Cooper v. Rollins

• Decision Date: 14 February 1922
• Docket Number: 2405.
• Parties: COOPER ET AL. v. ROLLINS ET AL.
• Court: Georgia Supreme Court

110 S.E. 726

152 Ga. 588

COOPER ET AL. v. ROLLINS ET AL.

No. 2405.

Supreme Court of Georgia

February 14, 1922

Syllabus by the Court.

This court will not declare an act of the Legislature unconstitutional, unless the conflict between the act and the Constitution is clear and palpable.

What trades or occupations shall be regulated, and the nature and extent of the regulations to be applied, are questions for the Legislature to determine, and fall within the proper exercise of the police power of the state; and, unless the regulations are so unreasonable and extravagant that the property or personal rights of the citizen are unnecessarily and arbitrarily interfered with, without due process of law they do not extend beyond the power of the state to pass.

The act of the Legislature "regulating the occupation of barbers," approved August 17, 1914 (Acts 1914, p. 75) as amended by the act of 1920 (Acts 1920, p. 109), is not unconstitutional, (a) because it violates the provision of our state Constitution (art. 1, § 4, par. 1), which provides that "laws of a general nature shall have uniform operation throughout the state," or (b) because it violates the equal-protection clauses of the Fourteenth Amendment of the Constitution of the United States and of the Constitution of this state.

Additional Syllabus by Editorial Staff.

Residents of the state cannot attack the constitutionality of Acts 1914, p. 75, as amended by Acts 1920, p. 109, regulating the occupation of barbers, but exempting barbers practicing such trade in the state for three years prior to its approval, on the ground that it discriminates against nonresident barbers.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Suit by G. E. Cooper and others against R. E. Rollins and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Plaintiffs filed their equitable petition on their behalf and on behalf of all other persons similarly situated, seeking to have the "barber act" and its administration declared to be unconstitutional. The plaintiffs are residents of Georgia. The suit is brought against R. E. Rollins, L. E. Cooper, and W. H. Bedgood as members of the State Board of Barber Examiners. Bedgood was stricken as a defendant, and B. E Archer was substituted in his place as a member of said board. Plaintiffs alleged that the act (Laws 1914, p. 75) as amended (Laws 1920, p. 109), creating this board, is unconstitutional: (a) Because it discriminates between barbers and those engaged in other kinds of manual labor; (b) because it does not operate uniformly throughout the state, but is applicable only to barbers in cities and towns in excess of 5,000 inhabitants; (c) because it violates article 1, § 4, of the Constitution of this state, and the Fourteenth Amendment to the Constitution of the United States, in that section 9 of the original act exempts from its provisions barbers engaged within the state at the date of such act, and who had been practicing such occupation for a period of three years prior to its approval; (d) because it violates the same provisions of the state and federal Constitutions, for the reason that it permits barbers who had been engaged in their trade for the period of three years prior to the approval of this act to continue their occupation by making an affidavit of these facts and paying the sum of $2, while a person who had learned to practice such occupation without the state is required to pay the sum of $5 and to submit to an examination before said board; (e) because the classification of towns and cities into those having populations in excess of 5,000 inhabitants and those having less population, and making said act applicable to those of the former population, and not to those of the latter, is arbitrary and unreasonable.

It was agreed between the plaintiffs and the defendants in the court below, that the only question involved was the constitutionality of this law upon the several grounds set forth in the petition.

Roy Lewis, J. L. Anderson, and John T. Pearson, all of Atlanta, for plaintiffs in error.

Jas. A. Miller and Bond Almand, both of Atlanta, for defendants in error.

HINES, J. (after stating the facts as above).

1. Every presumption will be made in favor of the constitutionality of an act of the Legislature. Allison v. Thomas, 44 Ga. 649. Before an act of the Legislature will be declared unconstitutional, the conflict between the act and the fundamental law must be clear and palpable. Wellborn v. Estes, 70 Ga. 390. A state statute will not be set aside by the courts in a doubtful case. Macon & Western R. Co. v. Davis, 13 Ga. 68, 83. These elementary principles do not require any elucidation. They have become firmly imbedded in the constitutional law of the state, and should not be departed from.

