Brown v. Watson

• Citation: 116 Fla. 56,156 So. 327
• Parties: BROWN v. WATSON, Constable.
• Decision Date: 01 August 1934
• Court: Florida Supreme Court

156 So. 327

116 Fla. 56

BROWN v. WATSON, Constable.

Florida Supreme Court

August 1, 1934

En Banc.

Original habeas corpus proceedings by Lucile Brown against W. A Watson, as Constable of the Eighth Judicial District of Leon County.

Petitioner remanded to the custody of W. A. Watson to be dealt with according to law.

COUNSEL

J. H. Harrell, of Tallahassee, for petitioner.

B. K Roberts, Weldon G. Starry, and H. H. Wells, all of Tallahassee, for respondent.

OPINION

BUFORD Justice.

In this case the petitioner, Lucile Brown, sued out writ of habeas corpus alleging that she was unlawfully held in the custody of one W. A. Watson, as constable of the Eighth judicial district of Leon county, Fla., under a warrant issued by Hon. W. H. Powell, justice of the peace, in the following language:

'In the Name of the State of Florida, to the

Sheriff or any Constable of said County:

'Whereas Clinton Wallace has this day made oath before me that on the 18th day of April A. D. 1934, in the County and District aforesaid, one Lucile Brown did a misdemeanor commit, to-wit: did operate a barber shop without said shop being under the direct supervision and management of a registered barber or registered barber teacher, in violation of chapter 14650 of the Acts of 1931, and which is generally known as the 'Florida Barber Law,' contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Florida.

'These are, therefore, to command you to arrest instanter the said Lucile Brown and bring her before me to be dealt with according to law.

'Given under my hand and seal this 25th day of May, A. D. 1934.'

The respondent filed his return alleging that he held the petitioner under the warrant referred to in the petition. He alleged that said warrant was issued out of the justice of the peace court of the Eighth justice district of Leon county on affidavit duly filed in such court, and attached to his return and made a part thereof a stipulation of facts signed by attorney for petitioner and by the attorneys for respondent. That stipulation of facts is in the following language:

'It is herein and hereby stipulated by and between counsel for petitioner and counsel for respondent that the facts pertinent to the transaction involved in this suit are as follows:

'1. That on the 18th day of April, A. D. 1934, in the Eighth Judicial District of Leon County, Florida, Lucile Brown operated a shop, generally known and identified as a beauty shop, but in which place the following services were rendered to any female patron who might come to said shop.

'(a) Trimming or bobbing the hair.

'(b) Facial and scalp massages or treatments with oil, cream, lotions or other preparations.

'(c) Singeing, shampooing or dying the hair or applying hair tonics.

'(d) Applying cosmetics, antiseptics, powder, oil, clay or lotions to scalp, face or neck.

'(e) The manicuring, coloring or polishing of finger-nails.

'2. That the said shop operated by the said Lucile Brown is not under the direct supervision and management of a registered barber or registered barber teacher and that no employee of said shop is a registered barber or registered barber teacher and that the said Lucile Brown refuses to recognize, abide by and comply with the regulations set forth by the Florida Barber Law.

'3. That the said Lucile Brown contends and offers as the sole defense to this prosecution the statement that she is a person practicing beauth culture and is exempt from the operation of the Florida Barber Law and its regulations by virtue of section 4(d) of said law.

'4. That on the 18th day of April, A. D. 1934, upon the entry and examination of said shop by Clinton Wallace, a representative of the State Board of Barber Examiners of Florida, that the said Lucile Brown was at that time engaging in the trimming of the hair of one Josephine Harrell.

'5. That the operation of said shop is continuous from day to day.

'6. That prior to April 18, A. D. 1934, the petitioner Lucile Brown, had been warned by the State Board of Barber Examiners of Florida. that she was violating the laws of the State of Florida, and that they had exhibited to her a copy of the opinion of the Attorney General of Florida, Cary D. Landis, the contents of which was to notify beauty culturists that in his opinion the cutting of hair and other functions ordinarily performed by a barber shop, without the regulations of the Florida Barber Law, constitutes a criminal offense.

'7. That the beauty shop of the petitioner is open to children under twelve years of age, both male and female, and while said shop does not cater to men patrons, it would accept male patrons for the purposes of trimming the hair, facial and scalp massages or manicuring the finger nails.'

It appears to us that it is not necessary to do more than consider the language of the warrant, together with the stipulation of facts, to reach a determination in this case.

The petitioner was prosecuted for violation of section 1 of chapter 14650, Acts of 1931. That act, in section 2 thereof, defines 'barber' in the following language:

'Section 2. Any one or any combination of the following practices (when not done for the treatment of disease or physical or mental ailments and when done for payment ei ther directly or indirectly or without payment for the public generally) constitutes the teaching and practice of barbering.

'Shaving, or trimming the beard or cutting or bobbing the hair.

'Facial and scalp massages or treatments with oils, creams, lotions or other preparation.

'Singeing, shampooing or dyeing the hair or applying hair tonics.

'Applying cosmetic preparations, antiseptics, powders, oil, clay or lotions to scalp, face or neck; and

'For the purpose of this Act and as used herein the term 'barber shop' is hereby defined to embrace and include any establishment or place of business wherein the practice of barbering as hereinabove defined is engaged in or carried on.'

The petitioner contends that she is exempt from the provisions of the act because of the exemption set forth in subparagraph (d) of section 4 of the act. This provision is: 'The provisions of the Act shall not be construed to apply to: * * * (d) Persons practicing beauty culture.' Unfortunately for the petitioner, the act did not define 'beauty culture,' and, therefore, we are without a guide to direct us in determining what the legislative intent was when it used the words 'persons practicing beauty culture.' Certainly it did not mean that the practice of beauty culture included 'shaving, or trimming the beard or cutting or bobbing the hair.' Nor did it mean 'facial and scalp massages, or the treatments with oils, creams, lotions or other preparations.' Nor did it mean 'Singeing, shampooing or dyeing the hair or applying hair tonics.' Nor did it mean 'applying cosmetic preparations, antiseptics, powders, oil, clay or lotions to scalp, face or neck,' because the act (section 2) specifically declared that these operations, either separately or when combined, constitute 'the teaching and practice of barbering.'

There is no attack made on the constitutionality of the act under which the petitioner is held. We think that the warrant is sufficient authority for the constable to arrest and hold the accused, and that the warrant, taken together with the stipulation of facts, shows that the charge has foundation in fact sufficient to preclude this court from discharging the petitioner on habeas corpus. Therefore, it is ordered and adjudged that the return be held sufficient, and that the petitioner be remanded to the custody of the respondent to be dealt with according to law.

It is so ordered.

WHITFIELD, TERRELL, and BROWN, JJ., concur in the conclusion.

CONCURRING

DAVIS Chief Justice (concurring specially in conclusion).

Section 4, par. (d), chapter 14650, Acts of 1931, is to the effect that:

'The provisions of the Act shall not be construed to apply to: * * * (d) Persons practicing beauty culture.'

Section 2, defining 'barbering,' is a part of 'the Act,' as the latter phrase is used in section 4 of said chapter 14650, supra. Therefore, since no provisions of 'the act' shall be construed to apply to any person practicing 'beauty culture,' it seems to me that no part of the definition of the practice of 'barbering' as set forth in section 2 of 'the act' can be applied to persons practicing 'beauty culture.' This is so because the language of section 4 is that no provisions of the 'act' can be applied to beauty culturists and certainly...