Amitrano v. Barbaro

• Decision Date: 30 July 1938
• Docket Number: No. 606.,606.
• Citation: 1 A.2d 109
• Parties: AMITRANO v. BARBARO.
• Court: Rhode Island Supreme Court

1 A.2d 109

AMITRANO

v. BARBARO.

No. 606.

Supreme Court of Rhode Island.

July 30, 1938.

Case Certified from District Court, Sixth Judicial District, City of Providence; Maurice Robinson, Judge.

Private criminal complaint by Nicholas Amitrano against Philip Barbara, charging that defendant on the 16th day of February, 1938, did willfully practice the occupation of a barber after the hour of 7 o'clock in the afternoon on Wednesday, being a day other than Saturday, Sunday or the night before a legal holiday, contrary to statute and to the rules promulgated by the director of public health. On questions certified from District Court under Gen.Laws 1923, c. 348, § 1.

Questions answered.

Philip S. Knauer, Philip S. Knauer, Jr., and Knauer & Fowler, all of Providence, for complainant.

Emilio D. Iannuccillo, of Bristol, for defendant.

BAKER, Justice.

This is a private criminal complaint in which certain constitutional questions were raised by the defendant in the district court of the sixth judicial district, which court thereupon certified the case to this court under the provisions of general laws 1923, chapter 348, section 1 in order to have such questions determined.

The complaint charges, in substance, that the defendant, on the 16th day of February 1938, did willfully practice the occupation of a barber after the hour of seven o'clock in the afternoon on Wednesday, being a day other than Saturday, Sunday or the night before a legal holiday, or a legal holiday, contrary to the form of the statute and to the rules promulgated by the director of public health pursuant thereto.

Two questions were certified by the said district court. The first is as follows: "I. Are the provisions or any of the provisions of chapter 156, section 12 of the general laws of 1923, as amended by public laws 1934, chapter 2110, section 9 thereof; and further amended by public laws 1935, chapter 2222, section 2; and further amended by public laws 1935, chapter 2188, sections 1 and 7; and further amended by public laws 1935, chapter 2250, sections 110 and 113, and the rules and regulations for the governing of Barber Shops and Barber Schools in the State of Rhode Island, adopted by the State Department of Public Health, pursuant thereto, or any of said provisions unconstitutional and void, in that they are in conflict with Article 1, section 10 of the Constitution of Rhode Island, 'nor shall he be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land' and in violation of the rights of the defendant as derived from said constitutional provision in accordance with his motion to dismiss said complaint?" The second question is in form similar to the first, except that it raises the issue as to whether or not said statutes and rules are unconstitutional and void in that they are in conflict with Article 14, section 1 of the amendments to the constitution of the United States, U.S. C. A. Const. Amend. 14, § 1, namely, "* * * 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."

General Laws 1923, chap. 156, sec. 12, as amended by P.L.1934, chap. 2110, sec. 9, and further amended by P.L.1935, chap. 2222, sec. 2, reads as follows: "Sec. 12. No barber shop shall be open for business on the thirtieth day of May (as Memorial Day), the fourth day of July (as Independence Day), the first Monday of September (as Labor Day), the twenty-fifth day of December (as Christmas Day), and each of said days in every year, or when either of the said days falls on the first day of the week then the day following it, the first day of every week (commonly called Sunday), and such other day as the governor shall appoint as a day of Thanksgiving, and said board shall have power, after investigation and hearing, to make rules, regulations and orders prescribing the hours for the opening and closing of barber shops or schools in this state on days other than Sundays and said Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day." The board referred to in the above section is the board of examiners for barbers.

Public laws 1935, chap. 2188, which was the Reorganization Act, by its first section vested all the powers and duties then in the several state boards, in certain departments which were divided into divisions, the eleventh department being that of public health, the second division of which included the inspection of barber shops. By the seventh section of this last-named act all said powers and duties were, after its passage, to be exercised by the several directors of the several specified departments and divisions.

