Di Lustro v. Penton

• Decision Date: 14 July 1932
• Citation: 106 Fla. 198,142 So. 898
• Parties: DL LUSTRO v. PENTON, Sheriff.
• Court: Florida Supreme Court

142 So. 898

106 Fla. 198

DL LUSTRO v. PENTON, Sheriff.

Florida Supreme Court

July 14, 1932

En Banc.

Original proceeding by John Di Lustro for writ of habeas corpus directed to Moses H. Penton, as sheriff of Escambia County.

Petitioner remanded to sheriff's custody.

COUNSEL

Philip D. Beall and Wm. McChesney, both of Pensacola, for petitioner.

Jennings & Watts and Olin E. Watts, all of Jacksonville, for respondent.

OPINION

BARNS Circuit Judge.

The petitioner is held by the respondent upon an information charging him as follows:

'First Count: * * * Did then and there unlawfully engage in the practice of barbering without first having obtained a certificate of registration as a registered barber issued pursuant to the provisions of chapter 14650 of the Laws of Florida of 1931 by the Board of Barber Examiners said board established by said act.

'Second Count: * * * Did then and there unlawfully hire and employ a certain person, to-wit: to engage in the practice of barbering, the said not then and there having and holding a valid unexpired and unrevoked certificate of registration to practice barbering and the said ----- not then and there having and holding a valid unexpired and unrevoked certificate of registration as a registered apprentice nor a permit to practice as a journeyman nor a permit to work as an apprentice under the provisions of Chapter 14650 of the Laws of Florida of 1931.

'Third Count: * * * Did then and there use on a patron certain barber tools, to-wit: razors, scissors, tweezers, combs rubber discs and parts of vibrators, which said barber tools had been used on another patron, which said tools were not then and there kept in a closed compartment and were not then and there immersed in boiling water nor in a solution of two per cent carbolic acid nor its equivalent before each such use.'

The petitioner is charged with the violation of chapter 14650 of the Acts of 1931, the pertinent portions of which are as follows:

'Section 1. It shall be unlawful for any person to engage in the practice or attempt to practice barbering without a certificate of registration as a registered barber issued pursuant to the provisions of this Act by the Board of Barber Examiners hereinafter established. * * *

'It shall be unlawful for any person, firm or corporation to hire or employ any person to engage in the practice of barbering as hereinafter defined, unless such person then hold a valid, unexpired and unrevoked certificate or registration to practice barbering or a certificate of registration as a registered apprentice, or a permit to practice as a journeyman barber; or a permit to work as an apprentice, issued under the provisions of this Act.'

'Section 23. Subsection (i) (It shall be unlawful) 'To use on any patron any razors, scissors, tweezers, combs, rubber discs or parts of vibrators used on another patron, unless the same be kept in a closed compartment and immersed in boiling water or in a solution of two per cent carbolic acid, or its equivalent, before each such use.”

Section 2 of the act defines barbering as those who shall engage in certain practice directly or indirectly or without payment for the public generally as follows:

'Barbering Defined

'Section 2. Any one or any combination of the following practices (when not done for the treatment of disease or physical or mental ailments and when done for payment either directly or indirectly or without payment for the public generally) constitutes the teaching and practice of barbering.

'Shaving, or trimming the beard or cutting or bobbing the hair.

'Facial and scalp massages or treatments with oils, creams, lotions or other preparation.

'Singeing, shampooing or dyeing the hair or applying hair tonics.

'Applying cosmetic preparations, antiseptics, powders, oil, clay or lotions to scalp, face or neck; and

'For the purpose of this Act and as used herein the term 'barber shop' is hereby defined to embrace and include any establishment or place or business wherein the practice of barbering as hereinabove defined is engaged in or carried on.'

--and then proceeds to specifically exempt from the statute certain persons:

'Exemptions

'Section 4. The provisions of the Act shall not be construed to apply to:

'(a) Persons authorized by the law of this State to practice medicine and surgery or osteopathy or chiropractic or persons holding a drugless practitioner certificate under the law of this State;

'(b) Commissioned medical or surgical officers of the United States Army or Navy or Marine hospital service;

'(c) Registered nurses under the laws of this State;

'(d) Persons practicing beauty culture;

'(e) Persons employed in state or local institutions, or hospitals as barbers.'

The act further provides:

'Constitutionality

'Section 24. If any Section, subsection, sentence, clause or phrase of this Act is for any reason held to be unconstitutional such decision shall not affect the validity of the remaining portion of this Act. The Legislature hereby declares that it would have passed this Act, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared unconstitutional.'

The petition specifically attacks this Law because it is unconstitutional in that it contains:

(a) An unreasonable and arbitrary distinction and discrimination between persons engaged in the same class and kind of business or occupation, or exercising the same privileges, and makes an arbitrary distinction between persons similarly situated.

(b) That it does not bear equally and uniformly on all person engaged in the same class of business or occupation, and does not fall alike on all persons engaged in the same particular class of business or avocation.

(c) That it unreasonably and arbitrarily exempts part of the class or business or occupation of barbers, included in the definition of barbering.

(d) That it arbitrarily and unreasonably imposes a license tax and fee upon a portion of a certain class of business or occupation, and exempts certain other persons in said business or occupation similarly situated, without any valid reason therefor.

The constitutional provision for the 'Equal protection of the laws' seeks 'an equality of treatment of all persons even though all enjoy the protection of due process. It does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subject to such legislations shall be treated alike, under like circumstances and conditions, both in privileges conferred and liabilities imposed. It is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall...