Beaumont Barber College, Inc. v. Texas State Board of Barber Examiners

• Decision Date: 10 December 1969
• Docket Number: No. 11714,11714
• Parties: BEAUMONT BARBER COLLEGE, INC., et al., Appellants, v. TEXAS STATE BOARD OF BARBER EXAMINERS et al., Appellees. . Austin
• Court: Texas Court of Appeals

Page 498

448 S.W.2d 498

BEAUMONT BARBER COLLEGE, INC., et al., Appellants, v. TEXAS STATE BOARD OF BARBER EXAMINERS et al., Appellees.

No. 11714.

Court of Civil Appeals of Texas Austin.

Dec. 10, 1969.

Rehearing Denied Jan. 7, 1970.

Carl R. Griffith, Beaumont, for appellants.

Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Pat Bailey, Acting Executive Asst. Atty. Gen., J. C. Davis, John H. Banks, Asst. Attys. Gen., Austin, for appellees.

HUGHES, Justice.

This suit is brought by the Beaumont Barber College, Inc. and J. C . Quinn against the Texas State Board of Barber Examiners its executive secretary, O. W. McStay, and the members of such Board in the nature of an appeal from an order of the Board revoking a permit previously issued to the Beaumont Barber College Branch, located at 3246 Avenue A, Beaumont, Texas.

Mr. J. C. Quinn was present of Beaumont Barber College, Inc.

The original permit was issued by the Board to the Beaumont Barber College Branch on August 28, 1959. It has operated continuously since such time.

When the original permit was issued and ever since the College Branch had and has had 1000 feet of floor space, twelve barber chairs and twelve class room chairs. The law in effect at that time did not specify how many square feet of space or the number of barber or class room chairs required for the operation of a barber college, nor did such law require the renewal of a permit once issued. ¹

In 1961 Art. 734a, Vernon's Tex.P.C., was amended ² so as to provide in Sec. 9(c)(1)(3)(8):

'(c) No barber school or college which issues 'Class A' certificates shall be approved by the Board for the issuance of a permit unless said school or college has the following:

(1) An adequate school site housed in a substantial building of a permanent-type construction containing a minimum of not less than two thousand, eight hundred (2,800) square feet of floor space. * * *

(3) A minimum of twenty (20) modern barber chairs with cabinet and mirror for each chair.

(8) At least twenty (20) classroom chairs, * * *.'

Appellants' permit to operate the Beaumont Barber College Branch at 3246 Avenue A, Beaumont, was revoked by the Board upon its findings that appellant had violated the above quoted provisions of Sec. 9 of Art. 734a, P.C. On appeal to the court below, this action was sustained.

It is undisputed that appellants' Barber College Branch has only 1000 square feet of floor space and twelve barber and twelve class room chairs. Upon the basis of these facts alone, the Board revoked appellants' permit. If the quoted provisions of the 1961 amendment of Art. 734a, P.C., are valid and applicable to appellants then the judgment of the trial court must be affirmed.

It is our opinion that the quoted portions of paragraphs (1)(3) and (8) of sub. (c), Sec. 9 of Art. 734a are not valid and if valid are not applicable to appellants.

Our reason for holding these portions of the statute invalid is that they constitute an unreasonable exercise of the police power of the State by the Legislature.

We quote from the testimony of Mr. McStay, the executive secretary of the Board:

'MR. GRIFFITH: * * * Will you please tell me now, if you will, wherein the enforcement of this law with respect to the having of 2800 sq. ft. in a barber college would enhance or protect or relate to or affect the public health, safety and welfare or morals of the great State of Texas? In your opinion.

MR. McSTAY: I don't think that the square footage is that pertinent to the school, but it is the law.

MR. GRIFFITH: Well, do you see any * * * do you see any relationship between public health, welfare, safety or morals in requiring 2800 square feet of floor space for a barber college?

MR. McSTAY: There could be, yes.

MR. GRIFFITH: In what respect? Please tell us.

MR. McSTAY; It all would depend on crowded conditions or how many * * * in other words, as far as the teaching of barbering, no; you could probably teach it on one chair. I think it could be done that way * * * it could be done with one chair properly equipped, you could teach anyone barbering. So therefore the 20 chairs or the 2800 sq. ft. might not be pertinent to the thing but it's our interpretation that the law requires it.

MR. GRIFFITH: And in your opinion then it isn't necessarily related to public health. You can have a sanitary shop with 1,000 sq. ft. just as readily as you can operate a sanitary shop in 2800 sq. ft. Is that not correct?

