Christian v. La Forge

• Decision Date: 02 April 1952
• Citation: 242 P.2d 797,194 Or. 450
• Parties: CHRISTIAN et al. v. LA FORGE.
• Court: Oregon Supreme Court

Page 797

242 P.2d 797

194 Or. 450

CHRISTIAN et al. v. LA FORGE.

Supreme Court of Oregon, En Banc.

Argued and Submitted March 11, 1952.

Decided April 2, 1952.

John D. Williams, Asst. Atty. Gen., and Leonard D. Alley, of Portland, argued the cause for appellants. With them on the brief was George Neuner, Atty. Gen.

No appearance for respondent.

TOOZE, Justice.

This is a suit for an injunction, brought by Sherman Christian, Clarence Townsend, and Clyde C. Haase, as members of and constituting the Oregon State Board of Barber Examiners, as plaintiffs, against Earl La Forge, as defendant. The trial court sustained defendant's general demurrer to the complaint, and a decree was entered dismissing the suit. Plaintiffs appeal.

Omitting formal parts, the complaint alleges:

'I.

'That the plaintiffs, Sherman Christian, Clarence Townsend and Clyde C. Haase, are duly appointed, qualified and acting members of, and constitute, the Oregon State Board of Barber Examiners, hereinafter referred to as the Board; that said Sherman Christian is President of the Board, Clarence Townsend is Vice-President of the Board, and Clyde C. Haase is Secretary-Treasurer of the Board.

'II.

'That the defendant, Earl La Forge, is a duly licensed barber and operates a barber shop at 222 S. W. Madison Street, in the City of Portland, Multnomah County, Oregon, under the assumed name and style of the New Square Deal Barber Shop.

'III.

'That pursuant to and in compliance with Chapter 198, Oregon Laws 1945, the Board on the 8th day of June, 1950, duly declared, established and promulgated by its official order a minimum price schedule for barbering services to be performed in the County of Multnomah, State of Oregon; that said minimum price order thereafter became effective on July 1, 1950, and has remained, and is now, in full force and effect.

'IV.

'That a copy of said order establishing minimum prices in Multnomah County was printed and posted for public inspection in the office of the Secretary of the Board; that a printed copy of the duly declared, established and promulgated minimum price order was promptly mailed to each registered barber in Multnomah County, Oregon, and particularly to the defendant herein; that a copy of said printed order is attached hereto, marked Exhibit A and incorporated herein and made a part hereof the same as though set out at length herein.

'V.

'That since July 1, 1950, defendant, being then and now subject to the provisions of said law and order promulgated thereunder, has wilfully and deliberately violated, and is now violating, the same in the following particulars, to-wit:

'(a) By offering the barbering service and rendering barbering service of adult hair-cutting within the City of Portland, Multnomah County, Oregon, at the price of fifty cents ($0.50) which is twenty-five cents ($0.25) below the price set for adult's hair-cutting in said minimum price schedule, the same at all times during said period, and now, being seventy-five cents ($0.75).

'(b) By failing to post in a conspicuous place in defendant's barber shop a copy of said approved and promulgated minimum price schedule furnished by plaintiffs to defendant.

'VI.

'That plaintiffs, through their agents, have repeatedly notified defendant of his said violations, and have demanded that defendant cease said violations; that defendant, well knowing the provisions of said order and that his acts as hereinabove alleged were and are in violation thereof and of the laws of the State of Oregon, has refused to cease said violations, and threatens to, and will, continue offering and rendering said services at said prices or lower, and will continue to refuse to post said minimum price schedule until and unless restrained therefrom by order of this court.

'VII.

'Plaintiffs are informed, and believe, and therefore allege that said violation of said law and the order of the Board have been, and are, being committed with the deliberate intent and purpose of breaking down and destroying the administration of said law and order promulgated thereunder by the plaintiffs: that by defendant's said violations great hardship and damage is inflicted upon those barbers complying with the order; that continuation of said violations by defendant would inevitably disrupt the administration of said law and render impossible its enforcement by the plaintiffs, and cause irreparable injury to plaintiffs and members of the barbering profession; that it is particularly necessary that said violations cease as early as possible to prevent a price war among barbers and safeguard fair competition, to protect the health and safety of the public and to insure adequate sanitary facilities in the barbering profession; that it is essential that defendant be restrained at once from further violating said order.

