Arnold v. Bd. of Barber Examiners

• Citation: 109 P.2d 779,45 N.M. 57
• Decision Date: 15 January 1941
• Docket Number: No. 4571.,4571.
• Parties: ARNOLDv.BOARD OF BARBER EXAMINERS et al.
• Court: Supreme Court of New Mexico

45 N.M. 57

109 P.2d 779

ARNOLD

v.BOARD OF BARBER EXAMINERS et al.

No. 4571.

Supreme Court of New Mexico.

Jan. 15, 1941.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Suit by C. M. Arnold against the Board of Barber Examiners of New Mexico and others, as members of the Board, for a declaratory judgment upon the constitutionality of the Barbers Price Fixing Act, Laws 1937, c. 230. Judgment for defendants, and plaintiff appeals.

Affirmed.

The statute authorizing the Board of Barber Examiners to approve minimun price agreements submitted by organized groups of 75 per cent. of barbers in each judicial district is not violative of constitutional requirement that legislature enact laws to prevent “trusts, monopolies and combinations in restraint of trade”. Laws 1937, c. 230, § 12; Const. art. 4, § 38.

Hervey, Dow, Hill & Hinkle, of Roswell, for appellant.

Fred J. Federici, Asst. Atty. Gen., and C. R. McIntosh, of Santa Fe, for appellees.R. F. Deacon Arledge, of Albuquerque, amicus curiae (appellees).

MABRY, Justice.

The principal issues raised upon this appeal may be stated to be, in substance: (1) Does the legislature have the power to establish a minimum price for the personal services involved in barber work in an attempt to protect and safeguard public health, and (2) Does the legislative act in question amount to an unconstitutional delegation of legislative power to the Barber Board? Another minor and incidental issue will also be noticed.

A suit for declaratory judgment was instituted by appellant in the District Court of Santa Fe county against appellees, composing the Board of Barber Examiners of the State, seeking a declaratory judgment upon the constitutionality of a legislative act, sometimes called the Barbers Price Fixing act, being Chapter 230, Laws of 1937. Section 12 of the act, which is particularly involved in this suit, provides:

“Section 12. Order Fixing Prices of Barber Work. (a) The Board shall have the power to approve price agreements establishing minimum prices for barber work, signed and submitted by any organized groups of at least 75 per cent of the barbers of each judicial district, after ascertaining by such investigations and proofs as the conditions permit and require that such price agreement is just and, under varying conditions, will best protect the public health and safety by affording a sufficient minimum price for barber work to enable the barbers to furnish modern and healthful services and appliances, so as to minimize the danger to the public health incident to such work.

“The Board shall take into consideration all conditions affecting the barber profession in its relation to the public health and safety.

“In determining reasonable minimum prices, the Board shall take into consideration the necessary costs incurred in the particular judicial district in maintaining a barber shop in a clean, healthful and sanitary condition.

“(b) The Board, after making such investigation, shall fix by official order the minimum price for all work usually performed in a barber shop.

“(c) That if the Board after investigation, made either upon its own initiative or upon the complaint of a representative group of barbers, determines that the minimum prices so fixed are insufficient to properly provide healthful service to the public and keep the shops sanitary, then the Board from time to time shall have authority to vary or re-fix the minimum prices for a barber's work in each judicial district.”

The complaint of appellant alleges that appellees, as members of the Barber Board, had previously issued an order under the provision of said section 12 of the act, fixing minimum prices to be charged by barbers in the fifth judicial district wherein appellant's place of business is located. He attacks the order as being invalid and without force because of its unconstitutionality. He says (a) that he is deprived of his lawful right to pursue his lawful business as a barber and the right to contract for personal services, all in violation of the constitution; (b) that said statute which purports to empower the Board to fix minimum prices to be charged by barbers is unconstitutional as a denial of equal protection and due process of law, and as an improper restraint on freedom of contract; (c) that section 12 of the act violates section 18 of article II of the Constitution of New Mexico, this being the due process and equal protection of the law provision; (d) that the provisions of said section likewise violate the 14th Amendment to the Constitution of the United States; (e) that said provisions also are violative of section 38, article IV of the New Mexico Constitution imposing upon the State Legislature the duty of enacting laws to prevent trusts, monopolies and combinations in restraint of trade; and finally, (f) that the said section represents an unlawful delegation of legislative power by authorizing the said Board of Barber Examiners to fix a minimum price for barber work.

