Green v. Shama, 55775

Decision Date24 April 1974
Docket NumberNo. 55775,55775
Citation217 N.W.2d 547
PartiesCharles A. GREEN et al., Appellees, v. Rose J. SHAMA and Gary F. McCormack, Appellants.
CourtIowa Supreme Court

Joe Cosgrove, Sioux City, for appellant, Gary F. McCormack.

Harry H. Smith, Sioux City, for appellees.

Considered en banc.

MASON, Justice.

This is a declaratory judgment action brought by Charles A. Green, Harold L. Erichsen and Ruth White Hamann as representative members of a class consisting of licensed barbers in the state of Iowa against Rose J. Shama and Gary F. McCormack, both licensed cosmetologists, but not licensed barbers, practicing in Sioux City who have cut adult men's hair for money and advertised in the Sioux City Journal (McCormack) that they could do so.

Plaintiffs seek to have the court declare sections 157.1 and 158.2, The Code, are constitutional.

Only McCormack appeared and filed answer in which he asserted as an affirmative defense plaintiffs are not entitled to the declaratory relief sought because their rights, status and legal relations are not affected by sections 157.1 and 158.2.

The trial court held plaintiffs were proper parties to seek and obtain declaratory relief under rule 262, Rules of Civil Procedure; sections 157.1 and 158.2, The Code, are constitutional as valid exercises of the police power of the state of Iowa and concluded that contrary to defendant's contention the licensing laws do not compel defendant to discriminate against male members of the public in a manner contrary to the provisions of chapter 105A, The Code, 1971, now chapter 601A, The Code, 1973.

Defendant appeals assigning as issues for reversal: (1) error in holding plaintiffs were proper parties to test the constitutionality of the statutes by a declaratory judgment action; (2) in concluding sections 157.1 and 158.2 are constitutional; and (3) in holding these sections do not force defendant to violate Iowa's Public Accommodations Law, chapter 105A, The Code.

From the record we learn that differing approaches have been taken to men's and women's hair styling because of physiological differences between the sexes. Females have finer features due to the bony structure of the face and to the presence of a layer of fatty tissue which covers their bodies but not a male's. The female hairline differs due to the absence of sideburns and facial hair; a female's hair does not grow as close to the top of the ear or as far down the neck as a male's. The female hairline grows straight across the forehead and does not recede like the male's. Men suffer from baldness far more than women.

Adult male features change more than a female's because of facial hair, sideburns and exposure to the elements at work. Changes in a female's hair occur during menstrual and pregnancy periods. Health hazards are generally of greater incidence in cutting men's hair because they often come to a barber from performing manual labor and thus there are higher probabilities of spreading contagious diseases; the same hazards are not generally present in regard to women.

Because of these differences hair styling between the sexes differs. As a general rule, male hair has been cut short and, even if cut long, has a square, box-like appearance designed to look masculine. Female hair styles are long and, even if short, are fashioned to give an oval, attractive, feminine look.

Cosmetologists and barbers undergo different training. To be licensed in Iowa a person must attend a barber school and receive 1800 hours of training, apparently about a six-month course. Almost 90 percent of this training is concerned with the cutting of men's hair. At barber school a person becomes proficient with the use of barber shears, barber clippers, straight edge razor, blow wavers, hot combs and other hair styling instruments. After barber school there is an 18-month apprenticeship period served under a licensed barber. Ninety-five percent of this period is spent cutting men's hair.

An Iowa cosmetology course consists of 2100 hours, 75 percent of which involves giving shampoos and sets to women. In a course taken by one of plaintiffs' witnesses, 214 hours were spent in hair shaping, only on women, also shortening and thinning of hair was done but again only on women. No work was done on males and very little dry, fine tapering of hair as done on males was performed. No apprenticeship is required; a graduate may go directly to his own shop. Although only one witness testified on the full training of future cosmetologists, apparently this is their normal training. The chief instruments instructed about are a small shear and a small Weck safety razor with guard.

Different sanitary standards are apparently applicable to the two professions; plaintiffs' witness, Foster, a licensed barber who also attended a cosmetology school, stated that cosmetologists are not required to have individual lavatories, often do not wash their hands before serving clients, often use unsanitary brushes and do not normally have the wet sterilizing solutions and alcohol burners for working instruments used by barbers. McCormack gave adverse statements to much of this, relying on the fact his salon passed cosmetology licensing standards; he also enumerated his personal hygenic habits. No rules or standards of sanitary conditions for either barbers or cosmetologists were admitted as evidence.

