Gerard v. Smith

• Decision Date: 23 June 1932
• Docket Number: No. 2678.,2678.
• Citation: 52 S.W.2d 347
• Parties: GERARD et al. v. SMITH et al.
• Court: Texas Court of Appeals

52 S.W.2d 347

GERARD et al. v. SMITH et al.

No. 2678.

Court of Civil Appeals of Texas. El Paso.

June 23, 1932.

Rehearing Denied July 18, 1932.

Appeal from District Court, Dallas County; Robt. B. Allen, Judge.

Suit by H. L. Gerard and others against Eldon L. Smith and others. From a judgment dismissing the suit, plaintiffs appeal.

Affirmed.

A. H. Mount, Louis Wilson, and J. H. Synnott, all of Dallas, for appellants.

James V. Allred, Atty. Gen., and Jno. B. McCraw, Asst. Atty. Gen., and Wm. McCraw, Dist. Atty., Tom C. Clark, Guy L. Mann, Asst. Dist. Attys., and Alvin M. Owsley, all of Dallas, for appellees.

PELPHREY, C. J.

This is an appeal from a judgment sustaining a general demurrer to appellants' petition, and, upon their declining to amend, rendering judgment dismissing the suit.

The suit was instituted by Burton Barber College, Inc., a Texas corporation, with its principal office at Dallas, Tex., engaged in the business of instructing persons studying and preparing to become barbers, and owning several barber schools in Texas; H. L. Gerard, manager and principal owner of said corporation and barber colleges; W. B. Noles, who had taken instruction in barbering, and is an applicant for a license to practice barbering in Texas; and J. B. Harwell, who has practiced barbering a great part of the time since 1923, but who is denied the right to practice barbering without the payment of a license fee of $10. The defendants are the Texas state board of barber examiners, William McCraw, district attorney of Dallas county, Tex., and James V. Allred, Attorney General of the state of Texas.

Appellants attack the constitutionality of the acts of the Forty-First Legislature of Texas, known as the State Barber Law, and also the method and alleged favoritism of the barber board in the administration thereof.

Appellants prayed that appellees be restrained from instituting or prosecuting any criminal action for failure or refusal to comply with the terms of the Barber Law; that the barber board be restrained from showing partiality between the appellants and those favored by the board; from canceling permits theretofore issued to the said barber colleges, from enforcing the curriculum and text-books of the National Educational Council and International Union and National Barbers' Association; from discriminating between those associated with the national unions and associations and councils, and those not associated; and that the Barber Law be declared unconstitutional and void.

Appellees answered through separate attorneys, but together urged the general demurrer, which was by the court sustained. If the act in question is unconstitutional, then the enforcement of it, whether arbitrarily done or not, should be enjoined. Therefore we shall first consider that phase of the appeal.

The act in question was first enacted by the First Called Session of the 41st Legislature, c. 65, and amended at the Second Called Sess. (chapter 62) and Fifth Called Session (chapter 15), Vernon's Ann. P. C. art. 734a. It provides for the creation of a state board of barber examiners, prescribes the terms upon which such board shall issue certificates, or license or registration to practitioners of barbering; prescribes sanitary rules for the practice of barbering and penalties for violation of its provisions.

Appellants first attack the $10 license fee as being a tax on a mechanical pursuit in violation of article 8, section 1, of the state Constitution.

Among the other provisions of the section referred to, there appears the following: "It may also tax incomes of both natural persons and corporations, other than municipal, except that persons engaged in mechanical and agricultural pursuits shall never be required to pay an occupation tax."

The two questions which arise, therefore, are: Is barbering a mechanical pursuit, and is the license fee by the act imposed such a tax as is prohibited by the Constitution? While the Court of Criminal Appeals in a majority opinion in the case of Jackson v. State, 55 Tex. Cr. R. 557, 117 S. W. 818, held that the act of the Thirtieth Legislature which imposed a license tax on barbers contravened the provision of the Constitution because barbering was a mechanical pursuit, yet the same court in a later opinion in the case of Ex parte Cramer, 62 Tex. Cr. R. 11, 136 S. W. 61, 36 L. R. A. (N. S.) 78, Ann. Cas. 1913C, 588, held that fees imposed by a city to pay the cost of necessary inspection of the installation of electrical appliances inside and outside of buildings in the city were not taxes within the article.

Judge Davidson, who wrote the first opinion, was a member of the court, and concurred.

The San Antonio Court of Civil Appeals in the case of Hanzal v. City of San Antonio, 221 S. W. 237, held valid an ordinance of San Antonio charging barbers a license fee, and held that, in the absence of something in the ordinance to show that it was intended to raise revenue, it would be presumed to contemplate regulation. A writ was refused by the Supreme Court in the case.

The above holdings, we think, are sufficient basis for the conclusion that the license fee here, in view of the fact that the act itself provides that all money collected by the board shall be placed in a special fund and used only for carrying out the purposes of the act, is not a tax within the prohibition of the cited article of the Constitution, and that the provision therefor is not invalid. The fee not being an occupation tax within section 1, of article 8, it will not be governed by section 2, of the article, providing that "all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax"; and invalid because being discriminatory as contended by appellants in their proposition under point No. 8.

The act is further assailed as being contrary to the constitutional provisions, in that its enforcement will deprive appellees of property, privileges, liberties, and immunities without due process of law; that it delegates to the board unrestrained power to legislate and suspend the law at will or to act without any restraining rules by the law or other tribunal; that the provision for appeal from the action of the board, being limited to the courts of Travis county, is a denial of the privilege of resorting to the courts; that it denies to appellees the right to a trial by jury of the issues as to their right to follow their trade; that the act is contradictory, confusing, and misleading, in that it provides that no one may obtain a permit unless he has first been an assistant to a barber, and that no one shall be an assistant barber unless he has attended and graduated from a barber college operated by permission of the board; that it discriminates between graduates of barber schools operated by permission of the board and those who early mastered the trade from experience and graduates from other schools; that it is indefinite, uncertain, and unintelligible in requiring students to be able to read intelligently and write clearly the English language, while it requires one who has been an assistant to a barber in another state to be a graduate from the seventh grade in grammar school; that it delegates to the board both legislative and judicial functions, and does not require that the members thereof shall be competent to perform such functions; that the enforcement of the act will render practically worthless the business of appellees Gerard and the corporation, which they have spent thousands of dollars to build up; that the act requires applicants for a license to qualify to diagnose and treat diseases which the law prohibits them from doing without being licensed as physicians and surgeons; that the act is not justified as a health measure and not within the police power of the state; that it usurps the power granted by law to the state health board; that its object is to restrict applicants to the calling of barbering; and that it impairs the freedom of appellees to contract with students and assistant barbers.

Appellants argue that the act is discriminatory in many particulars, but especially because it exempts from its operation those persons owning what are called beauty shops; that this court will take judicial notice, especially in connection with the allegations admitted by the general demurrer, that beauty parlors and barber shops are direct competitors one against the other; that a great part of the barber's business is cutting hair for women; and that, if beauty parlors are allowed to do this same thing and not pay any tax, not attend school, and not go to any of the expense imposed upon the barber by the act, it is a case of vicious discrimination and contrary to our Constitution.

In beginning the discussion of this question, the first thought which naturally occurs is as to the power of the Legislature to enact any legislation governing the practice of barbering.

If it...