Moler v. Whisman

• Decision Date: 09 May 1912
• Citation: 147 S.W. 985,243 Mo. 571
• Parties: ARTHUR B. MOLER, Appellant, v. C. T. WHISMAN et al
• Court: Missouri Supreme Court

147 S.W. 985

243 Mo. 571

ARTHUR B. MOLER, Appellant, v. C. T. WHISMAN et al

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Affirmed.

Gage Ladd & Small for appellant.

(1) The barber law in question is void so far as it prohibits the students of a barber college or their teachers from charging for their services. 1st, because that law prevents them from the "enjoyment of the gains of their own industry," contrary to sec. 4, art. 2, of the Constitution, and is a special law regulating labor, contrary to sec. 53 of art. 4 of that document. State v. Granneman, 132 Mo. 326; Woolley v. Mears, 226 Mo. 41. 2nd, because the law does not also prohibit students or apprentices in barber shops or their teachers, the barbers, from charging for their services. The law is, therefore, obnoxious as "class legislation." There is absolutely no difference in the services performed by barber shop students and those performed by barber college students. None can be even imagined. One does his work in a place with the sign "Barber College" over the door and the other does the same work in a place with a red striped pole in front and the sign "Barber Shop" over the door. In order to learn the trade the students must themselves do the actual work of shaving and cutting hair, whether in a barber shop or a so-called barber college. Generally the barber college is bigger than the barber shop, but no doubt there are some barber shops that have more students and apprentices than some barber colleges. The law in question makes the legality of the thing done depend upon the place where it is done. Such legislation is void. State v. Walsh, 136 Mo 403; State v. Thomas, 138 Mo. 100; Woolley v Mears, 226 Mo. 41. (2) The regulations we complain of do not affect the health or any other public interest. These students in colleges are expressly authorized to work, but are simply prohibited from charging therefor. And furthermore, the act does not apply to cities of under 5,000 inhabitants. The students in a barber college in a city of less than 5,000 inhabitants, can charge, but those in larger cities cannot. This makes the law perfectly arbitrary. Woolley v. Mears, 226 Mo. 41. (3) It must be borne in mind that the proceeding which this action is brought to enjoin, was a proceeding by the Board of Barber Examiners to revoke the certificate which said Board had theretofore given to plaintiff's manager, Hackney, to practice his profession as a barber. It is not to cancel his permit or certificate to teach the trade of barbering in a barber college, because no special permit for that purpose is required by law. Persons or corporations operating or conducting a barber college are required to have a permit, and all teachers are required to be qualified barbers. Sec. 5042, R. S. 1899. Barbers as well as barber schools are required by this section to do and to refrain from doing certain things, but the board of barber examiners is not authorized to revoke any barber's license or certificate or to impose any other penalty upon him for violating the provisions of this section, but is authorized to revoke the barber's certificate of a teacher in a barber school for violating any of the provisions of the law, which would not only prevent him from teaching in a barber school, but would also prevent him from practicing his trade as journeyman or owner of a barber shop. Plainly this violates both the State and Federal constitutions. Barber v. Connelly, 113 U.S. 27; State v. Miksicek, 225 Mo. 561. (4) The purpose of this law in requiring students in barber schools to work two years without pay, before they could be qualified barbers, and to let students in barber shops charge for their services, was clearly intended to give barber shops a monopoly of teaching the barber business, for no one would go to a barber school for two years and pay tuition, and get nothing for his services, when he could learn the business in a barber shop in the same time and pay no tuition and get pay for his work besides. State v. Walker, 92 P. 776. (5) The law would still be unconstitutional if it were to be enforced equally against the barber and the barber school, because we deny the right of the legislature to select out barbers and barber's schools by themselves, and limit their right to employ and teach apprentices and students and fix the number of teachers to students or apprentices. This is special legislation of the worst sort. Loomis case, 115 Mo. 307; State v. Julow, 169 Mo. 163; State v. Ashbrook, 154 Mo. 390-6; In Re Dickey, 77 P. 924. (6) The right to employ apprentices and teach students is a fundamental right which could not, either by special or general legislation, be taken away as long as an American citizen is entitled to the protection of the due process of law, or the law of the land. State v. Tie Co., 181 Mo. 536. (7) The arbitrary provision of this law, that no other signs except "Barber College" or "Barber School" should be displayed in or about a barber college is void. No law could prevent the plaintiff from putting up the signs that he did, namely, free shaving and free hair cutting. This had no tendency to mislead the public as to his business. St. Louis v. Gunning, 137 S.W. 929.

Rheinhardt & Schisby for respondents.

(1) Only those whose rights are directly affected by a statute can attack the constitutionality of such act. State ex rel. v. McIntosh, 205 Mo. 589; Cunningham v. River Co., 165 Mo. 276; 8 Cyc. 788, 791, 993; State ex rel. v. Currens, 111 Wis. 431. (2) A statute does not violate sec. 28, art. 4 of the Constitution where all its provisions are germane to and naturally connected with the subject as stated in the title of the act. State ex rel. v. Vandiver, 222 Mo. 221; Ferguson v. Gentry, 206 Mo. 198; State v. Doerring, 194 Mo. 398; O'Connor v. Transit Co., 198 Mo. 639; Coffey v. Carthage, 200 Mo. 622. (3) The Legislature may, without violating sec. 1 of art. 4 of the Constitution, vest boards of examiners with power to investigate and decide upon the qualifications of applicants for licenses for occupations and professions directly affecting the public welfare. St. Louis v. Mfg. Co., 139 Mo. 56; State v. Doerring, 194 Mo. 398; State ex rel. v. Lutz, 136 Mo. 633; Ex parte McMonnis, 90 P. 702; Exchange v. Knott, 212 Mo. 635. (4) The State may regulate the occupation of a barber. Ex parte Lucas, 160 Mo. 218; State v. Zeno, 79 Minn. 80; State v. Sharpless, 31 Wash. 191. (5) Where natural classes exist by the very nature of their inherent conditions the Legislature may treat them as different classes and follow different policies with regard to them. No legislation is obnoxious as class legislation where all persons subject to it are treated alike under similar circumstances and conditions. White v. Railroad, 230 Mo. 287; Ins. Co. v. Daggs, 172 U.S. 557; State v. Darrah, 152 Mo. 522; State v. Whittaker, 160 Mo. 59; State v. Swagerty, 203 Mo. 517; 8 Cyc. 1063; Railroad v. May, 194 U.S. 267; State v. Webber, 214 Mo. 272. (6) And a classification made by the Legislature is not arbitrary when it would support an argument even though but a poor one. Bush v. Ins. Co., 116 N.Y.S. 1056; State v. Vandersluis, 42 Minn. 129; State v. Tower, 185 Mo. 79; People ex rel. v. Metz, 193 N.Y. 148. (7) All doubts must be solved in favor of the validity of the statute. State v. Weber, 214 Mo. 272; State v. Layton, 160 Mo. 489; Harmon v. Coal Co., 156 Mo. 242; State ex rel. v. Warner, 197 Mo. 656.

BROWN, J. Ferriss, P. J., and Kennish, J., concur.

OPINION

BROWN, J.

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

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

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

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

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

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

Plaintiff does not deny the acts charged against him by defendants, but...