MR. McSTAY: Yes, sir.

MR. GRIFFITH: And you can effectively teach barbering in 12 chairs I believe you testified Mr. Quinn has. * * *

MR. McSTAY: Yes, sir.

MR. GRIFFITH: * * * Just as effectively as you can with a minimum of 20 chairs, can you not?

MR. McSTAY: It's possible. It's possible.

MR. GRIFFITH: All right, sir, so wouldn't you say that a man * * * that this requirement of 12 chairs * * * of a minimum of 20 chairs does not have any direct bearing on public health, safety or welfare?

MR. McSTAY: Yes, I would say that.

MR. GRIFFITH: All right, sir. I'll ask you whether or not 20 chairs in a classroom is essential to the public health, safety and welfare of this State?

MR. McSTAY: I'm sorry; I didn't catch * * * did you say, is it essential?

MR. GRIFFITH: Yes.

MR. McSTAY: No.

MR. GRIFFITH: It is not. All right, sir. Well, these are the only charges against Mr. Quinn, that he has violated. Is that not correct?

MR. McSTAY: To my knowledge.

MR. GRIFFITH: Mr. McStay, the teaching of barbering is primarily a practicing art, is it not?

MR. McSTAY: The practical part, yes, sir.

MR. GRIFFITH: You can read a book from now on and talk about it from now on but you've got to practice it to develop the skill. Is that correct?

MR. McSTAY: That is correct, sir.

MR. GRIFFITH: Would you say that manual dexterity is a greater part of barbering and artistic aptitude perhaps than is the capacity to learn or high intelligence?

MR. McSTAY: Well, I think there's a certain amount of talent involved. I think anyone could go in and learn to just cut the hair off but to groom a person properly, I think it takes a certain type of talent or intelligence.

MR. GRIFFITH: Artistic aptitude, we'll say.

MR. McSTAY: Exactly.

MR. GRIFFITH: But general intelligence is not a prerequisite to becoming a skillful barber, is it?

MR. McSTAY: Not necessarily so, sir.

MR. GRIFFITH: All right, sir, then the primary objective of these controls and the primary objective of your schools is to turn out a barber who practices for sanitary habits on the general public, is that not right?

MR. McSTAY: Yes, sir.

MR. GRIFFITH: And secondly, who practices a reasonable degree of proficiency in cutting hair. Is that not right?

MR. McSTAY: That's two of the requirements, yes, sir.

MR. GRIFFITH: All right, sir. And so to do this * * * in order to do this, you must have people upon whom to practice. Is that nor correct?

MR. McSTAY: That'd be correct, yes, sir.'

Appellant testified that his investment in the Barber College Branch was about $16,000.00, which, less some salvage, he will lose if his permit remains revoked. He leases the building in which the college is now located and he has no way of enlarging it.

Appellees cite Gerard v. Smith, 52 S.W.2d 347, Tex.Civ.App., El Paso, writ ref. (1932) which holds that the regulation of the occupation of barbering was a valid exercise of the police power. In so holding, the Court stated:

'We are of the opinion that there can be no serious question but there there is danger of infection to the public from the carelessness and unskillfulness of barbers and from unsanitary methods of performing the functions of that occupation. The infection may be communicated from the barber himself to the customer or from one customer to another. Therefore the regulation of the occupation is proper for the protection of the health of the public and, consequently, a proper subject for the exercise of the police power.'

The legislative act there upheld was the State Barber Law enacted by the 41st Legislature, Acts 1929, 1st C.S., p. 166, ch. 65. This act had no provision in it pertaining to the size of quarters for a barber school or to the number of chairs required.

We know of no better way to state the rules governing our decision on the validity of these portions of Art. 734a, P.C. than to quote again the authorities upon which we relied in Martin v. Wholesome Dairy, Inc., 437 S.W.2d 586, Tex.Civ.App., Austin, writ ref. n. r. e . (1969) where a similar constitutional question was before us. We quote from that opinion:

'On the other hand appellants contend that Art. 713a is a valid exercise of police power by the Legislature. This power is an attribute of sovereignty, not derived from the Constitution but is the inherent power of the State to protect the peace, health, happiness, and general welfare of the people. Constitutional Law, 12 Tex.Jur.2d, Sec. 70, p. 415.

We make the following quotations in order to authoritatively define the scope of our inquiry herein.

'In passing upon the constitutionality of a statute, we begin with a presumption of validity. It is to be presumed that the Legislature has not acted unreasonably or arbitrarily; and a mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or...