Commonwealth v. Ward

• Decision Date: 17 December 1909
• Citation: 123 S.W. 673,136 Ky. 146
• Parties: COMMONWEALTH v. WARD et al.
• Court: Kentucky Court of Appeals

123 S.W. 673

136 Ky. 146

COMMONWEALTH v. WARD et al.

Court of Appeals of Kentucky.

December 17, 1909

Appeal from Circuit Court, Jefferson County, Criminal Branch.

"To be officially reported."

M.Ward and others were arrested for refusal to pay the board of examiners for renewal cards as provided in the act of 1902 to regulate barbering.The trial court having held the act invalid, the Commonwealth appeals on an agreed statement of facts.Reversed.

Jas Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen., and Jacob Solinger, for the Commonwealth.

Herman Morris, for appellees.

CARROLL J.

This appeal involves the validity of an act of 1902, entitled "An act to regulate barbering"(Laws 1902, p. 101 c. 51), now section 165a of the Kentucky Statutes(Russell's St.§§ 2279-2291).The trial court held the act invalid, and it comes here by appeal of the commonwealth on an agreed state of facts.It appears from the agreed state of facts that the appellees were actually engaged in the occupation of barbering for three years prior to the passage of the act in question, that they refused to pay the $1 to the board of examiners for a renewal card as provided in the act, and that they were each arrested under authority of section 13 on account of such refusal.

The first section of the act reads: "It shall be unlawful for any person to follow the occupation of barber in all cities of the first, second and third class of this state unless he shall have first obtained a certificate of registration as provided in this act: Provided, however, that nothing in this act contained shall apply to or affect any person who is now and for the past three years has been actually engaged in such occupation.A. person so engaged less than three years shall be considered an apprentice, and at the expiration of three years of such employment shall be subject to the provisions of this act as hereinafter provided."

In the second section provision is made for the appointment by the Governor of a board of examiners to carry out the purposes and enforce the provisions of the act.

The third section defines the powers and duties of the board.

Sections 4,5, and6 relate to the compensation of the board, the reports that it shall make to the Governor, and the places at which examinations of persons desiring to become barbers shall be held.

In section 7 it is provided that: "Every person now engaged in the occupation of barber in cities of the first, second and third class shall, within ninety days after the approval of this act, file with the secretary of said board an affidavit setting forth his name, residence and the length of time during which, and the place where, he has practiced such occupation, and shall pay to the treasurer of said board one dollar, and a certificate of registration entitling him to practice said occupation thereupon shall be issued to him."

And in section 8 it is provided that: "Any person desiring to obtain a certificate of registration under this act shall make application to said board therefor, and shall pay to the treasurer of said board an examination fee of five dollars and shall present himself at the next regular meeting of the board for the examination of applicants, whereupon said board shall proceed to examine such person, and being satisfied that he is above the age of nineteen years, of good moral character, free from contagious or infectious diseases, that he had either studied the trade for at least three years as an apprentice under a qualified and practicing barber; or that he had studied the trade in a barber school or schools, as defined by this act, for at least three years, or had practiced the trade in another state for at least three years, and is possessed of the requisite skill in said trade to properly perform all the duties thereof, including his ability in the preparation of tools, shaving, hair cutting, and all the duties and services incident thereto, and is possessed of sufficient knowledge concerning the common diseases of the face and skin to avoid the aggravation and spreading thereof in the practice of said trade; his name shall be entered by the board in the register hereinafter provided for, and a certificate of registration shall be issued to him, authorizing him to practice said trade in cities of the first, second and third class: Provided, that whenever it appears that the applicant has acquired his knowledge of said trade in a barber school, board may subject him to an examination and withhold from him a certificate if it shall thus appear that he is not qualified to practice the said trade.A barber school is hereby declared to be a school conducted by a suitable person who is authorized to practice the trade of a barber in this state, and in which all instruction is given by competent persons so authorized, and in which the course and period of training shall comply with the rules and regulations of the said board adopted for the government of barber schools."

Section 9 permits of apprentices serving under authorized barbers.Section 10 provides for the issual annually of cards to holders of certificates.For this card $1 is to be paid, and, upon the failure of any holder of a certificate to apply for a renewal card, his certificate may be revoked.

Section 11 directs the board to keep a register; and in section 12 it is provided that: "Said board shall have power to revoke any certificate of registration granted by it under this act for: (a) Conviction of crime; (b) habitual drunkenness for six months immediately preceding the filing of a charge with it therefor; (c) gross incompetency; (d) the keeping of a shop or the tools, appliances or furnishings thereof in an unclean and unsanitary condition; (e) failure to comply with the requirements of section 10 of this act: Provided, that before any certificate shall be so revoked the holder thereof shall have notice in writing of the charge or charges against him, and shall have a reasonable opportunity to be heard in his defense.Any person whose certificate has been so revoked may, at the expiration of ninety days, apply to have the same re-granted, and the same shall be re-granted to him upon a satisfactory showing that the disqualification has ceased.The said board shall have power to summon any person to appear as a witness and testify at any hearing appointed by it touching any such charge preferred against any barber of cities of the first, second and third class, and to examine such witness relating thereto, and shall have the right to administer oaths."

Section 13 fixes a penalty for violations of the act.

The grounds upon which the act is assailed are (1) that the appellees, having been engaged in the business of barbering for more than three years prior to the enactment of the law are not subject to its provisions; (2) that, as it applies only to barbers in first, second, and third class cities, it is class legislation and unconstitutional; (3) that as the act exempts from its operation persons who have been engaged in the business of barbering for three years prior to its enactment, and requires all other persons to pay a license it unjustly discriminates and for this reason is invalid; and (4) that it is void because its provisions are inconsistent and irreconcilable and confer arbitrary power.The argument is made that, as the proviso in section 1 reads, "That nothing in this act contained shall apply to or affect any person who is now and for the past three years has been actually engaged in such occupation," therefore persons who were engaged in the business of barbering at the time the act was passed and had been so engaged for a period of three years prior thereto are exempt from all of its provisions.If this was the proper construction of the act, it is manifest that under the agreed state of facts appellees were not amenable to its provisions, and hence no prosecution could be...