Criswell v. State

• Citation: 94 A. 549,126 Md. 103
• Decision Date: 21 April 1915
• Docket Number: 88.
• Parties: CRISWELL v. STATE.
• Court: Court of Appeals of Maryland

94 A. 549

126 Md. 103

CRISWELL v. STATE.

No. 88.

Court of Appeals of Maryland

April 21, 1915

Appeal from Criminal Court of Baltimore City; Charles W. Heuisler Judge.

"To be officially reported."

Morris J. Criswell was convicted of violating Acts 1904, c. 226 regulating the practice of barbering, and he appeals. Affirmed.

George M. Brady, of Baltimore (William M. Maloy, of Baltimore, on the brief), for appellant. Lindsay C. Spencer, Asst State's Atty., of Baltimore, and Edgar Allan Poe, Atty Gen. (William F. Broening, State's Atty, of Baltimore, on the brief), for the State.

BURKE J.

The appellant was convicted and sentenced in the criminal court of Baltimore upon an indictment charging him with a violation of chapter 226 of the Acts of 1904, entitled:

"An act to regulate the practice of barbering in the state of Maryland; to establish a State Board of Barber Examiners; to provide for the sanitary inspection of barber shops, and to provide penalties for the violation thereof."

The indictment contained two counts. The first count charged that the traverser on the 10th day of December, 1914, at the city of Baltimore, and thence continually until the finding of the indictment, which was filed December 22, 1914, "unlawfully did then and there practice the occupation of a barber without having first received a certificate of qualification from the Board of Barber Examiners of the State of Maryland, as by law required." The second count charged that:

The traverser "was not a person engaged in Baltimore city aforesaid in the business of a barber on the 1st day of April, in the year of our Lord nineteen hundred and four, that being the date of the passage of the act of Assembly of Maryland of nineteen hundred and four, chapter 226; and that the said Morris J. Criswell, on the said 10th day of December, in the year of our Lord nineteen hundred and fourteen, at the city aforesaid, and thence continually until the day of the finding of the indictment, unlawfully did then and there practice the occupation of a barber without having first received a certificate of qualification from the Board of Barber Examiners of the State of Maryland, as by law required."

The appellant demurred to the whole indictment, and to each count thereof, and assigned the following grounds in support of the demurrer:

"That the said indictment, and each and every count thereof, is in violation of the provisions of the Declaration of Rights and the Constitution of Maryland. That the indictment and each and every count thereof is in violation of the guaranties provided by the federal Constitution. That the said indictment and each and every count thereof is based upon an act of the Legislature of Maryland, which would deprive a man of his life, liberty, and property without due process of law, and unlawfully limit his freedom of contract, and which in its nature constitutes and is class legislation. That the said indictment and each and every count thereof fails to charge the violation of any valid and existing law."

The court overruled the demurrer. He then filed the following special plea:

"That he, the said Morris J. Criswell, has been practicing the occupation of a barber in the city of Baltimore for a period of more than five years prior to the filing of this, his special plea; that he has practiced his occupation in a competent and proficient manner, and has not used towels, cups, or any other utensils generally used by barbers which were either unclean or liable to spread contagious or infectious diseases; that no complaint has been made as to the manner of his practice of the occupation of a barber, and he has not been accused, indicted, or been guilty of any felony, and he is not given to the habit of drink, and is not in any wise unfit for the practice of his occupation; and that he has complied with all regulations required of him by the health departments and boards, both of the state of Maryland and the city of Baltimore, but he has not sought to obtain, and has not obtained, any certificate of qualification from the Board of Barber Examiners of the State of Maryland.

That he, on the 1st day of April, in the year of our Lord nineteen hundred and four (that being the date of the passage of the act of Assembly of Maryland of 1904, chapter 226), was not occupied or working as a barber in the state of Maryland, nor was he so occupied or working at any time prior thereto, nor was he at that time, or any time prior thereto, employed in a barber shop, nor was he an apprentice at that time, nor at any time prior thereto."

The state demurred to the plea, and the court sustained the demurrer. The case was then tried before the court, without a jury, upon the issue joined upon the plea of non cul, and an agreed statement embodying the facts set out in the special plea, and resulted in the judgment from which this appeal was taken by the traverser.

The eighth and thirteenth sections of the act are as follows:

"Sec. 8. That every person now engaged in the business of a barber in this state shall, within three months after the passage of this act, file an affidavit with the secretary of said board setting forth his name, place of business, post office address, the length of time he has been engaged in the business of a barber, and pay to the treasurer the sum of one dollar for the certificate provided for in this act."

"Sec. 13. That to shave, trim the beard, or cut the hair of any person for hire or reward, received by the person performing such service, or any other person, shall be construed as practicing the occupation of a barber within the meaning of this act. This act shall not in any way apply to or affect any person who is now occupied or working as a barber in this state, nor any person employed in a barber shop, or an apprentice, except that a person so employed less than three years prior to the passage of this act, shall be considered an apprentice, and at the expiration of such three years of such employment shall be subject to the provisions of this act."

It was held in State v. Tag, 100 Md. 588, 60 A. 465, that persons working as barbers at the time of the passage of the act were exempt from its provisions. This act, like the act of 1892, chapter 296, which applied to persons who shall thereafter begin to practice medicine, and not to those then engaged in practice, drew a broad and pronounced distinction between two classes of barbers--by declaring that those answering to the description contained in section 13 were wholly exempt from the provisions of the act. It is true that the decision in that case turned upon the question of construction. But it is inconceivable that the broad discrimination made by the act, especially in view of the contention of the counsel for the state contained in their brief, could have escaped the notice of the court. On the...