Miami Laundry Co. v. Fla. Dry Cleaning and Laundry Bd. , 134 Fla. 1 ( 1938 )

This is easily one of the most important cases that has ever been brought to this Court for decision.

Cases involving the field within which the police powers of the State may be appropriately exercised without unduly encroaching upon those fundamental personal and property rights which are guaranteed and protected by our State and National Constitutions nearly always present delicate and difficult questions for the judicial branch of the government to decide, but questions which, under our form of government, they must decide, else constitutional guarantees would become "mere scraps of paper."

We are here dealing with the constitutionality of an Act which authorizes an administrative board to control and regulate the laundry, dyeing, and dry-cleaning businesses of this State, in all their ramifications, including the prices to be charged by such businesses, in all the counties of this State having a population in excess of 17,500. In other words, we are dealing with an Act by which the State, acting through an administrative board, assumes to exercise the power to regulate and fix the prices to be charged in an ordinary business, not a public utility, nor a paramount or basic industry, nor one directly or materially affecting the public health, such for instance as the dairy industry. Surely the washing and dyeing and cleaning of clothes and linens has no greater relation to the public health than the making or selling of clothes and linens, and not nearly so vital a relation to the public health as the making and selling of the foods we consume and the medicines we take. Thus if the State, acting through an administrative board, can under our Constitution fix the prices to be charged by those engaged in the laundry and dry cleaning business, it likewise has the power to fix and regulate the prices to be charged by clothing stores, tailoring establishments, drug stores, grocery stores, "the butchers and bakers and candlestick makers," and a host of other businesses. Whether or not this State control of business generally would constitute a wise public policy is not for this Court to say, but whether it can be done under our present Constitution, it is both the province and imperative duty of this Court to decide.

If we hold, as I think we must, that this cannot be done under our present Constitution, then, if the people of Florida desire to inaugurate this policy of State regulation and control of business and of prices, in regard to all businesses and industries, or with respect only to the particular class of businesses involved in this Act, they can readily do so by the adoption of a constitutional amendment. But this Court has no power (nor do any of its members intend) to amend the Constitution by judicial decree; nor should it, in my opinion, do so, in effect, by a change in its former construction of the meaning of a constitutional provision unless thoroughly convinced that such former construction was erroneous.

It is, and long has been, generally understood by the people of Florida that under our Constitution the Legislature has the power, which it has exercised for many years, either directly, or, by proper enactment, through administrative officers or boards, to regulate and fix the prices or rates charged by public utilities, such as common carriers — railroads, bus and truck lines, etc. — electric light, power and water plants, telegraph and telephone companies, but it no doubt would have come as a surprise to most of our people, and to the bench and bar of the State, when in 1936 this Court upheld the constitutionality of the Act regulating through a State Board the price of milk, for a two-year period, had it not been that this had already been done in New York State and the constitutionality of the New York Act upheld by the courts of New York and by the United States Supreme Court, in the Nebbia case, for reasons which do not apply to businesses and industries in general.

I thoroughly agree that, in the application of constitutional provisions to new and changed factual conditions, there is such a thing as the new application of old principles without changing the principles. In the opinion of this Court on rehearing in the case of Carlton v. Mathews, 103 Fla. 301, 381-382,137 So. 815-848, written by the writer of this opinion, it was said:

"Constitutional principles do not change, except as they may be altered by the people through constitutional conventions or by amendments made in the manner prescribed by the Constitution. The Constitution does not mean one thing yesterday or today and another tomorrow. But while constitutional principles do not change, sometimes conditions do change and new and different conditions arise and new statutes are enacted to deal with them, and constitutional principles must be applied to meet such new statutes and conditions as they arise, fairly, intelligently, and impartially. The principles of the Constitution must be preserved at all hazards, in all their pristine vigor and purity, and the language in which they are expressed given its plain and obvious meaning and true intent, uninfluenced by any spirit of expediency or opportunism. Euclid v. Ambler Realty Co., 272 U.S. 365,47 S. Ct. 114, 71 L. Ed. 303, 54 A.L.R. 1016. But in applying such principles to new or changed conditions, the courts should fearlessly face the facts — the actualities and realities of the situations and questions thus presented — and apply the principles of the Constitution to them without any sacrifice whatever of such principles, and without any strained construction of the language in which those principles are expressed."

I have not yet seen any reason for departing from these principles of constitutional construction.

Primacy of position in our State Constitution is accorded to the Declaration of Rights. It is significant that our Constitution begins by specifying those things which the State Government must not do before specifying certain things that it may do. These declarations of rights are the fruitage of years; they have their roots deep in human nature and in the past. They breathe the spirit of that sturdy and self-reliant philosophy of individual liberty which underlies and supports our American system of government, and has done so from its birth. Their establishment and enforcement have cost our forefathers much, both on the field of battle and in the efforts of their leaders and statesmen. "No race of hot-house plants could ever have produced and compelled the recognition of such a stalwart set of basic principles, and no such race can preserve them." State, exrel. Davis, Attorney General, v. City of Stuart, 97 Fla. 69,120 So. 335.

The first section of our Declaration of Rights provides that "All men are equal before the law, and have certain inalienable rights, among which are those of enjoying and preserving life and liberty, acquiring, possessing and protecting property and pursuing happiness and obtaining safety." And Section 12 provides that "no person shall be * * * deprived of life, liberty or property without due process of law."

And the Fourteenth Amendment to the Federal Constitution provides that: "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."

