Clark v. State

• Decision Date: 26 February 1934
• Docket Number: 30805
• Court: Mississippi Supreme Court
• Parties: CLARK v. STATE

152 So. 820

169 Miss. 369

CLARK v. STATE

No. 30805

Supreme Court of Mississippi

February 26, 1934

Division A

Suggestion Of Error Overruled March 26, 1934.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

S. C Clark was convicted of practicing the profession of barbering without a valid certificate of registration, and he appeals. Affirmed.

Affirmed.

E. W. Stennett, of Jackson, for appellant.

Chapter 118, Laws of 1932, is one of the statutes by which the legislature is gradually building a "wonderland of bureaucracy."

The act fails to lay down a satisfactory yardstick by which the fitness of the applicant is to be determined and measured. All this is left entirely to the unregulated and uncontrolled discretion of the members of the board of examiners. For this reason the act is unconstitutional, null and void in that appellant is denied equal protection under the law.

Cicero Lbr. Co. v. Town of Cicero, 176 Ill. 27, 42 L. R. A 704, 68 Am. St. Rep. 163.

Section 15, chapter 118, Laws of 1932, requires all applicants for "an examination to determine his fitness" to practice barbering to pay a fee of five dollars, and for the issuance of the certificate one dollar, and for an examination "to determine the applicant's preliminary education," one dollar, and for the annual renewal of his certificate, if the board of examiners should happen to be gracious enough to grant one in the first place, of three dollars, which must be paid annually on or before the first day of July of each year. It is the contention of appellant that these fees, and particularly the annual renewal fee, amount to a tax, an occupation tax, which the legislature was without authority to require appellant to pay.

The right to follow any of the common occupations of life is an inalienable right.

Wilby v. State, 47 So. 465.

Another unfair discrimination and exemption is the fact that the act does not apply to barbers carrying on their business outside of a city having a population of five hundred or less inhabitants. The provisions of the act should apply equally to all alike.

Vicksburg v. Mullane, 63 So. 412; Adams v. Standard Oil, 53 So. 692.

Bert Crisler, of Jackson, for appellant.

The statute under attack points out only two parts the state barber board of examiners is to play in the matter of administration of this particular provision of the act. They can only report such violations to the state department for their action and suspend the guilty party.

Baldwin Case, 164 Miss. 744.

The statute no where provides that the barber board shall initiate such a prosecution. The act is statutory and must not only be strictly construed but so followed.

The legislature was without authority to organize a separate, distinct and independent health department as set up under the provisions of this statute.

Miss. R. R. Com. v. I. C. R., 203 U.S. 335.

The classification set up under the provisions of this statute is bad.

Reynolds Case, 208 Ala. 38; Tombs v. Sharkey, 106 So. 273; 25 R. C. L. 815; Cooley on Constitutional Limitations (6 Ed.) 481-3; Adams Case, 97 Miss. 879.

The Fourteenth Amendment of the Federal Constitution is violated in that women, student barbers, and all barbers not in the third class are exempt. Appellant is in the third class. He is denied the equal protection of the law.

The provisions of section 112 of the state constitution are violated. Taxation is not equal when appellant has to pay this tax and his next door competitor does not have it to pay. Taxation is not equal when appellant has to pay these fees and the student barber nor the exempt other barbers do not have to pay same.

Jackson v. State, 117 So. 818; Adams Case, 97 Miss. 879; Eden Case, 61 Miss. 283.

W. D. Conn, Jr., Assistant Attorney-General, and W. A. Shipman, of Jackson, for the state.

A law is general in the sense of such a constitutional provision (referring to section 87, Constitution of 1890) when it applies to and operates upon all members of any class of persons uniformly, requiring legislation peculiar to the particular class dealt with by the statute.

City of Jackson v. Deposit Guaranty Bank, 133 So. 195; State v. Gilmer Groc. Co., 156 Miss. 99, 125 So. 710; State v. Speakes, 144 Miss. 125, 109 So. 129; Toombs v. Sharkey, 140 Miss. 676, 106 So. 273; Miller v. Lamar Life Ins. Co., 158 Miss. 753, 131 So. 282.

The courts should declare the spirit and reason of the statute, and ascertain the intention of the legislature; and in construing statutes the courts may resort to the history of the legislation and other pertinent considerations to ascertain the legislative intent.

White, Auditor, v. Miller, 139 So. 611; Conrad Fur. Co. v. State Tax Com., 160 Miss. 746, 133 So. 652; Gandy v. Public Service Corp. , 140 So. 687.

It is the duty of the court to construe acts of the legislature so as to uphold their constitutionality if it can be done.

Easterling Lbr. Co. v. Pierce, 106 Miss. 672, 64 So. 461; Easterling Lbr. Co. v. Pierce, 235 U.S. 380; Hart v. State, 87 Miss. 171, 39 So. 523; Burnham v. Sumner, 50 Miss. 517; Railroad Co. v. Crawford, 99 Miss. 679, 55 So. 596; State v. Wheatley, 113 Miss. 555, 74 So. 428; Johnston v. Reeves, 72 So. 925; Miller v. State, 130 Miss. 564, 94 So. 706; Staple Cotton Co-op Ass'n v. Hemphill, 142 Miss. 298; Robinson v. State, 143 Miss. 709, 108 So. 903; Schilling v. State, 143 Miss. 614, 109 So. 737; State v. Miller, 144 Miss. 614, 109 So. 900; Thompson v. Box, 146 Miss. 1, 112 So. 597; Parnell v. Johnson, 109 Miss. 520, 68 So. 780; University v. Waugh, 105 Miss. 623, 62 So. 827; Hinds County v. Johnson, 98 So. 95; State v. Gilmer Grocery Co., 125 So. 710.