[1] It will be conceded that a justiciable controversy is presented by the pleadings and that plaintiff, by his complaint, shows himself entitled to a declaration of the law upon the questions presented.

The case was tried by the court upon the complaint, answer, reply and evidence submitted under these pleadings, judgment was entered for defendant Board and plaintiff appeals.

[2] It will be well first to consider the facts found by the court and which are supported by substantial evidence, and thus not to be disturbed, and the conclusions of law announced. The findings of fact are as follows:

That the persons engaged in barber work have a personal contact with such proportion of the public as patronize them, and have an opportunity and ability to spread and transmit diseases.

That the matter of fixing prices for barber work has a direct relationship to the sanitary condition of barber shops and the sanitary habits of the operators therein; and that if said persons engaged in barber work do not receive adequate prices for their services, a direct and adverse effect will result on the sanitary condition of barber shops and the sanitary habits of the operators therein detrimental to the health and safety of such proportion of the public as patronize them.

That in the fifth judicial district it is economically impossible for the barbers therein to comply with the sanitary rules and regulations of the Board of Barber Examiners and the laws of the state of New Mexico if they should be permitted to do barber work at prices below the minimum prices set by the Board.

[3] The testimony offered on behalf of appellees had to do with the additional cost imposed upon shop operators by the sanitary rules and regulations invoked under authority of the clearly expressed requirements of the statute, and was to the effect that where lower prices than the minimum of 25¢ for a shave and 50¢ for a hair-cut were charged, economies were affected at the expense of sanitary and health considerations. It was necessary, of course, to show, and the court held that appellees did in fact show, a direct connection between the prices charged for barber work in the district in question and the maintenance of healthful and sanitary conditions in the shops.

Following the findings the court adopted brief conclusions of law holding that the means selected by the legislature, to wit, the fixing of minimum prices in the barber industry, has a real substantial and reasonable relation to the maintenance of sanitary conditions; that the statute does not violate section 18 of article II or section 38 of article IV, of the New Mexico Constitution, nor the 14th Amendment to the Constitution of the United States, and that said act does not constitute an unlawful delegation of legislative power to the Board of Barber Examiners.

The main points relied upon by appellant, though grouped separately as hereinbefore pointed out, may well be considered under three principal headings. Under the first will be discussed the question of freedom of contract and violation of the due process and equal protection clauses; under the second we consider the question of unlawful delegation of legislative power; and under the third we will discuss the question of whether the act in question promotes monopolies and unlawfully restrains trade.

Upon the first point, appellant relies principally, though not exclusively, upon five cases to sustain his position. They are: State v. Greeson, 174 Tenn. 178, 124 S.W.2d 253; Duncan v. City of Des Moines, 222 Iowa 218, 268 N.W. 547; City of Mobile v. Rouse, 27 Ala.App. 344, 173 So. 254; Id., 233 Ala. 622, 173 So. 266, 111 A.L.R. 349; Ex parte Kazas, 22 Cal.App. 2d 161, 70 P.2d 962.

Appellees rely upon the holdings in the following cases: West Coast Hotel Company v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330; Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; Board of Barber Examiners v. Parker, 190 La. 214, 182 So. 485; Herrin v. Arnold, 183 Okl. 392, 82 P.2d 977, 119 A.L.R. 1471; and the following subsequent cases from Oklahoma following the Arnold decision, viz.: Jarvis v. State Board of Barber Examiners et al., 183 Okl. 527, 83 P.2d 560; Vandervort et al. v. Keen, 184 Okl. 121, 85 P.2d 405; Ex parte Herrin, Okl.Cr.App., 93 P.2d 21; and, State v. McMasters, 204 Minn. 438, 283 N.W. 767; State v. Fasekas, 223 Wis. 356, 269 N.W. 700, 701; Miami Laundry Co. v. Florida Dry Cleaning Board, 134 Fla. 1, 183 So. 759, 119 A.L.R. 956; Florida Dry Cleaning Board v. Everglades Laundry, 137 Fla. 290, 188 So. 380; Townsend v. Yeomans, 1937, 301 U.S. 441, 57 S.Ct. 842, 81 L.Ed. 1210.

Appellees urge that all persuasive force of the foregoing cases relied upon by appellant is lost when we consider that these decisions relied upon the doctrine established in the United States Supreme Court in the case of Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct....