Mundell v. Graph

• Decision Date: 30 July 1934
• Docket Number: 7677.
• Citation: 256 N.W. 121,62 S.D. 631
• Parties: MUNDELL v. GRAPH et al.
• Court: South Dakota Supreme Court

256 N.W. 121

62 S.D. 631

MUNDELL v. GRAPH et al.

No. 7677.

Supreme Court of South Dakota

July 30, 1934

Appeal from Circuit Court, Lawrence County; James McNenny, Judge.

Action by Harry S. Mundell against Len Graph, Jens Fosse, and Judson Miller, as the Board of Barber Examiners of the State, and others. From an order overruling a demurrer to the complaint defendants appeal.

Order reversed.

Walter Conway, Atty. Gen., and Herman L. Bode, Asst. Atty. Gen., for appellants.

John T Heffron, of Deadwood, for respondent.

CAMPBELL Judge.

Chapter 61, Laws South Dakota 1927, is commonly known as the Barber Act, and is entitled as follows: "An Act Entitled, An Act Regulating the Practice of Barbering, Defining Such Practice, Providing for a Board of Examiners and the Issuance of Certificates to Practice Barbering, and Providing Penalties for Violation."

Plaintiff resides in Deadwood in Lawrence county in this state, where for twenty-six years last past he has been engaged in the occupation of a barber, and where he continues to own operate, and conduct a barber shop. When chapter 61, Laws 1927, went into effect plaintiff complied with all the requirements of the act and of the barber board and paid all fees ($12) to entitle him to receive, and he did receive, a certificate as a registered barber pursuant to the provisions of the act.

Sections 14 and 17 of the original Barber Act (subsequently slightly modified by chapter 209, Laws 1931, in a fashion in no manner material to the decision of this case) are, respectively, as follows:

"Renewal and Restoration of Certificates. Every registered barber and every registered apprentice who continues in active practice or service, shall annually, on or before July 1, of each year, renew his certificate of registration and pay the required fee. Every certificate of registration which has not been renewed during the month of July in any year shall expire on the first day of August in that year. A registered barber or a registered apprentice whose certificate of registration has expired may have his certificate restored immediately, upon payment of the required restoration fee. Provided, however, that no certificate shall be renewed until the applicant shall have presented to the Board a certificate of health from a regularly licensed practicing physician, showing that such applicant is free from any infectious or contagious disease. Said certificate of health shall bear date of issue not more than ten days prior to date of application. * * *

"Fees. The fee to be paid by an applicant for an examination to determine his fitness to receive a certificate of registration to practice barbering is Ten Dollars ($10.00) and for issuance of the certificate Two Dollars($2.00).

"The fee to be paid by an applicant for an examination to determine his fitness to receive a certificate of registration to practice as an apprentice is Five Dollars ($5.00) and for the for the issuance of the certificate One Dollar ($1.00).

"The fee to be paid for the renewal of a certificate of registration to practice barbering is Five Dollars ($5.00) and for the restoration of an expired certificate is Seven Dollars ($7.00).

"The fee to be paid for the renewal of a certificate of registration to practice as an apprentice is Three Dollars ($3.00) and for the restoration of an expired certificate is Five Dollars ($5.00)."

Although plaintiff complied with the requirements of the statute at its inception and secured his certificate of registration, he did not, during or prior to the month of July, 1928, secure a renewal of such certificate, nor has he since done so, although he has at all times continued in his occupation of barbering.

After August 1, 1933, the board of barber examiners was insisting that plaintiff procure the renewal or restoration of his certificate if he continued to engage in the occupation of barbering and informed plaintiff (and others) that, if he continued in said occupation without procuring the restoration of such certificate, the board would cause proceedings to be instituted against him for unlawfully engaging in such business.