While some of these principles hark back to Magna Charta, which was wrung by the Barons from the reluctant hands of King John some hundreds of years ago, the doctrine of individual liberty had its greatest growth during the latter part of the 18th and the first half of the 19th centuries, and was a natural reaction against the autocratic, oppressive and paternalistic regime which had grown up during the middle ages, and which had its culmination, so far as our forefathers in America were concerned, during the reign of George III as King of England. Under this paternalistic regime personal liberty was unduly restricted. The citizen was hardly free to think for himself, his goods were subject to arbitrary seizure, his house to arbitrary search, his person to imprisonment for debt; he suffered heavy taxation without representation in the Parliament that imposed the taxes. The few were booted and spurred to ride, the masses were bridled and ridden. So when the American colonists revolted, promulgated their immortal Declaration of Independence, established that independence after seven years of war and came to form our State and Federal Constitutions, they were careful to enunciate all the limitations upon the powers of government contained in Magna Charta and the Bill of Rights, which their English forefathers had fought for, and went further and enumerated therein a number of other things which government should not interfere with.

The idea that society is everything and the individual nothing of any importance; that government of the State is an entity in and of itself; for which man was created and of which he is but a means to an end, whether moral or immoral, right or wrong, was not regarded as founded upon fundamental principles, and such a philosophy was entirely foreign to the minds of the makers of America. They believed, as stated in the Declaration of Independence, that men are "endowed by their Creator with certain inalienable rights," and that, to paraphrase, in the most reverent spirit, the words of the Master with reference to the Sabbath, government was made for man, and not man for government; and that a rightly founded government "derives its just powers from the consent of the governed." They believed that individuals form the essential units out of which both society and government are created, and that the true theory of government is that according to which the good of the State and its citizens consists in the well-being and free initiative of its competent members, restricted only by such just and reasonable laws as are essential to the common good and to the protection of each citizen in the enjoyment of "life, liberty and property," and "the pursuit of happiness." Thus they believed that good government and individual liberty, freed of all arbitrary and unreasonable restraints, go hand in hand; that they are not antagonistic, the one to the other, for in the social state, the protection of government is indispensable to the highest and best development of the individual citizen. As was well said by our former President, Woodrow Wilson, in his work on "The State":

"Society is an organic association of individuals for mutual aid. Mutual aid to what? To self-development. The hope of society lies in infinite individual variety, in the freest possible play of individual forces; only in that can be found that wealth of resource which constitutes civilization with all its appliances for satisfying human wants and mitigating human suffering, with all of its incitements to thought and spurs to action. * * *. The individual must be assured the best means, the fullest opportunities, for complete self-development, but the most indispensable conditions for self-development government alone can supply."

While doubtless many of these early Americans, after they had won their independence and liberty at so great a price, believed that in individual liberty and free competition they had found the solvent of all social problems. But they were too familiar with the common law of England and the ordinances which they had themselves adopted during the colonial period to confound liberty with license. They knew that individual liberty did not mean the right to do so absolutely as one pleased, regardless of the effect of his conduct on the general public or on the liberties and rights of other individuals. That has never been the American idea. We gather from the history and public addresses of those days that what they had in mind was the attainment of that liberty under law which would protect the citizen in the enjoyment of life, liberty and property, and give to each citizen free and equal opportunity for self-development and the making of an honest livelihood without arbitrary or oppressive governmental interference. And so it was that these forefathers of ours insisted upon the addition to the Federal Constitution of 1787, by the first ten amendments, of a "bill of rights," and had not this insistence been agreed to in advance, that great instrument would not have been ratified by the requisite number of States. It had not been thought necessary, by the statesmen who framed that notable instrument, to embrace therein a bill of rights, because the Constitution created a federal government of limited and delegated powers, but the leaders and the people of most of the States thought that the temptation to exceed those powers might arise in the future; hence the insistence above referred to. The first ten amendments, embracing the bill of rights, were promptly submitted to and adopted by the States as soon as possible after the ratification of the Constitution as framed by the Convention. One of these, the fifth, provided that "No person * * * shall be deprived of life, liberty, or property, without due process of law"; and in later years this provision was made compulsory upon all the State governments by the terms of the Fourteenth Amendment to the Federal Constitution, although our own State, and most if not all of the other States already had similar provisions in their State Constitutions.

As a side light on the spirit of the earlier days of this Republic, it might not be amiss to recall that Thomas Jefferson closed his first inaugural address with these words:

"Still one thing more, fellow citizens, * * * a wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned." And another time he said: "The legitimate powers of government extend to such acts only as are injurious to others."

I have referred to these familiar historical facts to emphasize how carefully from the beginning of our American form of government, this ideal of its founders, the individual liberty of the citizen, free from all arbitrary restraints, has been established, and preserved as one of the fundamental American constitutional principles. And in this connection we might well take to heart the words of John C. Calhoun, who once said:

"Of the few nations who have been so fortunate as to adopt a wise constitution, still fewer have had the wisdom long to preserve one. It is harder to preserve than to obtain liberty."

This principle of personal liberty is so deeply founded in the instincts of human nature that it is as much a living principle today as it was in the days of our forefathers. The complexities and interdependencies of our modern civilization and economic system have changed human nature little, if any; nor have they changed or paralyzed the principles embodied in the bill of rights. There have of necessity, throughout the subsequent years, been many new applications of these old fundamental principles. And this process must continue. Social and economic conditions are never static. Thus laws which might have constituted arbitrary restraints of liberty a generation ago are now taken as a matter of course, and as being as much necessary for the protection of the individual citizen as for the public at large, of which the individual forms an integral part; such, for instance, as our traffic regulations, since the advent of the motor vehicle; and our comparatively recent laws for the protection of the public health in the light of modern scientific discoveries. But the fair and reasonable application of these well settled fundamental constitutional principles to new conditions as they arise give the courts no power to abandon or change the principles themselves. This power is reserved to the people.

