a barber who charges less for his services than the minimum rate fixed by the Board of Barber Examiners is a fine not less than $25 or more than $300, or imprisonment for a term not exceeding six months, or both the fine and imprisonment, in the discretion of the judge. The statute declares also that each and every day during which a barber violates such an order shall be a separate violation. In addition to this penalty, the statute authorizes the board to proceed by injunction against the barber accused of violating an order of the board; and the board is authorized to revoke the barber's license if the board, after hearing the complaint, is satisfied that the accused barber has violated an order of the board.

In one of the cases before us the Board of Barber Examiners fixed the minimum price for a shave at 15¢ and the minimum price for a haircut at 35¢, in the judicial district comprising only the Parish of Orleans. The defendant, August Guchereau, violated the order of the board by charging less than the prescribed fees for his services, and he was prosecuted for the offense. He was convicted and sentenced to pay a fine of $301.00, or to be confined in the parish prison for seven months. He is appealing from the conviction and sentence.

In the other case before us, the board fixed the minimum prices at 40¢ for a haircut and 25¢ for a shave, throughout the Third Judicial District, which is composed of the parishes of Lincoln and Union, and embraces the cities of Ruston and Farmerville. The district measures forty miles each way, and has 43,553 inhabitants. The defendant, Noah E. Parker, having a barber shop in Bernice, in Union Parish, violated the order of the Board of Barber Examiners, by charging less than 40¢ for a haircut and less than 25¢ for a shave. His offense was reported to the Board of Barber Examiners, and, after a hearing, the board suspended his license for six months, and ordered him to cease doing business; after which the board proceeded against him by injunction. He was also prosecuted criminally for violating the order of the board. In the injunction suit the judge decided that the statute was unconstitutional; hence the judge dismissed the suit of the Board of Barber Examiners. The board is appealing from the decision. The criminal prosecution is pending yet in the district court, awaiting the outcome of this appeal.

It is admitted in each of these cases that the defendant is a regularly licensed and duly qualified barber, under the laws of the state and under the rules and regulations of the Board of Barber Examiners. It is not contended in either of the cases that the defendant's barber shop or the method of conducting his business was unsanitary, or that he was not living up to the requirements of the law and of the board in every respect, except in respect of the prices which he charged for his services.

The minimum prices fixed by the board for the barbers in the city of New Orleans, — 35¢ for a haircut and 15¢ for a shave, — seem low enough for any locality in the city limits. But it is not so certain that the minimum rates fixed by the board for the barbers in the Third Judicial District, — 40¢ for a haircut and 25¢ for a shave, — are low enough for the rural sections in that vast district. The only reason for this discrimination between the New Orleans District and the Third Judicial District, as I understand, is that the voice of a majority of 75 per cent or more of the barbers in each district prevailed. The hardship — and unjust discrimination — that results from such legislation as this, is in compelling the barbers in the sparsely populated outskirts of a city, or in the poorer localities in the city, to charge as high a price for a haircut or a shave as the barbers can charge successfully in the de luxe shops, in the big hotels and in the big business centres of the city. There is hardship and unjust discrimination also in compelling the barbers in the sparsely populated rural sections of a judicial district to charge the same price for a haircut or a shave that the barbers in the large towns and cities in the judicial district can charge successfully for their services. So long as a barber in a sparsely populated rural district, or in the outskirts of a large city, or in any neighborhood of poor people, complies with all of the sanitary rules and regulations laid down by the Board of Health or by the Board of Barber Examiners, there is no good reason why he should be compelled to close his shop and go out of business, — and perhaps be fined and sent to jail, — merely because his customers are unable or unwilling to pay the same price for a haircut or a shave that the barbers in the big hotels and business centres in a city may charge successfully for their services.

The evidence in this case shows that, if the defendant, Noah E. Parker, is forbidden to charge his customers less than 40¢ for a haircut or less than 25¢ for a shave, he must go out of business. That is an interference with his liberty and freedom, and with the liberty and freedom of his patrons, to enter into contracts which do not concern anybody but themselves. We must bear in mind that personal liberty ends only where the rights of others begin. The "liberty" referred to in the Fourteenth Amendment of the Constitution of the United States does not mean merely the right of a citizen to be at liberty in the sense of being not imprisoned. It means the right of a citizen to be free in the enjoyment of his faculties, to be at liberty to use them in any lawful way, and to earn his livelihood by any lawful calling or occupation. It was so said by the Supreme Court of the United States in the case of Allgeyer v. State of Louisiana,165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832. In that case the Supreme Court of the United States said that to deprive a person of his right to pursue his chosen calling, deprived him of his liberty, and that to prevent him from continuing in a lawful business or pursuit, in which he was already engaged, deprived him of his property, in the meaning of the Fourteenth Amendment, U.S.C.A.Const. Amend. 14. On that subject see Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, 3 Ann.Cas. 1133.

I do not consider the decision rendered by the Supreme Court of the United States in the case of Nebbia v. New York, which is quoted so abundantly in the prevailing opinion in this case, as being appropriate to this case. In the Nebbia Case the court held that a New York statute fixing the retail price of milk was not violative of the Fourteenth Amendment. But the reason for the decision was said to be that the price-cutting by the competitors in the milk business was producing waste, harmful to the public, was threatening ultimately to cut off the supply of milk, and to destroy the industry itself, and thus to affect most disastrously the public welfare. There is nothing like that in this case. The profuse protestations on that subject, in the preamble or first section of this statute, — which is quoted at length in the prevailing opinion in this case, — demonstrate to my mind that the author of the statute realized how hard it would be to convince the courts that the real purpose of the statute was to protect the public health or promote the general welfare. And so I say, with great respect, that the preamble, or first section, of this statute, "doth protest too much, methinks." The courts are not bound by an announcement made by the Legislature, of the necessity or the purpose or effect of a statute that is enacted ostensibly to protect the public health, or to promote the public welfare in any particular respect. On the contrary, in the prevailing opinion in this case, a Justice of the Supreme Court of the United States is quoted as authority for the proposition that the courts must consider the question of wisdom of a statute that is enacted ostensibly to protect the public health or to promote the public welfare in any particular, because the courts must inquire into and decide the question whether the means adopted by the Legislature is really appropriate to the avowed purpose to be accomplished by the statute.

In the case of the City of Alexandria v. Hall, 171 La. 595,131 So. 722, an ordinance which required all barber shops to be closed not later than 6:30 p.m. except on Saturdays and on days preceding legal holidays, was declared unconstitutional, as an unwarranted interference with personal liberty, — notwithstanding the avowed purpose of the ordinance was to protect the public health, — and notwithstanding the city introduced medical expert testimony to prove that long working-hours caused barbers to become run-down in health, and susceptible to communicable diseases. In deciding the case, the court cited similar decisions rendered in other jurisdictions, viz.: Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, 32 L.R.A. 664; Chaires v. City of Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A.L.R. 230; State v. City of Laramie, 40 Wyo. 74, 275 P. 106. To this list of decisions are added now the following which are directly in point, viz.: State ex rel. Fulton v. Ives et al., 123 Fla. 401, 167 So. 394, decided in 1936; Duncan v. City of Des Moines, 222 Iowa, 218, 268 N.W. 547, decided in 1936; and City of Mobile v. Rouse, 233 Ala. 622, 173 So. 266, 111 A.L.R. 349, decided in 1937.

The case of Townsend v. Yeomans, 301 U.S. 441, 57 S.Ct. 842, 81 L.Ed. 1210, cited in the prevailing opinion in this case, was decided on a principle that is not at all applicable to this case. The statute of Georgia, which was upheld in that case, fixed the maximum rates which the public warehousemen might charge for handling tobacco. Whether the Legislature may fix the maximum rates which the barbers may charge for their services is a question that is not presented in this case.

I am not lacking in sympathy or consideration for the barbers in these hard times. I patronize one or another of the high-class barber shops every day, except Sundays. I never use a safety razor. But I cannot reconcile my mind to the proposition that a barber should be fined, or sent to jail, or suffer a forfeiture of his livelihood, for no other offense than that of charging less for his services than seventy-five per cent or more of the barbers in his judicial district think he ought to charge.