Edwards v. State Bd. of Barber Examiners

• Decision Date: 10 May 1951
• Docket Number: No. 5356,5356
• Citation: 72 Ariz. 108,231 P.2d 450
• Parties: EDWARDS v. STATE BOARD OF BARBER EXAMINERS et al.
• Court: Arizona Supreme Court

Page 450

231 P.2d 450

72 Ariz. 108

EDWARDS v. STATE BOARD OF BARBER EXAMINERS et al.

No. 5356.

Supreme Court of Arizona.

May 10, 1951.

Udall & Udall, of Tucson, and Thomas E. Allin, Jr., of Benson, for appellant.

Fred O. Wilson, Atty. Gen., Chas. Rogers and Maurice Barth, Assts. Atty. Gen. (Darrell R. Parker, Phoenix, of counsel), for appellees.

FRED C. STRUCKMEYER, Superior Court Judge.

This is an appeal from an order of the Superior Court of Maricopa County dismissing appellant's complaint, wherein he sought a declaratory judgment to adjudge that the price-fixing provisions of the Barber Act, Art. 1, ch. 67, A.C.A.1939, were unconstitutional. As incidental to the main cause of action, plaintiff also asked for an injunction restraining the enforcement of these price-fixing provisions. In his complaint appellant alleged that he has been for many years a barber duly licensed under the laws of the state of Arizona; that by authority of certain acts of the legislature hereinafter referred to, the State Board of Barber Examiners established within the city of Douglas, Arizona, a minimum price for haircuts of one dollar; that the city of Douglas is adjacent to the Republic of Mexico, wherein prices of less than one dollar for haircuts prevail; that many residents of Douglas patronize the barber shops in Mexico by reason of the price differential; and that appellant's business has decreased and his means of livelihood is threatened. Additional allegations were to the effect that not to accede to the price-fixing regulations subjected him to certain penalties including criminal prosecution and loss of license.

Appellant attacked those statutes and portions of statutes dealing with price-fixing as being unconstitutional anv void. The principal section of the Act involved is 67-121, A.C.A.1939, providing as follows:

'67-121. Unfair trade practices.--(a) The board shall have power to establish minimum prices to be charged for barbering, subject to the conditions hereinafter prescribed.

'(b) Upon receipt of an application and agreement signed by not less than seventy-five (75) per cent of the registered barbers in any district, to establish minimum prices for barbering therein, the board shall set a hearing. Notice of the date and place of such hearing shall be given by the secretary, by registered mail, to every registered barber in such district not less than ten (10) days prior thereto. The board shall, prior to the hearing, investigate the conditions in such district. At the hearing, any barber or other person affected by the proposed agreement may testify or present arguments. After the hearing and investigation, the board may approve or disapprove the agreement as submitted or recommend such changes therein as it may deem proper, including a change of the boundaries of the district, and shall issue an appropriate order. Thereafter, no barber, hair cutter, or apprentice in the district shall charge or collect any price less than that ordered by the board for any barbering work.

'(c) The board, upon its own initiative or upon application of seventy-five (75) per cent of the registered barbers affected, may order a new investigation and hearing regarding the minimum prices theretofore established for any district. Such hearing, and any order issued pursuant thereto, shall be subject to the provisions of this section.

'(d) In establishing minimum prices for any district, the board shall consider only: 1. reasonableness of the proposed prices; 2. local conditions affecting the relation of the barbering profession to public health and safety; 3. minimum prices required to provide sanitary services and appliances necessary to minimize danger to public health, and, 4. costs necessarily incurred in such district in maintaining a barber shop in a healthful and sanitary condition.

'(e) In this act, unless the context otherwise requires, 'district' means any city, town, or village, or any clearly defined, contiguous portion thereof or territory in addition thereto, in which two (2) or more barber shops are located.'

Appellant has submitted six propositions of law in support of the contention of unconstitutionality; the first and, in our opinion, the crucial one being that the fixing of minimum prices for barbering services has no reasonable or substantial relation to public health, safety, or the general welfare, and hence, the acts of the legislature providing for such price-fixing violate Article 2, Section 4, of the Arizona Constitution, and Article 14 of the Constitution of the United States.

Article 2 of the Constitution of the state of Arizona is what is commonly known in state constitutions as a 'Declaration of Rights'. Section 4 thereof provides, 'No person shall be deprived of life, liberty, or property without due process of law.' This, of course, is the corollary to that portion of the Fourteenth Amendment to the Constitution of the United States, providing, '* * * nor shall any State deprive any person of life, liberty, or property, without due process of law; * * *.'

It should be immediately stated that there can be no question as to the right of the state to invoke the police power to regulate the fixing of minimum wages for personal services under certain conditions. This was finally and conclusively adjudicated in a case upholding the validity of a statute of the state of Washington establishing minimum wages for women. West Coast Hotel Co. v. Parrish, 1937, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330. However, it does not suggest that the right of a state to impose limitations on the power to contract is unrestricted or that the constitutional safeguards protecting the individual have otherwise been abandoned.

We conceive, therefore, the precise question for determination is: Under what circumstances may a state or its agencies fix minimum wages or prices for personal services? The answer to this requires an examination of the extent of the constitutional exercise of the police power by a state. Of necessity it is incapable of exact definition, as demonstrated by the following statements wherein the attempt is made to demonstrate the concept:

'The police (power) of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others.' II Cooley's Constitutional Limitations, (8th ed.), 1223.

'* * * The measure of police power must square with the measure of public necessity. * * *' Leonard v. State, 100 Ohio St. 456, 127 N.E. 464, 465.

Broad as this power may be, there is at least one limitation which this court has repeatedly recognized and simply stated to be: 'A law enacted in the exercise of the police power must, in fact, be a police law.' American Federation of Labor v. American S. & D. Co., 67 Ariz. 20, 189 P.2d 912, 918, affirmed 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. 222; State v. Borah, 51 Ariz. 318, 76 P.2d 757, 115 A.L.R. 254; State v. Childs, 32 Ariz. 222, 257 P. 366, 54 A.L.R. 736.

Other courts have stated the rationale thereby supplying the limitation. We quote:

'The police power is founded in public necessity, and only public necessity can justify its exercise. The result of its operation is naturally, in most instances, the abridgement of private rights. Private rights are never...