Practically from the foundation of our constitutional system, the individual liberty guaranteed thereby has been considered by the courts and the people, and generally by the legislative bodies, to embrace the right freely to make contracts, but this right of "freedom of contract" has never been deemed absolute or unlimited.

In So. Utilities Co. v. City of Palatka, 86 Fla. 583,99 So. 236, this Court, speaking through Mr. Justice WHITFIELD, held that freedom of contract is not absolute; that "Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community."

In the case of Riley v. Sweat, 110 Fla. 362, 149 So. 48, dealing with an Act imposing certain regulations upon dealers in corporate securities, one section of which Act was held unconstitutional, this Court, speaking through the late Mr. Justice DAVIS, then Chief Justice of this Court, said:

"`Liberty' as that word is used in the Fourteenth Amendment of the Constitution of the United States, means more than mere freedom from servitude. `Liberty' as protected by theFourteenth Amendment to the United States Constitution means not alone the right of the citizen to be free from unauthorized physical restraint of his person. It means that he must be free in the enjoyment of all of his faculties; to be unhindered in the use of them in all lawful ways; to live and work where he will; to earn livelihood by any lawful calling; to freely pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned, subject only to those valid restraints on individual action which may be exacted under the police power of the State. Smith v. State of Texas, 233 U.S. 630, 34 Sup. Ct. Rep. 681, 58 L. Ed. 1129; Williams v. Fears, 179 U.S. 270, 21 Sup. Ct. Rep. 128,45 L. Ed. 186; Allegyer v. State of Louisiana, 165 U.S. 578, 17 Sup. Ct. Rep. 427, 41 L. Ed. 832.

"But the power of the State in providing for the general welfare of its inhabitants, authorizes its legislative power to be exercised in making and enforcing regulations which in its judgment are necessary and appropriate to secure the people against the consequences alike of ignorance and incapacity, as well as deception and fraud, in the pursuit of an otherwise admittedly proper and lawful calling, business or profession. Dent v. State of West Virginia, 129 U.S. 114, 9 Sup. Ct. Rep. 231,32 L. Ed. 623. Yet it is well settled that under theFourteenth Amendment to the Constitution of the United States the guaranty of `liberty' therein set forth precludes the direct, or indirect, forbidding by the State of the citizen's inherent right to engage in a useful and legitimate business, even though such business itself be subject to reasonable statutory regulations of an appropriate nature enacted under the police power. Adams v. Tanner, 244 U.S. 590, 37 Sup. Ct. Rep. 662, 61 L. Ed. 1336."

See also the recent case of Prior v. White, 180 Fla. 347,180 So. 347.

In addition to the decisions, both State and Federal, upholding the validity of statutes regulating the rates and charges of public utilities in general and certain industries "affected with a public interest," and those upholding the constitutionality of statutes prohibiting trusts and monopolies, and making unlawful all contracts and conspiracies in restraint of trade and commerce, generally referred to as anti-trust statutes, designed to preserve free competition, there is also another class of cases upholding the validity of statutes regulating contracts between employer and employee. One of the earliest of this latter class of cases is the case of Holden v. Hardy, 169 U.S. 366,42 Law Ed. 780, 18 S.C. 383. In that case, handed down by the Federal Supreme Court over forty years ago, it was held that the protection of the health and morals, as well as the lives, of its citizens, is within the police power of a State Legislature, and that a statute of Utah, limiting the employment of workmen in underground mines, or in smelting of ores, to eight hours per day, was a valid exercise of the police power; that although the parties were of full age, the employer and employee in such industries did not stand upon an equality, and the public health demanded that the employee should be protected against himself. A recent decision of the same high tribunal, the case of West Coast Hotel Co. v. Parrish,300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578, 108 A.L.R. 1330, followed the same principle, and held constitutional a statute of the State of Washington which authorized the fixing of reasonable minimum wages for women and minors, by State authority, which should be adequate for the decent maintenance of women workers, upon the recommendation of a conference composed of representatives of employers and employees and of the public. In the majority opinion the several former decisions of the Court, dealing with the extent to which the police power may be exercised in cases involving statutes regulating and limiting freedom of contract as between employers and employees were reviewed, and one of them, the case of Adkins v. Children's Hospital, 261 U.S. 525,67 L. Ed. 785, 43 S.C. 394, 24 A.L.R. 1238, was overruled, and I think properly so. The reasons given in this, and former decisions of our highest court, why the police power may be exercised to protect the health of women and children from unreasonably long working hours and at unreasonably small wages, are to my mind cogent and just.

But we are not here dealing with a statute falling within the class of statutes dealt with by the United States Supreme Court in the cases referred to in the preceding paragraph. We are dealing with an Act which authorizes the appointment by the Governor of a board of seven members, three of whom shall be chosen from those engaged in the dry-cleaning, dyeing and pressing industry, and three from those engaged in the laundry business, and one member to represent the general public, and vested with authority to fix the prices to be charged by such industries. No power is given by the Act to fix the minimum of wages nor the maximum of hours of labor of the persons employed in these industries. There are quite a few cases holding that certain practices of industries of this kind may be regulated under the police power, but there are very few, if any, decisions by a court of last resort, holding that this power of regulation may be extended to the fixing of prices to be charged by such industries. The weight of authority is to the effect that this may not be done; that to do so constitutes an unnecessary, unreasonable and arbitrary invasion of that freedom of contract which is guaranteed by the Constitution, the maintenance of which is the foundation of economic liberty in this country.