2. It is urged that this act is unconstitutional because it discriminates between persons engaged in the trade of barbering and persons engaged in other trades involving manual labor. This involves the question whether the Legislature has the power to require the members of one trade or occupation to be examined and licensed, without requiring the members of all other trades or occupations to be so examined and licensed. Is it a denial of the equal protection of the law to require those who are engaged in the pursuit of one trade to be examined and licensed, while the Legislature does not require those engaged in other occupations to be so examined and licensed? At this time the question does not admit of debate. The courts are generally agreed that it is competent for the Legislature to prohibit persons from practicing the calling of a barber without first having obtained a license or certificate of registration. State v. Sharpless, 31 Wash. 191, 71 P. 737, 96 Am.St.Rep. 893; State v. Walker, 48 Wash. 8, 92 P. 775, 15 Ann.Cas. 257; State v. Zeno, 79 Minn. 80, 81 N.W. 748, 48 L.R.A. 88, 79 Am.St.Rep. 422; State v. Armeno, 29 R.I. 431, 72 A. 216; Ex parte Lucas, 160 Mo. 218, 61 S.W. 218; State v. Briggs, 45 Or. 366, 77 P. 750, 78 P. 361, 2 Ann.Cas. 424. The power of the Legislature to regulate this trade and to require barbers to be examined and licensed is derived from the police power of the state. This power enables the Legislature to make all needful rules and regulations for the health, power, and welfare of the people of the state. The health of the citizens as affected by diseases spread from barber shops conducted by unclean and incompetent barbers is justification for such laws. 12 C.J. 924, § 432.

The regulation of the occupation of barbers, and leaving other occupations of like kind unregulated, is not a denial of the equal protection of laws, within the meaning of the Fourteenth Amendment to the Constitution of the United States. What such regulation shall be, and to what particular trade or business such regulation shall apply, are questions for the state to determine, and their determination comes within the proper exercise of the police power of the state; and, unless the regulations are so unreasonable and extravagant in their nature and purpose that the property or personal rights of the citizens are unnecessarily and in the main arbitrarily interfered with or destroyed, and without due process of law, they are not beyond the power of the state to pass. Gundling v. Chicago, 177 U.S. 183, 20 S.Ct. 633, 44 L.Ed. 725; Williams v. Arkansas, 217 U.S. 79, 88, 30 S.Ct. 493, 54 L.Ed. 673, 18 Ann.Cas. 865.

3. It was insisted by counsel for the plaintiffs in error that this statute violates article 1, section 4, paragraph 1, of the Constitution of this state (Civil Code, § 6391), which declares that "Laws of a general nature shall have uniform operation throughout the state." The act (section 1) declares that--

"It shall be unlawful for any person to follow the occupation of barbering in cities or towns in excess of five thousand inhabitants unless he will have first obtained a certificate of registration as provided in this act."

It is insisted that this classification of the cities and towns of the state into those having populations in excess of 5,000 inhabitants and into those having less than such number of inhabitants, and making this act applicable only to barbers following their occupations in cities or towns having populations in excess of 5,000 inhabitants, violates this provision of the state Constitution. In this we do not agree with the learned counsel for the plaintiffs in error. The Constitution of Georgia recognizes certain territorial jurisdictions, such as the state, its counties, cities, and militia districts. Whatever laws apply to all or any one of these territorial jurisdictions as a class cannot be called special laws, but are general statutes, having uniform operation throughout the state. Starnes v. Mutual Loan & Banking Co., 102 Ga. 597, 29 S.E. 452. The act involved in the case last cited was one fixing the venue of justices' courts in cities having a population of more than 5,000 inhabitants.

Our state Constitution only requires a law to have uniform operation, and that means that it shall apply to all persons matters, or things which it is intended to affect. If it operates alike on all who come within the scope of its provisions, constitutional uniformity is secured. Uniformity does...