Ex Parte Lucas

• Decision Date: 19 February 1901
• Citation: 61 S.W. 218,160 Mo. 218
• Parties: Ex parte LUCAS.
• Court: Missouri Supreme Court

61 S.W. 218

160 Mo. 218

Ex parte LUCAS.

Supreme Court of Missouri.

February 19, 1901.

HABEAS CORPUS — CONSTITUTIONAL LAW — SPECIAL LEGISLATION—BARBERS— REGULATION—LICENSE.

1. Rev. St. 1899, § 5037, providing that the members of the board of examiners for barbers shall each receive a compensation of $3 per day for his services and necessary traveling expenses, which shall be paid out of any money in the hands of the treasurer of the board, is not in conflict with Const. art. 4, § 43, providing that the general assembly shall have no power to divert any revenue received by the state, or to permit money to be drawn from the treasury, except in pursuance of regular appropriations made by law, since the money authorized to be collected under the act is not state revenue.

2. Rev. St. 1899, § 5035, creates a board of examiners for barbers, and provides that the governor shall appoint one member each from those recommended by the State Barbers' Protective Association, the Boss Barbers' Protective Association, and the Journeyman Barbers' Union. Held, that a person arrested on complaint of such board for pursuing the occupation of a barber without license cannot object that such method of appointing the board is unconstitutional because it limits the governor's privilege of appointment to persons recommended by the unions specified, since the governor alone can make that objection.

3. Such restriction of the governor's power of selection is authorized by Const. art. 14, § 9, providing that the appointment of all officers not otherwise directed by the constitution shall be made in such manner as may be prescribed by law, since the constitution does not prescribe how such board shall be appointed.

4. Acts 1899, p. 44, approved May 5, 1899 (Rev. St. 1899, c. 78), creates a board of examiners for barbers, and makes it unlawful for any barber in a city of 50,000 inhabitants to pursue the occupation of a barber unless he procures a license from such board "within 90 days after the approval of the act." Const. art. 4, § 36, provides that, except in the case of a declared emergency and appropriations, no law shall take effect until 90 days after the adjournment of the session at which it was enacted. The general assembly adjourned May 22d. Held, that the term "within 90 days after the approval of the act" must be considered a technical term, having a peculiar and appropriate meaning in law, and understood under the constitution to mean 90 days after the act can and does constitutionally take effect; hence the act is not objectionable as limiting the time for acquiring a license to a period which expired before the act took effect so that a board could be appointed under it.

5. Acts 1899, p. 44 (Rev. St. 1899, c. 78), regulating the occupation of barbers, in section 1, provides that the provisions of the law shall not apply to barbers in any city, town, or village containing less than 50,000 inhabitants. Held, that the act is not unconstitutional, as special legislation, since there are already several cities to which it applies, and it is a continuing act, which will apply to all other cities attaining the specified population, and the necessity for regulating the occupation of a barber is greater in a large than in a small city.

6. Where a person is arrested for violating the provisions of Rev. St. 1899, c. 78, which declares it unlawful to follow the occupation of a barber without first obtaining a certificate of registration, he may contest the constitutionality of the law by habeas corpus.

Valliant, Brace, and Robinson, JJ., dissent.

In banc. Application by Daniel Lucas for a writ of habeas corpus directed to Samuel Chiles, marshal of Jackson county. Dismissed.

Hamner & Hamner, for petitioner. Dodge & Mulvihill, for respondent.

MARSHALL, J.