This question was, as I see it, settled by the decision rendered by this Court some two years or more ago in the case of State, ex rel. Fulton, v. Ives, 123 Fla. 401, 167 So. 394, in which this Court held the price-fixing power of the Board of Barber Examiners, as attempted to be vested in them by Chapter 16799 of the Acts of 1935, to be unconstitutional; that is, it was settled unless the Court should now overrule that decision. In the able majority opinion in that case, Mr. Chief Justice ELLIS, among other things, said:

"Freedom of contract is the general rule; restraint is the exception and when it is exercised to place limitations upon the right to contract the power when exercised must not be arbitrary or unreasonable and it can be justified only by exceptional circumstances. Ex Parte Messer, 87 Fla. 92, 99 South. Rep. 330.

"While it is undoubtedly true that it is within the power of government to restrain some individuals from all contracts and all individuals from some contracts, the truth must not be ignored that a citizen's right to pursue any lawful business if `property' and the right to contract for personal services as a means for the acquisition of property is one of the privileges of a citizen of the United States of which he cannot be deprived without invading his right to liberty. See State, exrel. Davis, v. Ross, 97 Fla. 710, 122 South. Rep. 225; Paramount Enterprises v. Mitchell, 104 Fla. 407, 140 South. Rep. 328.

* * *

"The case of People v. Logan, 284 Ill. 83, 119 N.E. Rep. 912, was cited as authority for the proposition that because the `trade of a barber brings him in direct contact with the persons of his patrons, and careless and unsanitary practices in his trade may induce disease of the skin. * * * It cannot be said that the reasonable regulation of the trade of a barber has not relation to the health and safety of the public.' (Italics supplied.)

"That authority may be sufficient to justify the enactment of Chapter 14650, Laws of Florida, 1931, defining the practice of barbering and requiring a license or certificate of registration as a condition precedent to practicing the trade and creating the Board of Barber Examiners, etc.

"Whether the additional powers attempted to be conferred upon the Board of Barber Examiners by Chapter 16799, supra, Acts 1935, is a valid exercise of the police power is a different matter.

"There is no controversy here, nor is there any doubt about the proposition, that the liberty of contract is not absolute and universal; that it is subject to the police power of the State to place restrictions upon it in the interests of the general welfare. There is no need to cite authority other than our own decisions upon this proposition. Everglades Sugar Land Co. v. Bryan, 81 Fla. 75, 87 South. Rep. 58; State, ex rel. Davis, v. Rose, supra; Whitaker v. Parsons, 80 Fla. 352,86 South. Rep. 247.

"Mr. Justice WHITFIELD, speaking for the Court in the case last cited, embodied the doctrine in a very few words as follows: `Individual rights to life, liberty and property are in law acquired and enjoyed, subject to the exercise of the regulating powers of government; and such rights are not protected by the Constitution from the due exercise of such governing powers. The purpose of constitutional government is to secure individual rights subject to valid regulations enacted in the interest of the public good.'

"It is also true that the courts are the final judges as to what are proper subjects of the police power and the lawmaking power cannot arbitrarily make that a subject of its exercise which from its nature is not one. City of Jacksonville v. Ledwith, 26 Fla. 163, 7 South. Rep. 885, 23 Am. St. Rep. 558, 9 L.R.A. 69.

"It has been said that the police power of the State embraces its whole internal affairs and its civil and criminal polity. It extends to the protection of the lives, health and property of the citizens and to the preservation of good order and public morals. Prigg v. Pennsylvania, 16 Pet. (U.S.) 539,10 L. Ed. 1060; Boston Beer Co. v. Mass., 97 U.S. 32, 7 Otto. 25,24 L. Ed. 989; Slaughter-House Cases, 15 Wall. (U.S.) 36, 21 L. Ed. 394.

"The police power is broad and extensive. It may be exercised for preserving the public health, safety, morals or general welfare and its regulations may reasonably limit the enjoyment of personal liberty including the right of making contracts. The Supreme Court of the United States has invariably so held. See Holden v. Hardy, 169 U.S. 366, 18 Sup. Ct. Rep. 383,42 L. Ed. 780; Chicago B. O.R. Co. v. McGuire, 219 U.S. 549; 31 Sup. Ct. Rep. 259, 55 L. Ed. 328; Gibbons v. Ogden, 9 Wheat 1;6 L. Ed. 23; License Cases, 5 How. 504, 12 L. Ed. 256; New York v. Niln, 11 Pet. 102, 9 L. Ed. 648.

"Mr. Justice ROBERTS, in the case of Nebbia v. New York,291 U.S. 502, 54 Sup. Ct. Rep. 505, 78 L. Ed. 840, quoted the language of Mr. Justice BARBOUR in New York v. Niln, supra, to the effect that `it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every Act of legislation, which it may deem to be conducive to these ends.'

"In all cases, however, in which that wholesome constitutional doctrine has been announced it must not in the interest of constitutional liberty be forgotten that the regulations adopted in the exercise of the great power must be deemed to be fairly necessary to secure some object directly affecting the public welfare. The Fourteenth Amendment debars the States from striking down personal rights, which, of course, include the right to make contracts for personal service, except as may be incidentally necessary for the accomplishment of some other paramount object and one that concerns the public welfare."

