State, Ex Rel. v. Ives , 123 Fla. 401 ( 1936 )

If the general question of the power of the Legislature to regulate prices is to be settled once and for all by the decision in this case, it be hard to overestimate the importance of the question presented. But I think the question here presented is much narrower in its scope than the question discussed in the able opinions of Mr. Presiding Justice ELLIS and Mr. Justice BUFORD.

Section 12 of Chapter 16799 shows that the regulatory board set up in the Act is required to fix minimum prices "generally throughout the State of Florida or in any county thereof." This section also provides that, "The board shall have authority to fix a minimum price of a barber's work in each county in the State of Florida, or may in its discretion fix a uniform minimum price for barber work to run throughout the State of Florida."

The Court judicially knows that conditions vary so much in different portions of the State and in different portions of the same county or city as to make it impossible to fix a fair reasonable minimum price for barber work on the basis required by the section of the statute quoted from.

The pleadings in this case state that the board of barber examiners, after investigating conditions, made an order fixing minimum prices to be charged for barbering services in Duval County, failing, however, to state what those prices were. But in the brief filed in behalf of the respondents and on the oral argument it was conceded by counsel for both sides that such order fixed the minimum price of haircuts at 40 cents, shaves 20 cents, plain shampoos 40 cents, medicated shampoos 75 cents, and other prices for the various kinds of barber services. The price so fixed for the entire county of Duval may have been entirely reasonable as minimum prices to be charged in the expensively equipped and gleaming white barber shops located in the central business district of Jacksonville, where rents are high and where the patrons of the shops so located are able to pay such prices, and probably even more; whereas those prices would be unreasonably high to be charged by the barbers in the poorer sections of the city where rents are much lower, and this would probably be likewise the case in the smaller towns of Duval county.

This thought is further illustrated by a statement made in the oral argument by counsel for the relator. In the course of his argument, he stated in substance that the relator was a colored man who had been in the barber business for many years and was a thoroughly competent barber; that his shop was located in a section of the city inhabited almost entirely by people of small means, most of whom were poor and not able to pay the minimum price thus fixed by the barber board for the entire county, and that it would practically destroy the relator's business and work a hardship upon his patrons if he were compelled to charge such prices.

The impossibility of fixing fair and reasonable minimum prices for barber work on a flat rate basis for an entire county would of course apply with greater force to an attempt to fix such prices for the entire state. Therefore, no matter how laudable the purpose of the statute, this section of the statute, in the form enacted by the Legislature, is incapable of being put into practical operation without denying to relator and many other barbers in the state the equal protection of the laws.

The field within which the police powers of the state may be exercised without unduly encroaching upon those fundamental personal and property rights of the individual citizen which are protected by both our state and national Constitutions, should be marked out and established, not by attempt to lay down any general rule which would be applicable in all cases, and certainly not by any speculative theorizing, but the line should be drawn step by step by the careful and practical decision of specific cases as they arise. It is important therefore that the court go no further than is absolutely necessary in each particular case. By the gradual process of judicial inclusion and exclusion, the courts can much better apply the fundamental law to legislative Acts designed to regulate business, labor and agriculture, and the professions, by considering each case on its merits as it arises, fairly and impartially facing the facts, the realities, of each situation as it is presented, than by any intensive effort to lay down general rules to govern all future cases that may come up.

