Barbers Commission of Mobile County v. Hardeman

• Decision Date: 27 February 1945
• Docket Number: 1 Div. 486.
• Citation: 21 So.2d 118,31 Ala.App. 626
• Parties: BARBERS COMMISSION OF MOBILE COUNTY v. HARDEMAN.
• Court: Alabama Court of Appeals

21 So.2d 118

31 Ala.App. 626

BARBERS COMMISSION OF MOBILE COUNTY v. HARDEMAN.

1 Div. 486.

Alabama Court of Appeals

February 27, 1945

W C. Taylor and McCorvey, McLeod, Turner & Rogers, all of Mobile, for appellant.

Wm. G. Caffey, of Mobile, for appellee.

BRICKEN Presiding Judge.

The law creating a barber's commission in Mobile County, Alabama defines barbers and regulates and licenses them and barbers commissions in said county. This is a local act found in Local Acts of Alabama 1935, page 180.

Section 2 of that act defines a barber as any one, 'who, for a valuable consideration or hire, shaves or trims the beard gives facial or scalp massages, or treats the same with oils or other preparations, singes, shampoos, cuts or dyes the hair of a human being, or applies hair tonic or other cosmetic preparations, clays, or lotions to the scalp, neck or face, or engages in the teaching of any person or persons in the art of barbering as in this paragraph defined.'

A literal construction of this statute makes one who applies hair tonic a barber.

Section 3 of the Act provides that the Governor shall appoint a commission composed of three persons, each of whom must have had at least five years' experience as a barber and who must have been a resident of Mobile County for three years.

In Section 4 of this Act the commission is empowered to issue licenses, 'to persons of good moral character, who have an elementary school education, or its equivalent in the judgment of the Commission, and shall be at least 18 years of age, and have practiced as an apprentice for a period of at least one year and pass a satisfactory examination conducted by the Commission.'

The Act also provides that if the commission determines that any applicant is not qualified to receive a license, the findings of the commission may be appealed to the circuit court of the county, and any cause so appealed shall be tried de novo in the circuit court.

The appellee applied for a license. He undertook to stand examination. The commission ruled that he failed to pass the examination and denied his application. He appealed to the circuit court and, after a very lengthy hearing in that court, the learned trial judge in a carefully written opinion ruled that the appellee was entitled to a license. From that ruling the barber commission prosecutes an appeal.

There are several assignments of error involving rulings of the trial court on the admission of evidence and other matters that we do not regard as controlling on this appeal.

When an attempt is made to deny a citizen the right to follow the occupation of a barber because he does not have an elementary school education or its equivalent,--in the judgment of a commission,--it is time for the judge who is called upon to pass upon the validity of action of that kind to recall that he has taken an oath to support the Constitution of the United States and the Constitution of the State of Alabama, and that the court has the responsibility of protecting the exercise of civil rights vouchsafed to every citizen in the bill of rights.

We first notice the alleged examination it is claimed that the appellee failed to pass. We note that the examination paper contains 50 questions, many of which, in our opinion, cannot possibly throw any light on whether a man is qualified to follow the occupation of a barber. We agree with the learned trial court that the applicant is a man of good moral character according to the record in this case. No one questioned his character in the court below. For 25 or 30 years, he has followed the occupation of a barber. During that time, on several occasions for a period of time, he ceased to be a barber and worked for the telephone company as an electrician, but he has had many years of actual experience as a barber. For practically three years preceding the hearing in the court below, he plied his trade as a barber under permit of the Barber's Commission of Mobile, Alabama, and at Brookley and Bates Field, where no license was required. His work was satisfactory in all respects.

In the record is a letter reading as follows:

'Headquarters

'Army Air Base

'Bates Field, Mobile, Alabama

'(Sub-Base of the Army Air Base, Brookley Field, Alabama)

'22 December 1943

'To Whom It may Concern:

'Mr. George Hardeman operated the barber shop at Bates Field, Mobile, Alabama, for several months in an efficient and highly satisfactory manner. The barber shop was operated in compliance with all Military regulations as to sanitation.

'Mr. Hardeman has proven to be a skilled workman in his profession. The work he did here was a definite contribution to the appearance and morale of the Military forces.

'Armand J. Murphy

'Armand J. Murphy

'2nd Lt. Air Corps

'Donald J. Breezger Joseph T. Barry

'1st Lt. A. C. 2nd Lt. QMC

'Carlos N. Harbour Sanford C. Grover

'2nd Lt. A. C. 2nd Lt. A. C.'

In addition to that, a number of appellee's patrons, and a barber for whom he worked for a considerable period of time, testified that he is duly qualified by experience to follow the occupation of a barber and that he had practiced that trade in a sanitary and satisfactory manner.

The only reason assigned by the Barber's Commission of Mobile for refusing him a license was that he did not meet the educational requirements of the Act. The commission endeavored to ascertain whether he met the educational requirements of the Act by propounding him questions along this line: Q. What is science? Q. What is art? Q. Too many of our practitioners live in the yesteryear. Too many feel they know what? Q. During the year 1745, marked the decline of what? Q. In order that we may know how you take care of our hair and scalp scientifically we should know what? Q. How many varieties of hair are there? Q. What is essential to good health? Q. What is alopecia areta? Q. How many stripes are...