* * *

"Certain kinds of business may be prohibited and the right to pursue a calling may be conditioned. Mr. Justice ROBERTS in the Nebbia case, supra, in a footnote to his opinion, cites a number of such vocations. It that case contracts for the sale of milk by local dealers were restricted by limitations upon the price to be charged and the regulation was upheld. The production of milk in the State of New York was deemed to be of such paramount importance that the public welfare and prosperity of the State in a very large and real sense depended upon it. The power to regulate it, a private business, could be invoked only under the special circumstances in which the property or general health of the entire State in a large measure depended upon it. See New State Ice Co. v. Liebmann, 285 U.S. 262,52 Sup. Ct. Rep. 371, 96 L. Ed. 747.

"The Legislature cannot decide the question of emergency and regulation free from judicial review. The legitimacy of the conclusions drawn from the facts is a matter for consideration by the court."

"It may be admitted that the barber trade in some respects bears an analogy to the profession of law, medicine, dentistry, osteopathy and other occupations which require on the part of the practitioner a degree of scientific training, knowledge of hygiene and manual skill necessary to efficient service, yet such professions may not, under the guise of protecting the public, be arbitrarily interfered with by the imposition of unreasonable and unnecessary restrictions. To impose such restrictions as are attempted by the Act in question would be to impose limitations upon certain essentials of liberty, particularly that of contract, with which the State is not entitled to dispense under the form of government which we now enjoy.

"The principle underlying the Act is a species of socialistic leveling of merit or capacity in the practitioner wholly inconsistent with the American ideal of encouragement to the worthy and industrious, by placing a handicap upon the proficient artist in the trade who would be in a measure coerced by the minimum price fixed for barber service which may be charged by one who under the provisions of Chapter 14650, supra, is equally qualified to practice the trade, to charge a price in reality inadequate to compensate him reasonably for the character of service he is capable of rendering. On the other hand the minimum price fixed by the Board actually interferes with the liberty of the efficient and highly skilled barber to contract with his patron for the rendition of a much needed service in the matter of beard cutting, hair trimming and facial massage.

"So the question is reduced to the narrow limitations of the State-wide necessity of fixing a minimum price for barber service in the interest of public health and welfare or the preservation of a trade which may be said to constitute a paramount industry of the State. We perceive no elements in the trade which make it an industry of paramount importance to the State peculiarly different from those contained in other like businesses where the element of personal service is sought from skillful practitioners."

"The obvious purpose of the Act was to enable the Board of Barber Examiners to set up a code for the government of the trade without any approval by any department and without setting up any standards aside from the opinion of the Board as to what is necessary to secure to the `average barber' and his family suitable nourishment and maintenance. The analogy is almost perfect with the case of Schechter v. U.S., 79 L. Ed. 1570,295 U.S. 495. See also State v. Fowler, 94 Fla. 752,114 South. Rep. 435; State v. Duval County, 76 Fla. 180, 79 South. Rep. 692, relating to the delegation of legislative power.

"No emergency exists to justify such an extraordinary bit of legislation even measured by the alleged findings of facts by the legislative department and recited in the first section of the Act. The conclusion attempted to be reached that the legislation is justified in the interest of public welfare, health and morals has been shown to rest upon one supposition piled upon another which coincides with no known facts or other probable hypotheses. Such a regulation could be justified only upon the fact that the barber trade is a paramount industry of the State intimately connected with its welfare so that the State may through an agency such as the Board of Barber Examiners prescribe prices for the service to be rendered by each barber.

* * *

"What this legislation undertakes is not regulation, but management, control, dictation. The Legislature may not by its fiat convert a private business into a public utility."

* * *

"Reduced to its last analysis the thought underlying the Act seems to be, not that the barber trade is a paramount industry affecting the general welfare, but that the prosperity of the barber class sufficient to maintain the average barber and family `properly' is a sufficient reason for the exercise by the State of the power of direction, control and management of the barber business in the interest of health, and morals. And further, that the liberty of contract enjoyed by every barber engaged in his vocation is used by him or is likely to be so used by him as to imperil the business and jeopardize the public health, morals and general welfare.

"We find in none of the cases support, directly or indirectly, of such a notion of democratic government or constitutional liberty."

I have quoted at length from the majority opinion in the Ives case, because the principles stated therein apply with even greater force to the price-fixing features of the statute now before us.

The writer wrote a special concurring opinion in that case, to the effect that the price-fixing features of the Act were unconstitutional upon the ground that the Act required the Board to fix a flat scale of prices to apply to an entire county, or to the entire State, which could not reasonably and justly be done on account of the varying conditions affecting the reasonableness of such prices which existed in the different sections of the State, or even within the confines of a single county; that this alone was sufficient to make the price-fixing powers unconstitutional, and that I did not deem it necessary to place the decision on any other ground. As shown by that opinion, the writer hesitated to rule upon the general question of the legislative power to regulate the prices to be charged by barbers on account of the "very real relation" of that vocation to the public health, which was recognized by the Act by incorporating many provisions designed to raise the standards of sanitary conditions and efficiency in barbering work, among them those provisions requiring certain educational qualifications for apprentices, and by requiring examinations on various scientific subjects relating to hygiene, sanitation and antiseptic massage, as a prerequisite to registration, which matter was referred to in the dissenting opinion of Mr. Justice BUFORD.