The great difficulty of drawing the line in cases of this kind is illustrated by the decisions of the Supreme Court of the United States. Thus, in Holden v. Hardy, 169 U.S. 366, 42 L. Ed. 780, decided in 1898, the Supreme Court of the United States held that a state statute limiting the period of employment of workmen in underground mines, or in the smelting reduction of ores, to eight hours per day, and making its violation a misdemeanor, was a valid exercise of the police power of the state. It was also held in that case that the fact that both parties are of full age and competent to contract does not necessarily deprive the state of the power to interfere, where the parties do not stand upon an equal footing, or where the public health demands that one party to the contract shall be protected against himself. Yet, later on, in the case of Lochner v. New York, 198 U.S. 45, 48 L. Ed. 937, the same court held that a New York statute limiting employment in bakeries to sixty hours a week and ten hours a day, was an arbitrary interference with the freedom of contract guaranteed by the 14th amendment, and was not a valid exercise of the police power to protect the public health, safety, morals, or general welfare. Justices HARLAN, WHITE, DAY and HOLMES dissented. The dissenting opinion of Mr. Justice HOLMES in that case has been frequently quoted. The reading of the very able majority and minority opinions in that case shows how hard it is to draw the line. That opinion was rendered in 1905. In 1917, the same court decided the case of Bunting v. Oregon, 243 U.S. 426, 61 L. Ed. 830, wherein it was held that an Oregon statute, purporting to have been enacted as a health measure, and which prohibited any person from being employed in any mill, factory or manufacturing establishment in that state more than ten hours in any one day, except watchmen and employees when engaged in making necessary repairs, or in cases of emergency where life or property was in imminent danger, with a proviso for extra pay for voluntary overtime work, was a valid exercise of the police power, and that the limitation to employees in mills, factories, or manufacturing establishments was not an unconstitutional limitation. Three of the Justices dissented in that case without opinion. The decision in that case is apparently in conflict with the decision in the Lochner case above referred to. Indeed, the decision of that eminent tribunal in the Lochner case, supra, and in Coppage v. Kansas, 236 U.S. 1, 59 L. Ed. 441, and in Adkins v. Children's Hospital,261 U.S. 525, 67 L. Ed. 785, have been the subject of much discussion and considerable criticism. In the case last cited, Adkins v. Children's Hospital, an Act of Congress, generally applicable to all occupations within the District of Columbua, giving a regularly constituted board the power to fix for women a minimum wage, sufficient in its opinion to supply the necessary cost of living and maintain the women in good health and protect their morals, the violation of which subjected employers to a penalty, was held invalid, as being in conflict with the due process clause of the Federal Constitution. This decision was rendered in 1923. The dissenting opinions of Mr. Chief Justice TAFT and Mr. Justice HOLMES are very strong, and no doubt come nearer stating the law as it exists today than did the majority opinion by Mr. Justice SUTHERLAND. Mr. Chief Justice TAFT contended that the decision of the majority was in conflict with Bunting v. Oregon, supra, and Muller v. Oregon, 208 U.S. 412, 52 L. Ed. 551, which latter case sustained the validity of a limit on maximum hours of labor for women. The dissenting opinion of Mr. Justice HOLMES is well worth reading in connection with the case now before us. It strongly supports the position taken by Mr. Justice BUFORD.

In the case of Tyson Bro. v. Banton, 273 U.S. 418, 71 L. Ed. 718, the court held that in order to constitionally justify the fixing of prices, the business must be one which has been devoted to the public use, and its use in effect granted to the public. In that case Justices HOLMES, BRANDIES, STONE and SANFORD dissented. In his dissenting opinion, Mr. Justice STONE said:

"The attitude in which we should approach new problems in the field of price regulation was indicated in German Alliance Ins. Co. v. Kansas, 233 U.S. 389, 409, 58 L. Ed. 1011, 1020, L.R.A. 19150, 1189, 34 Sup. Ct. Rep. 612: `Against that conservatism of the mind, which puts to question every new act of regulating legislation and regards the legislation invalid or dangerous until it has become familiar, government — state and national — has pressed on in the general welfare; and our reports are full of cases where, in instance after instance the exercise of the regulation was resisted and yet sustained against attacks asserted to be justified by the Constitution of the United States. The dread of the moment having passed, no one is now heard to say that rights were restrained or constitutional guaranties impaired.' Again, in sustaining the constitutionality of a zoning ordinance under the 14th Amendment, this Court has recently said: `Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.' Euclid v. Ambler Realty Co., 272 U.S. 365, ante, 303."

Finally, in the recent New York Milk case, Nebbia v. New York, cited in both the opinions of Mr. Presiding Justice ELLIS and Mr. Justice BUFORD, the Court, as we have seen, abandoned its previous views that price fixing could not be employed as a means of public regulation of industry, unless those industries were in effect public utilities.

In the opinion of Mr. Presiding Justice ELLIS, as I understand it, it is intimated that the learned Justice might uphold the validity of Section 12 of this statute if it dealt with a "paramount" industry. Whether the sale of milk in a state like New York, which contains America's largest city, might be deemed a paramount industry is perhaps a somewhat debatable question. But undoubtedly, the Supreme Court held that the milk business was of such vital importance to the people of the State of New York as to justify the Legislature in fixing minimum and maximum prices for that very necessary product, in order to remedy conditions of over-supply, destructive competition and low prices. It was somewhat on this basis that this Court in the case of Earle v. Dade County, 92 Fla. 432, 109 So. 331, upheld an Act authorizing a county to acquire property and to erect thereon the necessary structures for the purpose of conducting fairs and agricultural exhibitions for the enhancement of the agricultural interests of the county, and to issue bonds for that purpose, and to levy the necessary taxes to pay such bonds, as not being in conflict with Section 5 of Article IX of our Constitution. The stated purpose was held a legitimate public purpose, and a "county purpose" within the meaning of such constitutional provision limiting county taxation to county purposes. There we had an Act which in effect taxed all of the taxpayers of Dade County, without regard to occupation, for the purpose of promoting the interest of a particular class, those engaged in agriculture, which was regarded as a "basic industry." In the opinion in that case it was said:

"It must be admitted that the policy of promoting the progress and welfare of the great basic agricultural industry of our country, upon which the prosperity and welfare of all classes depends, by the establishment and maintenance of agricultural departments, in both the state and national governments, has long since became a well established public policy. While possibly this policy may not be rested upon an absolute public necessity, it may very probably be justly based upon the vital interest of the public in the proper functioning of the agricultural interests."

The mere fact that the statute now under consideration deals with a comparatively small business or occupation, there being only some 3,700 active registered barbers in the State, does not negative the fact that it is a business which has a very real relation to the public health and I do not think that there is any doubt that the Legislature has the power to regulate such a business. In the Act of 1931, various provisions were incorporated which were designed to raise the standard of barbering work in this State, even to the extent of providing certain educational qualifications for apprentices, and examination before registration, and schools of barbering wherein the scientific functions of barbering, physiology, hygiene, elementary chemistry relating to sterilization and antiseptic massage and manipulation of the muscles of the face, neck, scalp, etc., should be taught. Each applicant for a certificate of registration was required to pass a satisfactory examination. The validity of this Act, Chapter 14650, has been upheld against such attacks as have heretofore been made, and I am inclined to think that both that statute and the one now under review here were and are in their general features within the power of the Legislature to adopt.

The constitutional provision regarding the equal protection of the law does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. It merely requires that all persons subject to such legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and liabilities imposed. It is not infringed by legislation which applies only to those persons falling within a specific class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Cooley's Constitutional Limitation, page 824-25; DiLustro v. Penton, 106 Fla. 198,142 So. 898.

While freely admitting that it is difficult to construe or apply to new circumstances as they arise Section 1 of the Declaration of Rights in our Constitution and the due process and equal protection clauses of the Federal Constitution, and while I am inclined to agree in the main with the reasoning contained in Mr. Justice BUFORD'S opinion, I am clearly of the opinion that Section 12 of Chapter 16799, as it appears before us in this Act, is in conflict with those provisions of the Constitution, state and national, because of the arbitrary county wide and state wide features of said price-fixing section, as discussed in the beginning of this opinion. I therefore concur in the granting of the peremptory writ.