Board of Barber Examiners of Louisiana v. Parker

• Decision Date: 30 May 1938
• Docket Number: 34517
• Citation: 182 So. 485,190 La. 214
• Court: Louisiana Supreme Court
• Parties: BOARD OF BARBER EXAMINERS OF LOUISIANA v. PARKER

182 So. 485

190 La. 214

BOARD OF BARBER EXAMINERS OF LOUISIANA v. PARKER

No. 34517

Supreme Court of Louisiana

May 30, 1938

Original Opinion of March 7, 1938, Reported at 190 La. 214.

HIGGINS Justice.ODOM, J., dissents and adheres to his original opinion.O'NIELL, Chief Justice (dissenting on rehearing).

OPINIONOn Rehearing.

HIGGINS Justice.

These two cases presenting a single question of law i. e., whether or not Section 12 of ActNo. 48 of 1936, generally known as the Barber Act is constitutional, were consolidated in this Court.

August Guchereau, who resides in the City of New Orleans and operated a barber shop there, was charged with violating Section 12 of ActNo. 48 of 1936 for performing barber services at prices less than the minimum prices fixed by the Board of Barber Examiners, in accordance with the provisions of the above statute.He filed a demurrer to the information on the ground that Section 12 of the Act and the regulations of the Board adopted thereunder were unconstitutional for the following reasons:

(1) That it attempts to fix the price of manual labor contrary to Section 7 of Article 4 of the Constitution of the State of Louisiana of 1921, which provides that "no law shall be passed fixing the price of manual labor."

(2) That it contravenes the provisions of Section 2 of Article 1 of the Constitution of 1921 of the State of Louisiana, which states that "no person shall be deprived of life, liberty or property, except by due process of law"; and the Fourteenth Amendment to the Constitution of the United States, U.S.C.A.Const. Amend. 14, which provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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."

The trial judge overruled the demurrer holding that Section 12 of the statute and the regulations of the Board based thereon were constitutional.The accused reserved a bill of exception.

On the trial of the case on the merits, it was shown that the Board of Barber Examiners, in accordance with the provisions of Section 12 of ActNo. 48 of 1936, upon the application of more than 75% of the barbers in the Orleans judicial district, fixed the minimum prices of 15 cents for a shave and 35 cents for a hair cut, and that the defendant, although apprised of the Board's regulations charged less than these minimum prices for that type of barber work.It was admitted that he was a duly licensed and qualified barber, in accordance with the laws of this State and the rules and regulations of the Board of Barber Examiners.It was not charged or proved that his shop was in an unsanitary condition.

The defendant was convicted and sentenced.He appealed.

In the other case, Noah E. Parker, a resident of Bernice, Union Parish, Louisiana, operated a barber shop there.It was shown that he was duly licensed and qualified under the laws of the State and the rules and regulations of the Board of Barber Examiners, and that he complied with the sanitary regulations.It also appears that the Board, upon the application of more than 75% of the barbers in the Third Judicial District, which included Union Parish, adopted minimum prices of 40 cents for a hair cut and 25 cents for a shave, and although Parker was notified by the Board of this regulation and complied with it for a short while he, subsequently, deliberately and intentionally violated its rule by charging 25 cents for a hair cut and 15 cents for a shave.He was notified by the board to desist from this practice but disregarded its admonitions.He was then called before the Board for practicing the barber trade in violation of the Board's rules and regulations, but, upon the trial failed to appear.The Board then suspended his license for six months and ordered him to discontinue his business.He again disregarded its instructions and the Board, under Section 8 of ActNo. 48 of 1936 petitioned the district court for an injunction to restrain the defendant from practicing the barber trade or business.He was also charged in an information with having violated Section 12 of ActNo. 48 of 1936 in performing barber services for less than the minimum prices adopted by the Board.In both the injunction or civil suit and the criminal proceeding he pleaded the unconstitutionality of Section 12 of the statute and the regulations adopted thereunder by the Board fixing minimum prices on the same grounds urged by August Guchereau, defendant in the other case.

The injunction matter was tried and the trial judge, holding that Section 12 of the statute was unconstitutional, refused to grant the injunction.The Board appealed.

The criminal prosecution against Parker is still pending in the district court awaiting the final decision of this case.

We held originally that Section 12 of ActNo. 48 of 1936 and the regulations of the Board adopted thereunder were unconstitutional, being in violation of the due process clauses of the Federal and State Constitutions.We granted the applications for rehearings and the cases are before us for further consideration.

The title of the statute reads:

"To regulate and control the Barber Industry, and for that purpose to further enlarge the present powers of the Board of Barber Examiners; defining its additional jurisdiction, powers, and duties; to approve agreements from each Judicial District; and providing penalties for violation of this Act."

In Section 1, the Legislators declared:

"Be it enacted by the Legislature of Louisiana, That this Act is enacted in the exercise of the police power of this State and its purposes generally are to protect the public welfare, public health and public safety.

"It is hereby declared that unfair, unjust, destructive, demoralizing and uneconomic trading practices have been and are now being carried on in the operation of barber shops in the State of Louisiana, and that unfair competition exists between the individual barbers of this State to the extent that prices have been reduced by such unfair competition to the point where it is impossible for an average barber, although working regularly, to support and maintain reasonably safe and healthful barbering services to the public.

"That such conditions constitute a menace to the health, welfare and reasonable comfort of the inhabitants of this State, and tend to the transmission of disease.

"That as the barber business affects the health, comfort and well-being of our citizens, and of the public which patronizes the barbers of the State of Louisiana, in order to promote the public welfare, health and safety, and to prevent the transmission of disease, in view of the personal touch and contacts manifested and exercised in the barber business, and the need for well-nourished, strong and healthy persons to engage in the barber business, the barber profession is hereby declared to be a business affecting the public health, public interest and public safety.

"That the present acute economic condition, being in part the consequence of a severe and increasing disparity between the prices of barber work and other commodities, which disparity has largely destroyed the purchasing power of barbers for industrial and sanitary products so necessary in the operation of their business, has broken down the orderly performing of the duties of the barbering profession and has seriously impaired and injured the public health and safety.

"That the danger to the public health, safety welfare is immediate and impending, the necessity urgent, and such as will not admit of delay in public supervision and control in accord with the proper standards of the barber profession.The foregoing statement of fact, policy and application of this Act are hereby declared as a matter of legislative determination."

Section 4 of the Act expressly declares that the Board of Barber Examiners is the instrumentality of the State to carry out the purposes of the Act.

Section 8 of the statute, in addition to any other remedy, gives the Board authority to apply to a court of competent jurisdiction for relief by injunction.This same section also makes the violation of the provisions of the Act or any rule of the Board a misdemeanor punishable by fine or imprisonment.

Section 12 provides:

"Order Fixing Prices of Barber Work:

"(a) That 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% of the barbers of each Judicial District, after ascertaining by such investigations, and proofs as the condition permits and requires, 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,...