But the Act now under review does not contain any provisions of that character, and the businesses dealt with are not so intimately related to the public health as is the work of the barber. Indeed, their relation to the public health is rather remote, and no greater than that of many other ordinary businesses in this State. This is indicated by the Act itself, which eliminates "wash-women" from its regulations, and also eliminates from its application counties containing nearly one-third of the State's population, and does not contain any provision setting up even a minimum of sanitary conditions to be maintained by these industries in the counties where it applies. While, in brief general terms, the Act gives the Board power to make "health and sanitation requirements" (and many other powers of other sorts in broad general terms) it gives no hint of what they shall be, nor does it set forth any general principle or standard by which action under this delegated legislative power should be exercised or measured. This appears to be in conflict with the case of State v. A.C.L.R. Co., 56 Fla. 617, 47 So. 969, dealing with the question of how far and in what way legislative power may be delegated. See also United States v. Schechter, 295 U.S. 495, 79 L. Ed. 1570, and the concurring opinion of Mr. Justice CORDOZO therein.

Appellees rely strongly upon certain observations made in the opinion rendered in the case of Bon Ton Cleaners Dyers, Inc., v. Cleaning, Dyeing Pressing Board, 128 Fla. 533, 176 So. 55, but those observations with reference to the effect of two recent decisions of the Federal Supreme Court were manifestly not intended to commit this Court to any departure from its previous decision in State, ex rel. Fulton, v. Ives, and the court below was in that case affirmed on another ground, not involved in the Ives case, nor in the case at bar. One of the two federal decisions referred to in the opinion was the case of West Coast Hotel Co. v. Parrish, supra. We have already shown what the actual holding in that case was. The other was the case of Highland Farms Dairy, Inc., v. Agnew, 300 U.S. 608,81 L. Ed. 836, 57 S. Ct. 549, wherein the United States Supreme Court sustained the constitutionality of the Virginia statute establishing a milk commission with power to create natural market areas and to fix the minimum and maximum prices to be charged for milk and cream therein. Neither of these cases dealt with price-fixing in such business as those sought to be regulated by the statute now before us.

The only case in which this Court has ever sustained the power of the Legislature to regulate and fix prices in industries or businesses, other than those which might be classed as public utilities, was in the case of Miami Home Milk Producers Asso'n v. Milk Control Board, 124 Fla. 797, 169 So. 541, in which this Court upheld the Florida statute (Chapter 17,103, Acts of 1935) establishing the Milk Control Board and vesting it with power to fix and regulate the price of milk. We were there dealing with a statute regulating the price of a valuable food product of practically universal consumption throughout the State; one of the prime necessities of life to tens of thousands of our very young children, and a necessary article of diet to many who were afflicted with certain classes of diseases or invalidism, and generally used as a part of their daily food by the vast majority of our people of all ages. Furthermore, it was a product peculiarly liable to contamination and adulteration. We had held in Logan v. Aliferi, 110 Fla. 439, 148 So. 872, that the business of producing and selling milk was of such prime importance to the public health as to authorize very strict regulation under the police power.

Our decision in Miami Home Milk Producers Asso'n v. Milk Control Board, supra, was based largely upon the vital relation of that industry, as a paramount industry of the State, to the public health, making its preservation essential to the general public welfare; citing as authority the case of Nebbia v. New York, 291 U.S. 502, 54 S.C. 505, 78 L. Ed. 940; affirming the decision of the Court of Appeals of New York sustaining the constitutionality of a substantially similar statute which had been adopted by the New York Legislature; also cases from the courts of last resort in Virginia and several other States upholding the validity of substantially similar statutes. As pointed out in the opinion of this Court in the Milk Control Board case, the holding therein was not in conflict with the decision in the case of State, ex rel. Fulton, v. Ives, supra, for the reasons therein stated. The laundry and dry-cleaning businesses, useful, serviceable and convenient though they be, are not basic or paramount industries, nor do they have anything like that vital relation to the public health which characterizes the production, distribution and sale of milk and cream. Legislative findings to the contrary in the preamble to the statute cannot blind this Court to those matters of common knowledge of which the courts are authorized to take judicial knowledge. This Court has said that what everybody knows, the courts are presumed to know. While we should and do indulge all reasonable presumptions in favor of legislative findings, we must nevertheless face the realities, the actual facts, which are matters of common knowledge, with regard to the nature and character of the businesses here involved, and act in accordance therewith. This principle has often been announced by this Court in the past, and was reasserted in the Milk Control Board case.

The contention that the present case should be affirmed on the authority of the Nebbia case, supra, and our Milk Control Board case is therefore not tenable. This is clearly shown by the decisions of the New York Court of Appeals subsequent to its decision in the Nebbia case. See Doubleday, Doran Co. v. Macy Co., 269 N.Y. 272, 199 N.E. 409, and Darweger v. Staats,267 N.Y. 290. In the latter case, commenting on the Nebbia case, Chief Justice CRANE said:

"The briefs place much emphasis upon Nebbia v. New York (291 U.S. 502), People v. Nebbia (262 N.Y. 259), and claim that this is an authority to sustain legislation fixing the price of any commodity — shoes, clothes, coal, hardware or anything else that may strike the Legislature's fancy, provided an emergency be declared. The fixing of the price of milk in the Nebbia case was a mere incident to other regulations which tried to meet an abuse growing up to the detriment of the farmer and his stock. This control of the output protected the very vitals of the industry, and it would not have been a far step to have held, as perhaps it was intimated, that the milk industry was one touched with a public interest, such as water, electricity, grain and the like. To say that the Nebbia case is an authority for the Legislature to fix the prices of all commodities is not justified by the decision. What the legislative power may be in a given case regarding any industry we do not undertake to say. Sufficient unto the day is the power thereof."