Two adult males had their hair cut by each defendant for a fee. One of plaintiffs' witnesses went to the Magic Mirror beauty shop after seeing an advertisement in the Sioux City Journal. He was serviced by one Felix (apparently actually McCormack) for a fee. Felix did not wash his hands prior to working on this witness nor did he use clean linens or a neck strip, both of which are allegedly required by Iowa law. There were no visible means of disinfecting instruments, shears or combs, nor were any disinfected prior to use, also allegedly contrary to Iowa law.

In recent years there has been a trend towards longer hair for men. A defense witness testified that he was unsatisfied with the way barbers cut his hair and went to McCormack, of whom he had no complaints.

The thrust of plaintiffs' testimony was that cosmetologists are untrained, vis-a-vis barbers, to cut men's hair, even in the now popular longer styles. Defendant contends there is no difference in hair styling between men and women now that men wear their hair longer, and a cosmetologist is equally able to cut men's hair.

I. Defendant first contends plaintiffs are not proper parties to bring this declaratory judgment action. He argues since statutes are presumed to be constitutional, State v. Vick, 205 N.W.2d 727, 729 (Iowa 1973); Brown Enterprises, Inc. v. Fulton, 192 N.W.2d 773, 776 (Iowa 1971); Stanley v. Southwestern Com. Col. Merged Area, Etc., 184 N.W.2d 29, 32 (Iowa 1971); Lewis Consolidated Sch. Dist. v. Johnston, 256 Iowa 236, 244, 127 N.W.2d 118, 123, it is unreasonable to contend a plaintiff could seek to have a statute declared constitutional; thus, the only question which could be presented by such an action would be Invalidity of the statute and no controversy concerning the constitutionality of sections 157.1 and 158.2 is presented by the pleadings.

Plaintiffs contend a justiciable controversy exists between the parties regarding the validity of these statutes since defendant interpreted the licensing laws as unconstitutional and in turn engaged in conduct which infringed plaintiffs' rights under section 158.2. They insist that both the pleadings and evidence presented a substantial conflict between the parties which centered upon the validity of Iowa licensing laws. In support of this contention plaintiffs rely upon the facts alleged in their petition regarding defendants' conduct which presented an open challenge to the constitutionality of the statutes involved.

The first requirement for the bringing of a declaratory judgment action is that a justiciable controversy actually exists. Rule 261, R.C.P., empowers the court to grant declaratory judgments in appropriate circumstances which are seen from the following quote:

'The basic and fundamental requirement under rule 261 is that the facts alleged in the petition seeking such relief must show there is a substantial controversy between the parties having adverse legal interests of sufficient immediacy and reality to warrant a declaratory judgment. There must be a justiciable controversy as distinguished from a mere abstract question.' McCarl v. Fernberg, 256 Iowa 93, 95, 126 N.W.2d 427, 428. See also Wesselink v. State Dept. of Health, 248 Iowa 639, 643, 80 N.W.2d 484, 486; Wright v. Thompson, 254 Iowa 342, 117 N.W.2d 520; Katz Investment Co. v. Lynch, 242 Iowa 640, 648, 47 N.W.2d 800, 805; Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826; Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959--960, 22 L.Ed.2d 113.

The above cases also stand for the corollary principle that a mere abstract question will not support an action for declaratory judgment.

Rules 261 and 262, R.C.P., are to be liberally construed in order to carry out their purpose. Lewis Consolidated Sch.Dist. v. Johnston, 256 Iowa at 241, 127 N.W.2d at 122; Gradischnig v. Polk County, 164 N.W.2d 104, 107 (Iowa 1969).

In Gradischnig the court said: 'Finally, rules 261--262, R.C.P., relative to declaratory judgments, must be accorded a liberal construction to effectuate their purpose in order to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations. * * * (citing authority).' Gradischnig was a class action by residents and voters alleging voter discrimination in supervisor districts. An alleged denial of equal protection together with the relevant facts, showed existence of a justiciable controversy sufficient to sustain an action for declaratory judgment. Lewis, supra, was an action seeking a determination that a statute was...

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