Public laws 1935, chap. 2250, known as the "Administrative Code Act", by sec. 110 provided that the director of public health should enforce the provisions of certain chapters of general laws 1923 as amended, one of said chapters being 156. By sec. 113 of said chapter 2250, it was provided that the division of inspection of the department of public health should have at least two registered barbers to inspect barber shops as to sanitation, and also to enforce the rules and regulations as prescribed under general laws 1923, chap. 156, sec. 12 as amended.

In pursuance of the power and authority given under the various acts hereinbefore referred to, the director of public health promulgated certain rules for the regulation of barber shops and barber schools. The alleged violation of one of such rules is the basis of the complaint in the instant case. This rule is in the following language: "28. Working hours: Monday to Friday 8:00 A. M. to 7 P. M. Saturdays or night before holidays 8:00 A. M. to 9 P. M. Curtains must be raised providing a clear view of the interior."

It may appear that the above rule is intended to limit the hours of labor per day of barbers, but it is clear, upon examination and consideration, that the real purpose and effect of the rule is to fix the hours of opening and closing of barber shops, and we have in this case interpreted and construed said rule as one intended to accomplish the latter purpose solely, particularly in view of the fact that such rule was made under the authority conferred by the provisions of sec. 12, supra, as amended and as above set out. Also, the questions raised herein have been briefed and argued by the parties on that theory. In this proceeding, therefore, we are not passing upon the validity of any statute or rule which, as such, clearly and definitely limits hours of labor or, in that sense, working hours for barbers. Further, no matters relating to registration, licensing, inspection or sanitation in connection with the barbering business are before us in the instant case.

The questions presented to us herein bring in issue the constitutionality of a portion of general laws 1923, chapter 156, sec. 12, as amended, and a portion of said rule 28 made thereunder. In performing our duty in this connection we have in mind the established principle often stated by this court that one questioning the constitutionality of a statute has the burden of proving such unconstitutionality beyond a reasonable doubt, and that this court will make every reasonable intendment in favor of the constitutionality of an act of the legislature. Prata Undertaking Co. v. Board of Embalming, 55 R.I. 454, 182 A. 808, 104 A.L.R. 389, and cases cited. Further, it is well settled that questions relating to the necessity, wisdom and expediency of a statute are for the legislature alone to determine, and not for the court. Prata Undertaking Co. v. Board of Embalming, supra; Creditors' Service Corp. v. Cummings, 57 R.I. 291, 190 A. 2.

Thus, in passing upon the constitutionality of the portion of the statute before us and the rule made under the authority of that statute, the power of the legislature is the question in issue. The authority of that branch of the government to act through the statute and rule involved in the instant case must, of course, be found in the police power. The complainant contends that the statute and rule constitute a valid and proper exercise of such power by the legislature. The defendant takes the contrary view.

It is recognized that the term "police power" is not easily defined and that it is broad and flexible in its scope. Its application may change from time to time to meet new conditions arising in business, society and government. The power, however, is not limitless, but must be exercised in such a way as to bear a real and substantial relation to public health, safety, morals or general welfare, in connection with the subject being dealt with. "To justify the state in thus interposing its authority in behalf of the public, it must appear—First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals." Lawton v. Steele, 152 U.S. 133, at page 137, 14 S.Ct. 499, 501, 38 L.Ed. 385.

Barbering, as such, is a legitimate and necessary business, and is primarily of a private character. However, in view of the fact that the general public come in physical contact with and require the personal services of those engaged in that business, it is well settled that it is one of the types of business which can and should be regulated, particularly for the protection of the public health. Such regulation commonly takes the form of the registration or licensing of barbers, and the enforcing of rules in connection with sanitation to insure cleanliness of the barber and of his shop, and to prevent the spread of disease. Statutes dealing with such and kindred matters have long been recognized as coming within the proper exercise of the state's police power, as touching public health. This court has approved...