'VIII.

'That plaintiffs have no plain, speedy or adequate remedy at law; that unless a court of equity intervenes, obedience to said order cannot be enforced, as no other remedy is sufficiently expeditious to deter defendant before said irreparable damage is done; that said Board is expressly empowered by said statute to enforce said law and its orders made pursuant thereto by injunctive relief.

'Wherefore plaintiffs pray for a decree of this court granting to these plaintiffs a temporary testraining order restraining the defendant from rendering barbering services in Multnomah County, State of Oregon, for prices below the minimum price schedule for barbering services reestablished by the Board on June 8, 1950, and effective on July 1, 1950, and from otherwise violating said order, and that at the final hearing of this suit said restraining order be made permanent, and for such other, further and different relief as to the court may seem just and equitable in the premises.'

Defendant's demurrer reads as follows:

'Comes now the defendant and demurs to the complaint filed against him in the above-entitled suit, demurring thereto upon the ground [sic] that the same does not contain facts sufficient to constitute any cause of suit or action against him.

'In my opinion this demurrer is well founded in law, and the defendant, in the presentation thereof will contend that the legislative act mentioned and referred to in paragraph, or subdivision numbered III of said complaint, and the validity of which is necessary to a cause of suit for plaintiffs in this case, is void for the following reasons:

'(a) It contravenes the due process clause of the Fourteenth Amendment to the Constitution of the United States: and

'(b) It is an unlawful delegation of legislative authority, in violation of Art. IV, #1, Art. III, #1, and Art. 1, #21, of the Constitution of the State of Oregon.'

Insofar as material to the discussion that is to follow, ch. 198, Oregon Laws 1945, provides as follows:

'Section 1. The facts, policies and purposes herein set out hereby are declared as a matter of legislative determination, and the provisions and regulations hereof are declared to be enacted in the interest of the public health, public safety and general welfare. The profession of barbering and the operation of barber shops hereby is declared to be affected with a public interest; that the fixing of minimum prices for services will stabilize the barber business, safeguard fair competition, promote adequate sanitary facilities and assure adequate inspection and supervision of barber shops, as provided by the laws and ordinances of this state, and will thereby tend to protect the health and safety of the public and protect barbers from inadequate means for complying with health and sanitary regulations. It further is declared that unfair, demoralizing and uneconomic competition and practices now exist in this state among barbers and barber shops, resulting in price cutting to the extent of limiting and preventing barbers from rendering safe and healthful service to the public by reducing the purchasing power of barbers in obtaining sanitary products and appliances required for health protection and safety in preventing transmission of disease.

* * *

* * *

'Section 3. Whenever a scale of minimum prices for barber services shall have been suggested in writing by petition, signed and submitted to the board of barber examiners by at least 70 per cent of the licensed barbers in any county of this state, the board of barber examiners shall have power to approve, alter, reduce, amend or reject such scale of minimum prices so suggested by petition and to declare and establish for such county, by official order, the minimum prices for any and all work or service usually performed in barber shops. Before acting upon such petitions the board, within 30 days after such schedule is submitted, shall determine by investigation whether such suggested prices are reasonable and sufficient to enable barber shops in such district to operate in keeping with the purposes of this act in minimizing danger to the public health and safety incident to such work. In any event, the board shall have the power and authority to determine reasonable minimum prices for barber services and in determining reasonable minimum prices the board shall take into consideration the necessary costs incurred in such district in maintaining barber shops in a clean, healthful and sanitary condition, and also the wages or commissions, or both, which customarily are paid to employes in barber shops in such district, and shall take into consideration any and all other facts and conditions affecting the barber profession in its relation to the public health and safety; provided, however, that before any scale of minimum prices for barber services shall be declared, established and promulgated for any such district or county, the board of barber examiners shall investigate and determine the facts as to whether or not it be deemed necessary that minimum prices be established for the protection of and minimizing the danger to the public health and safety.

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