After our decision in the Barber Board case, State, ex rel. Fulton, v. Ives, was rendered, the Court of Appeals of Alabama, in City of Mobile v. Rouse, 173 So. 354, held that an ordinance of the City of Mobile regulating the charges for services of barbers in that city and fixing a minimum scale of prices, was unconstitutional. In the able opinion of Presiding Judge BRICKEN, the case of State, ex rel. Fulton, v. Ives was cited with approval. This case was taken by certiorari to the Supreme Court of Alabama, which in an able opinion by Mr. Justice BROWN affirmed the decision of the Court of Appeals. See 173 So. 266,233 Ala. 622, 111 A.L.R. 349, one of the seven Justices dissenting. However, the same court had upheld the constitutionality of the Act establishing the Alabama Milk Control Board on the ground that the milk industry was affected with a public interest. Franklin v. Ala. Milk Control Board,232 Ala. 637, 169 So. 295.

Counsel for the Dry Cleaning Laundry Board cite in support of their contentions the case of United States v. Spotless Dollar Cleaners, 6 F. Supp. 725, a decision rendered by a United States District Court in New York, which they say was never appealed. This decision held valid the scale of prices fixed by a code prepared for the cleaning and dyeing trade under the National Industrial Recovery Act. Counsel for appellants say that the reason this case was not appealed was because President Roosevelt promptly revoked the power of price fixing contained in the code upon the report of the Commissioners Advisory Board, rendered April 25, 1934, leaving therein only those provisions which permitted the regulation of wages and hours, doubtless concluding that the fair exercise of that power would prevent unfair competition; that this report showed that the price increases made under these price regulations had been resented by customers and had brought about a sharp decrease in the volume of business. Copious extracts from this report are quoted in the brief, but space forbids any further comment thereon.

Without further lengthening this opinion by an analysis and discussion of the many cases dealing with the subject, I think it may be safely stated that according to the weight of authority, the power of government to fix prices does not exist with respect to merely private property or business, but only exists where the business or property involved is "affected with the public interest." Likewise, the term "affected with a public interest" has been given various interpretations and applications. The decisions of the courts are not all in accord by any means on this subject. As stated in Miami Home Milk Producers Association v. Milk Control Board, the outstanding cases decided by the Federal Supreme Court dealing with the question of the power of a State to regulate prices in industries other than those usually classed as public utilities are probably the following: Mun v. Illinois, 94 U.S. 113, 24 L. Ed. 77; German Alliance Insurance Co. v. Lewis, 233 U.S. 389, 34 S.C. 612, 58 L. Ed. 1011; Wolff Packing Co. v. Kansas, 266 U.S. 522, 67 L. Ed. 1103; Tyson v. Danton, 273 U.S. 418, 47 S.C. 426, 71 L. Ed. 718, 58 A.L.R. 1236, and the Nebbia case, supra. To this list of cases might be added New State Ice Company v. Liebmann, 285 U.S. 262, 76 L. Ed. 747; Fairmont Creamery Co. v. Minnesota, 274 U.S. 1, 71 L. Ed. 893; Williams v. Standard Oil Company, 278 U.S. 235, 49 S. Ct. 115,73 L. Ed. 287, 60 A.L.R. 596. A vast number of cases will be found and cited on the question of what businesses may properly be held to be affected with a public interest, in 11 Am. Jur. 1058, to 1064, which will show that no particular formula or test has ever been unanimously agreed upon as final or conclusive. But when a business has been found to be one affected with a public interest, the Legislature may make all such reasonable regulations as it may deem necessary for the protection of the public in its relations with those who carry on businesses thus affected. 11 Am. Jur. 1065. And when a business has been devoted to a public use, it will be subject to public regulation both as to its use and as to the compensation to be paid for it; such for example as the charges of the railroad companies and other common carriers; grain elevators, warehousemen, telephone and telegraph companies. See Section 310 of Art. XVI of our Constitution. Then there are also certain regulations of the shell-fish and oyster industry; salt water and sponge fisheries; regulations for the inspection of fruits and vegetables; petroleum products, etc., for the protection of public health and the conservation of natural resources; but these regulations do not include price fixing. An examination of the cases will show that it is not every business or profession which has been subjected to police regulation which may also be subjected to the legislative fixing of prices to be charged. We have many professions, vocations and businesses in this State which are under our statutes subject to more or less strict police regulations, such for instance as all those above mentioned, and also doctors, lawyers, osteopaths, chiropractors, beauticians, optometrists, public accountants, civil engineers, banking, trust companies, hotels and restaurants, insurance brokers, etc., and so on; but the mere fact that the Legislature has seen fit to regulate these professions, vocations and businesses does not mean that the power to fix prices charged therein is vested in the Legislature. As was said in that same chapter of American Jurisprudence on Constitutional Law, 11 Am. Jr. 1077-78:

"The mere assertion by the Legislature that a statute relates to the public health, safety or welfare does not in itself bring that statute within the police power of a State, for there must always be an obvious and real connection between the actual provisions of a police regulation and its avowed purpose and the regulation adopted must be reasonably adapted to accomplish the end sought to be attained. A statute or ordinance which has no real, substantial, or rational relation to the public safety, health, morals, or general welfare is a palpable invasion of rights secured by the fundamental law and cannot be sustained as a legitimate exercise of the police power. One application of the familiar rule that the validity of an Act is to be determined by its practical operation and effect, and not by its title or declared purpose, is that a constitutional right cannot be abridged by legislation under the guise of police regulation. The exercise of the power must have a substantial basis and cannot be made a mere pretext for legislation that does not fall within it. The Legislature has no power under the guise of police regulations, arbitrarily to invade the personal rights and liberty of the individual citizen, to interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations, or to invade property rights."

In the case of Becker v. State, a Delaware case rendered in 1936, 185 A. 92, it was held that the dry cleaning business was not affected with a public interest, and that considerations of public health were so remote as to be negligible; that a vast authority was centered by the Act in a governing board, a majority of which were directly interested in the industry and sit in judgment over fellow members of the trade; that the practical tendency of the legislation was to create and foster monopoly, to prevent and not to encourage competition, and to maintain maximum, not minimum prices, all of which is against and not in the interest of the consuming public. The Delaware Court held that such a business was not so affected with a public interest as to justify such price regulations. To like effect see Kent's Stores v. Wilentz (N.J. 1936) 14 F. Supp. 1.

In the recent case of the City of Mobile v. Gibson,173 So. 264, the Court of Appeals of Alabama held that an ordinance of the City of Mobile, fixing prices for the pressing and cleaning of clothes, was unconstitutional, on the authority of the Rouse case, 173 So. 254, and on certiorari to the Supreme Court of Alabama, the action of the Court of Appeals was affirmed in March of 1937. See 173 So. 266.

The grocery business (Balzar v. Caler [Ca. 1] 74 Pac. [2nd] 839) and the Employment Agency Business (Ribnik v. McBride,277 U.S. 350, 72 L. Ed. 913, 48 S.C. 545) were held not affected with a public interest.

The mere existence of unfair trade competition and destructive price wars, as stated in the legislative findings, are not of themselves sufficient to authorize the Legislature to fix the prices to be charged in businesses that are not affected with a public interest. There are ways of preventing unfair and destructive competition other than those which involve the complete destruction of competition. At the time this opinion is written, the newspapers report the strenuous activities of the Federal Department of Justice to prevent competition in the oil industries, and also in the motion picture industry, which has resulted in the indictment of a number of prominent persons connected with the operation of those industries. These prosecutions, so it is reported, are for violations of the Sherman Anti-Trust Act, which prohibits all contracts in restraint of trade in interstate commerce. We have a similar Act in this State, which was adopted in 1915 and amended in 1925, which prohibits combinations for the purpose of creating or carrying out restrictions in trade or commerce, or the free pursuit of any business authorized or permitted by the laws of this State, or to prevent competition in the making, transporting, sale or purchase of merchandise, produce or commodities; for the making or carrying out of any contract or agreement to keep the price of any article, commodity or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of any article or commodity between themselves and others to preclude a free and unrestricted competition among themselves or others, etc.

There is a serious question in this case whether this Act, by exempting from its operation a large number of counties of the State, in which counties the burdens and regulations imposed by this Act upon those engaged in the laundry and dry cleaning business are not operative, does not deny to persons engaged in such industries in the counties to which the Act does apply the equal protection of the laws. See State v. Justus, 90 Minn. 474,97 N.W. 124; State v. City of Memphis, 266 S.W. 1038; Randolph v. State, 117 Tex.Crim. Rep., 36 S.W.2d 484. There is also a serious question as to whether or not this Act vests the board with such broad powers, and in such general terms, "to supervise and regulate the entire cleaning, dyeing, pressing and laundry industry of the State of Florida," does not as to some of its provisions, amount to an unconstitutional delegation of legislative power, under our own decisions as well as those of the United States Supreme Court, such as the Schechter case,supra, including the illuminating concurring opinion of Mr. Justice CORDOZO in that case, and also the case of Panama Refining Company v. Ryan, 293 U.S. 388, 55 S.C. 241,79 L. Ed. 446. However, it is not necessary to discuss these questions, as in my opinion the overwhelming weight of authority in this country shows that the price-fixing features of this Act are unconstitutional.

The Constitution certainly does not contemplate that the bars shall be completely thrown down to the unlimited regulation and control by the State of private business, including the fixing of prices. The line must be drawn somewhere, sometime, between those businesses which are so clearly affected with a public interest that they may thus be so drastically controlled and regulated by the State, and those which may not; even if that line may have to be drawn gradually by the slow process of judicial inclusion and exclusion to cases as they arise. The right constitutional balance between the personal and economic liberty of the individual, as guaranteed by the Constitutions, both State and Federal, and the legitimate exercise of the police power in the interest of the public health, safety, morals and general welfare, must be maintained if our form of government is to endure. In the Ives case, this Court held that there was a limit beyond which the Legislature could not go, and that, as to price fixing legislation as applied to private business, the Legislature could not constitutionally exercise that power except when dealing with some basic or paramount industry which vitally affects the public health and welfare of the general public of the State. If we are to depart from this general principle, and open the flood-gate for legislative control or regulation of prices in any private business or avocation which the Legislature shall state in the Act is for the public health or welfare, let the people first pass on this momentous and far-reaching question by the adoption, or the refusal to adopt, a constitutional amendment on the subject, if the proponents of this departure from our previous construction of the constitutional guarantees see fit to secure the submission of such an amendment.

In the meantime, I think this Court should stand by and adhere to the principles laid down in our previous decisions in the case of State, ex rel. Fulton, v. Ives and Miami Home Milk Producers Asso'n v. Milk Control Board. And if we do this, we must, as I see it, hold the price-fixing powers of the Act now under review unconstitutional, and reverse the decree of the lower court.

ON PETITION FOR REHEARING.