The barber board does not appear to be demanding that plaintiff, in order to secure a restoration of his certificate, retake the examination provided for in section 9 of chapter 61, Laws 1927, as amended by chapter 209, Laws 1931, but is demanding that plaintiff pay certain fees as a condition precedent to the restoration of his certificate. Whether the total fees demanded amount to $14 or to $19 is not entirely clear upon the record before us, nor is it entirely clear as to just how or upon what theory the barber board proceeds in computing the amount demanded. Plaintiff, however, does not seek to raise those precise questions in this case, and we need not here determine whether the amount demanded by the board from this plaintiff is the proper amount to be exacted under the law for the renewal of certificate of a barber who, though once registered, has continued meantime to practice barbering in this state for a period of several years without certificate. We mention the matter only to point out that we do not mean to pass directly or indirectly by any language in this opinion upon the question of whether the demanded fee is or is not correct in amount.

Plaintiff, as we have said, raises no question as to the amount of fee demanded. Neither does he claim that the board is requiring of him any fact showing that he is unable or unwilling to make with reference to his skill, experience, physical health, moral character, or otherwise. He refuses to procure the restoration of his certificate solely and entirely upon the broad ground that the whole Barber Act is unconstitutional, and that he is entitled as of right to engage in the occupation of barbering in this state without complying with the requirements of said act or any part thereof.

Under those circumstances, plaintiff refusing to comply with the act because he claimed it unconstitutional in toto and the board threatening to cause proceedings to be instituted against him for violation of the act, plaintiff commenced the present action asking that the state barber board and the state's attorney and sheriff of Lawrence county be permanently enjoined from enforcing the provisions of the Barber Act and from interfering with or arresting this plaintiff on account of his noncompliance therewith.

To plaintiff's complaint defendants demurred on the ground that it did not state facts sufficient to constitute a cause of action. This law issue coming on for disposition below, the learned trial judge, after hearing argument, duly made and entered an order overruling the demurrer, from which order the defendants have now appealed.

While it is true as a general rule that the validity of a statute creating a criminal offense cannot be determined by enjoining the commencement of a prosecution thereunder, nevertheless appellants appear to concede in the instant case that upon the allegations of the complaint respondent is entitled to at least a portion of the injunctive relief sought if the Barber Act be held unconstitutional. Cf. Joseph Triner Co. v. Shanks [1921] 43 S.D. 528, 180 N.W. 955; Minneapolis Brewing Co. v. McGillivray (C. C. 1900) 104 F.258; Knight v. Johns [1931]

161 Miss. 519, 137 So. 509. Both parties devote their briefs entirely to the matter of the constitutionality of the Barber Act, and we therefore pass directly to that question.

In this, as in every other case involving the constitutionality of legislative action, all reasonable intendments must be indulged in favor of the statute, which should be upheld unless its infringement of constitutional restrictions is so plain and palpable as to admit of no reasonable doubt. State ex rel. Botkin v. Welsh (1933) 61 S.D. --, 251 N.W. 189.

Respondent in his brief outlines his attack upon the statute in the following language:

"Respondent challenges the validity of the law on various grounds which are as follows:

"1. The act is invalid as it attempts to gain its legality as a measure authorized under the police power when in truth and in fact, it is not a measure entitled to be characterized as a police power law for its terms do not include any provisions necessary or needful for the proper protection of the health of the people of South Dakota.

"2. The act bears no such relation to the public health as will sustain it as a police or sanitary measure.

"3. The practice of barbering insofar as the public welfare and comfort, outside of, and beyond what is included in its claimed health and safety provisions, are so insignificant as not to lend color to any right claimed under the police power of the State as shown by the terms of the Act itself.

"4. That the Barber Board under the Law is not needful or necessary as the State, County, City and Town Boards of Health have full jurisdiction over barbers and barber shops and the law is not necessary as a sanitary or health measure.

"5. That the Barber Act violates section eight (8) and section nine (9) of article Eleven (11) of the Constitution of the State of South Dakota in that it is provided that no tax shall be levied except in pursuance of a law which shall distinctly state the object of the same to which the tax only shall be applied and that the tax levied and collected for State purposes shall be paid into the State Treasury.

"6. That said act violates section Two (2) of article Eleven (11) of the Constitution of the State of South Dakota in this that said tax is in violation of the provision that a tax may be levied for a public purpose while the law on its face shows its purpose is a private one for the establishing of a barber commission and the payment of compensation to the members thereof

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