This is a proceeding by habeas corpus to test the legality of the imprisonment of the petitioner by Samuel Chiles, marshal of Jackson county, under an information filed in the criminal court of Jackson county by the prosecuting attorney of that county charging him with practicing the occupation of barber without having procured a certificate of authority so to do from the state board of examiners for barbers, contrary to the provisions of chapter 78, Rev. St. 1899, being "An act to establish a board of examiners and to regulate the occupation of a barber, in this state, and to prevent the spreading of contagious disease," approved May 5, 1899 (Acts 1899, p. 44). The petitioner has not yet been tried on that information, but pending the trial he applied to one of the judges of this court, and obtained the writ of habeas corpus. The petitioner asserts that the act of 1899 is unconstitutional and void, and therefore there is no law or authority warranting his arrest, detention, or prosecution, and hence he is entitled to have his liberty restored to him by this great writ of right, which the constitution of this state (section 26, art. 2) declares shall never be suspended. The act of 1899 is claimed to be in conflict with section 53, art. 4, section 1, art. 6, section 3, art. 10, section 4, art. 2, section 30, art. 2, section 43, art. 4, section 7, art. 9, section 28, art. 4, and the whole of article 3 of the constitution of Missouri, and with the fourteenth amendment to the constitution of the United States, and with section 2, art. 4, of the federal constitution. If the act offends against so many provisions of the organic law of the United States and of the state of Missouri, the petitioner is suffering a grievous wrong by being arrested, cast into prison, and compelled to stand trial and employ counsel to defend him, simply because he has offended against its provisions, when the act itself is a greater offender against the law than he is against the act. The particular points relied on by petitioner as affecting the unconstitutionality of the act are: (1) That it is a special law, because it applies only to such cities as now have a population of 50,000, and does not apply to such cities as may hereafter attain such a population. (2) That it requires all barbers who were practicing their trade on the date of the passage of the act (May 5, 1899) to apply to the board of examiners for a certificate within 90 days thereafter, which time would expire August 5th, and as the law did not take effect until August 22d, 90 days after the general assembly adjourned on May 22d, the governor could not appoint a board of examiners until that time, and therefore there could be nobody to issue a certificate. Or, otherwise stated, the act requires barbers who were practicing their trade on May 5th to obtain a certificate by August 5th, when there could be no board authorized to issue such a certificate until August 22d, or until 17 days after the expiration of the time limited by the act for such barbers to obtain a certificate. The result is claimed to be that barbers who were practicing their trade on May 5, 1899, were effectually barred from ever afterwards practicing their trade in any city having over 50,000 inhabitants, and would be compelled to move to cities having less than 50,000 inhabitants in order to practice their trade. (3) That the act requires the governor to appoint a board of three examiners, one to be recommended by the Missouri State Barbers' Protective Association, one by the Boss Barbers' Protective Association, and one by the Journeymen Barbers' Union,—all, however, subject to approval as to qualifications by the state board of health, and this method of appointing is claimed to interfere with the division of powers between the legislative and executive branches of the government; and, further, because it requires a recommendation from such unions as a condition precedent to the right of the governor to appoint, it is asserted that it might in effect repeal the law, because such unions might refuse to recommend any one, and because in this way legislative functions are delegated to these unions. (4) That the act provides that the board of examiners shall receive a compensation of three dollars a day and railroad and traveling expenses, to be paid out of any money in the hands of the treasurer of the board; and this is asserted to be in conflict with section 43, art. 4, of the constitution, which provides that all money received by the state from any source whatever shall go into the treasury of the state, and shall not be drawn out except pursuant to a regular appropriation made by law. These propositions will be considered in the inverse order of their statement, so disposing of the least meritorious first.

The fourth contention is not well founded, for the simple reason that section 43, art. 4, applies only to money provided for and received by the state. The money authorized to be collected under this act is not state revenue, but is simply a provision to make the board of examiners self-supporting.

The third contention is one which is not available to the petitioner. If the act is unconstitutional because it limits the governor's privilege of appointment to persons recommended by the unions specified, the governor alone could object. If he does not do so, no one else can complain. That no such trouble has arisen under this act is shown by the fact that it appears that in fact the governor has appointed a board of examiners,—whether they were recommended by such unions, or whether the governor treated that provision of the act as unconstitutional, and appointed such persons as he chose, does not appear,—and that this prosecution is at the instance of that board. No rights of this petitioner have been invaded by the method of appointment provided by this act. But it may be observed, en passant, that section 9 of article 14 of the constitution provides, "The appointment of all officers not otherwise directed by the constitution shall be made in such manner as may be prescribed by law," and that the constitution does not prescribe how the board of examiners...