One who is not prejudiced by the enforcement of an act of the legislature cannot question its constitutionality, or obtain a decision as to its validity on the ground that it impairs the rights of others.

6 R. C. L. 89, 90; N. O. M. & G. R. Co. v. State, 110 Miss. 290, 70 So. 355; Standard Stock Food Co. v. Wright, 225 U.S. 225; University v. Waugh, 105 Miss. 623, 62 So. 827; City of Jackson v. Deposit Bank, 133 So. 195.

In determining the question of the validity of a statute, all doubts must resolve in favor of its constitutionality, and, if possible, the constitutional provision in question must be read into and become a part of the statute, and, unless the constitution and statute are squarely in conflict, the statute must stand. Where two different interpretations are possible, that which will uphold its validity must be adopted.

University v. Waugh, 105 Miss. 623, 62 So. 827; Johnson v. Reeves, 112 Miss. 227, 72 So. 925; State v. Wheatley, 113 Miss. 555, 74 So. 427; Hinds County v. Johnson, 98 So. 95; State v. Miller, 108 So. 900.

It is settled that it is competent for the legislature to tax any occupation or calling according to its discretion, and if all of the same class are treated alike, the constitutional requirement of equality and uniformity is fully complied with.

2 Cooley on. Taxation 1094; Bank v. Worrell, 67 Miss. 47; Cooley on Constitutional Limitations, sec. 678; Barataris Canning Co. v. State, 58 So. 769; Johnson v. Drainage District, 59 So. 921; Holberg v. Macon, 55 Miss. 112; State v. Widman, 112 Miss. 1, 72 So. 782.

The legislature has a wide discretion in classifying the subjects of police regulation, and a legislative classification will not be annulled by the courts, unless it is wholly without a reasonable or practical basis.

King v. A. C. L. R. Co., 58 Fla. 292, 505 So. 509; A. C. L. R. Co. v. Goldsborough, 232 U.S. 548; Dutton Phos. Co. v. Priest, 65 So. 282; McNiell v. Webeking, 66 Fla. 407, 63 So. 782; Jacksonville v. Bowden, 64 So. 769; Easterling Lbr. Co. v. Pierce, 64 So. 461; State v. J. J. Newman Lbr. Co., 102 Miss. 802, 59 So. 952; Davis v. Florida Power Co., 64 Fla. 246, 60 So. 759; Lindsey v. Nat. Carbonic Gas Co., 220 U.S. 61; Central Lbr. Co. v. State, 126 U.S. 157; Peninsular, etc., Co. v. State, 61 Fla. 276, 55 So. 398; L. & N. R. Co. v. Melton, 218 U.S. 36; Patsone v. Commonwealth, 232 U.S. 138; Sec. 33, Const. of Miss. 1890, as amended March 29, 1916; State v. Bd. Sup. Grenada County, 105 So. 541; Vicksburg v. Mullane, 106 Miss. 199, 63 So. 412; 2 Cooley's Constitutional Limitations (8 Ed.) 824, 825; Lowry v. Clarksdale, 122 So. 195.

It is to be presumed that the legislature of this state understands and appreciates the needs of the people, and that its laws are aimed at conditions understood by them, experienced by them, and that when they make discriminations in classifications they are based upon adequate grounds.

Gilmer Grocery Co. v. State, 125 So. 710; Whitney v. California, 274 U.S. 357, 71 L.Ed. 1095; A. T. & S. F. R. Co. v. Matthews, 174 U.S. 96; German Alliance Ins. Co. v. Lewis, 233 U.S. 389; Orient Ins. Co. v. Daggs, 172 U.S. 557; Heath v. Worst, 207 U.S. 338; Mutual Loan Co. v. Martell, 222 U.S. 225.

The power of the legislature to exempt from taxation is no longer an open question in this state.

Miller v. Lamar Life Ins. Co., 132 Miss. 415, 95 So. 845; City of Jackson v. Deposit Guaranty Bank, 133 So. 195.

These barber statutes have been the subject of attack in several of the states of the union, and we call the attention of the court to a number of cases in which the constitutionality of statutes similar to that of the Mississippi statute has been in issue.

Commonwealth v. Ward, 136 Ky. 146, 123 S.W. 673; Cresswell v State, 126 Md. 103, 94 A. 549; State v. Nolan, 161 Tenn. 293, 30 S.W.2d 601; State v. Lockey, 198 N.C. 551, 152 S.E. 693; Marx v. Maybury, Director of Licenses, State of Washington, 26 F.2d 397; State v. Zeno, 81 N.W. 748; State, by Murray, v. Armeno, 72 A. 216; State v. Briggs, 77 P. 750; Curtis v. Los Angeles, 156...