Department of Licenses and Inspections, Bd. of License and Inspection Review v. Weber

• Decision Date: 12 January 1959
• Citation: 147 A.2d 326,394 Pa. 466
• Parties: DEPARTMENT OF LICENSES AND INSPECTIONS, BOARD OF LICENSE AND INSPECTION REVIEW; City of Philadelphia, Intervenor-Appellant, v. Nancy WEBER, Appellee.
• Court: Pennsylvania Supreme Court

Page 326

147 A.2d 326

394 Pa. 466

DEPARTMENT OF LICENSES AND INSPECTIONS, BOARD OF LICENSE AND INSPECTION REVIEW; City of Philadelphia, Intervenor-Appellant, v. Nancy WEBER, Appellee.

Supreme Court of Pennsylvania.

Jan. 12, 1959.

David Berger, City Solicitor, James L. Stern, Deputy City Solicitor, Albert J. Persichetti, James L. J. Pie, Asst. City Solicitors, Alan Miles Ruben, Asst. to the City Solicitor, Philadelphia, for appellant.

Isadore Gottlieb, Philadelphia, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN and BOK, JJ.

MUSMANNO, Justice.

Nancy Weber owns a beauty shop in Philadelphia and holds a license issued by the State Board of Cosmetology, authorizing her to carry on the work of enhancing the feminine pulchritude of the land. On July 24, 1957, she was notified, through appropriate agencies of the City of Philadelphia that, according to provisions of the City's Health Code (Sections 6-402(3) and 6-503), she was required to obtain a city license and introduce certain features into her shop so that it would meet standards of safety and sanitation set up by the City.

She refused to apply for the city license and declined to carry out the recommendations of the Department, asserting that she was amenable only to the provisions of the Beauty Culture Act of May 3, 1933, P.L. 242, 63 P.S. § 507 et seq., under whose aegis she was operating, by virtue of the State license already issued to her. Accordingly she appealed to the Board of License and Inspection Review, claiming that 'Sections 6-402, paragraphs 3a to 3h inclusive and section 6-503 of the Code of General Ordinances of the City of Philadelphia and Regulations promulgated thereunder for governing of Beauty Shops and Schools of Beauty Culture are invalid, illegal, and unconstitutional and therefore unenforceable.' The Board rejected her contentions and she appealed to the Court of Common Pleas of Philadelphia County which reversed the adjudication of the Board.

The Common Pleas Court held generally that, through the instrumentality of the Act of 1933, the State had preempted the field of beauty culture regulation, and that no municipality, therefore, could step into that area of supervision and control. Of course, it is obvious that where a statute specifically declares it has planted the flag of preemption in a field, all ordinances on the subject die away as if they did not exist. It is also apparent that, even if the statute is silent on supersession, but proclaims a course of regulation and control which brooks no municipal intervention, all ordinances touching the topic of exclusive control fade away into the limbo of 'innocuous desuetude.' However, where the Act is silent as to monopolistic domination and a municipal ordinance provides for a localized procedure which furthers the salutary scope of the Act, the ordinance is welcomed as an ally, bringing reinforcements into the field of attainment of the statute's objectives.

The lower Court does not dispute these fundamental observations but avoids their application to the case at bar by a circuitous reasoning which begins with an erroneous concept and necessarily arrives at a fallacious conclusion. Thus, in the silence of the Beauty Culture Act as to municipal supplementation, the Court sees prohibition of municipal regulation. It says 'We can perceive this intent in the very silence of the Assembly on this question. There is nothing in the Act which we can point to as indicating what the Assembly intended as to local action. This silence is important. In a similar, companion statute regulating Barber Shops, the Assembly said: 'Nothing contained in this Act * * * shall be construed as prohibiting any municipality from adopting appropriate ordinances not inconsistent with the provisions of this Act * * *': Act of June 19, 1931, P.L. 589; 63 P.S. 566. Certainly, if the Assembly in drafting the 'Barber' Act spoke out clearly that it welcomed concurrent local action, its very silence in the 'Beauty Culture' Act evidences the Assembly's intention to prevent such action.'

But the Barber Act of 1931 did not, as the lower Court mistakenly maintains, state that municipal supplementation was not prohibited. It was an amendment to that Act (passed in 1935) which added this explanatory provision. And the reason for the explanation was that a Court of Common Pleas in Delaware County had ruled that an ordinance of the City of Chester which required city registration of barbers was ineffective due to the state-wide regulation provided by the Barber Law of 1931, 63 P.S. § 551 et seq. City of Chester v. Chouch, 19 Pa.Dist. & Co.R. 457. To disavow the assumption of State monopoly of barber shop regulation, the Legislature passed the law of May 9, 1935, which specifically announced:

'Nothing contained in this act, or the act to which this is an amendment, shall be construed as prohibiting any municipality from adopting appropriate ordinances, not inconsistent with the provisions of this act or the rules and regulations adopted thereunder, as may be deemed necessary to promote the public health and safety and regulate the conduct of barber shops and schools * * *' Act of May 9, 1935, P.L. 158, § 2, 63 P.S. § 566. (Emphasis supplied.)

Thus, the Act of 1935 was but a reiteration of the legislative intent pronounced in 1931, namely, that by silence the intention was made clear that local regulation was not only not prohibited but, where necessary, invited.

The Beauty Culture Act, by a similar silence, mutely spoke the same invitation. The Barber License Law and the Beauty Culture Law are in effect legislative Siamese twins. It is true they were born two years apart, but in the life of a commonwealth, and certainly in the life of the general welfare of a people, two years may be but a moment. The kinship between these two creatures of the Legislature was recognized in the Beauty Culture Act by the language:

'Nothing in this [Beauty Culture] act is intended to be inconsistent with the [Barber] act * * *' Act of May 3, 1933, P.L. 242, § 17, 63 P.S. § 523.

It is a cardinal rule of statutory construction that a statute must never be read, unless the text impels so extraordinary a reading, as to impart to it an absurd intent. With this rule in mind the question naturally follows, (if the lower Court's interpretation is correct,) as to why the Legislature would nail down tightly the state tent of beauty culture regulation, but leave it open in barber shop regulation. Why would the Legislature say that a city health agent might look into a barber shop to make certain that no rodents were gnawing at the chairs but that a similar agent could not inspect the permanent wave machines in a beauty shop to make certain they did not endanger the heads of the ladies who were to sit under them?

The Barber License Law and the Beauty Control Act have but one purpose, and that is the protection of patrons of barber and beauty shops. Prior to the enactment of the Barber License Law, any man could go into business as a barber, even if his lack of training for the vocation was exceeded only by his lack of knowledge and respect for hygiene. There was no way to prevent an epileptic barber from wielding a rusty razor over the throat of his helpless customer. What the Legislature placed in the Barber License Act in 1931 was not the maximum of regulation which would save prisoners of the barber chair from maladroit and mangy hands, but a level of regulation and control, below which no municipality would be permitted to go. Whatever additional protection cities, boroughs and townships wished to provide for barber shop patrons would be a boon and not a detriment to public welfare.

The Legislature could not...