Herrin v. Arnold
| Decision Date | 26 July 1938 |
| Docket Number | 28307. |
| Citation | 82 P.2d 977,183 Okla. 392,1938 OK 440 |
| Parties | HERRIN et al. v. ARNOLD, District Judge. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 27, 1938.
Syllabus by the Court.
1. Since there is no closed class or category of business affected with a public interest, the court in applying the Fifth and Fourteenth Amendments to the Constitution of the United States, U.S.C.A.Const. Amends. 5, 14, and corresponding sections of the State Constitution, will determine in each case whether the circumstances are such as to justify the challenged regulation as a reasonable exertion of governmental authority or condemn it as arbitrary and discriminatory.
2. The limitations of the police power are plastic in their nature and will expand to meet the actual requirements of an advancing civilization and adjust themselves to the necessities of our multiplying complexities in moral sanitary, economic and social conditions.
3. In view of the announced function of the court, the accepted conception of the police power of the state, and the recognized fact that the barber industry is within the regulatory power of the state as to sanitary and health conditions, it cannot be held that the price control sections of Article 2 of Chapter 24 of the Session Laws of 1937, 59 Okl.St.Ann. § 91 et seq., are so arbitrary, discriminatory or unreasonable in their general features, as to violate the provisions of either the State or Federal Constitutions which deal with liberty, due process or freedom of contract.
4. Although, in general, the power to legislate cannot be delegated, the Legislature has the right to delegate to designated instrumentalities certain powers of fact finding and regulation it possesses, when it fixes the limits within which said powers are to be exercised, and in doing so it does not unconstitutionally delegate legislative power.
5. A law may be general and uniform in its nature and be within the recognized power of the Legislature, although it may not be universally applicable.
6. An unsuccessful attack on the general features of a law as unconstitutional does not preclude a litigant from showing or proving that such law in its operation may be so discriminatory and unreasonable as to make certain applications thereof unlawful.
Original application for writ of prohibition by Dalton Herrin and Raymond Herrin against Ben Arnold, District Judge, District Court of Oklahoma County, 13th Judicial District, State of Oklahoma, to prevent the defendant from taking further action in an injunction in suit brought by the State Board of Barber Examiners against the present plaintiffs.
Writ denied.
J. T. Dickerson, of Edmond, and L. V. Reid and Rayford S. Reid, both of Oklahoma City, for plaintiffs.
Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for defendant.
Walter Mathews, of Cushing, amicus curiae.
The point at issue here is the validity of those sections of Article 2 of Chapter 24 of the Session Laws of 1937, 59 Okl.St.Ann. § 91 et seq., which have to do with the fixing of minimum prices barbers may charge for their services. The case is here on application for writ of prohibition to restrain a district judge from making any further orders in an injunction suit brought by the Board of Barber Examiners of the State of Oklahoma against the plaintiffs here.
According to their petition the plaintiffs have for many years conducted their barber shop in the city of Edmond and have, by charging low prices, built up a substantial business; and they have at all times conformed to sanitary regulations.
On September 11, 1937, an organized group of more than seventy-five per cent of the duly licensed and practicing barbers in said city entered into an agreement establishing minimum prices. This and the acts of the Barber Board in reference thereto were done under the purported authority of section 12 of said act, 59 Okl.St.Ann. § 102. The ageement was presented to the board and, so far as this case is now concerned, was duly considered and an investigation made. Thereupon an order was made fixing minimum prices for barber work in the city of Edmond. When the plaintiffs refused to conform to the order the injunction suit and this action as a consequence thereto resulted. Sufficient showing has heretofore been made to invoke the jurisdiction of this court. Such further facts as may be pertinent will be stated in the discussion.
The validity of the statute is challenged on the ground that the act, particularly section 12, is in contravention or violation of the following sections of the State Constitution: Section 2 of Article 2; Section 1 of Article 4; Section 1 of Article 5; Section 59 of Article 5, Section 7 of Article 2; and Section 51 of Article 5, Okl.St.Ann. Const. art. 2, §§ 2, 7; art. 4, § 1; art. 5, §§ 1, 51, 59. It is further contended that it violates Article 5 of the Bill of Rights and the Fourteenth Amendment to the Constitution of the United States, U.S.C.A.Const. Amends. 5, 14.
Appellate courts of four states have declared a similar law unconstitutional. Duncan v. City of Des Moines, 222 Iowa 218, 268 N.W. 547; City of Mobile v. Rouse, 27 Ala.App. 344, 173 So. 254; Id., 233 Ala. 622, 173 So. 266, 111 A.L.R. 349; State v. Ives, 123 Fla. 401, 167 So. 394; Ex parte Kazas, 22 Cal.App.2d 161, 70 P.2d 962. Of these cases the first three were decided before the decision of the Supreme Court of the United States in the case of West Coast Hotel Company v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330, which specifically overruled the case of Adkins v. Children's Hospital, 261 U.S.
525, 43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238.
The Adkins Case had long stood as a guidepost pointing the way legislation in reference to price fixing for personal services or commodities should go. But with increasing economic complexities, greater demands for governmental supervision, keener competition, and the increasing exercise of the latent power of the Legislature in reference to conditions and hours of labor and safeguards for the public interest, it became evident that old guideposts must be repainted or their direction changed. Hence we find in the New York milk control case of Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469, and others, a tendency to change the direction; and in the West Coast Hotel Case the highest court in the land turned the signpost completely around, adopting in effect the reasoning of the minority in the Adkins Case. Consequently, so far as the Federal Constitution is concerned, the question is now: How far in the new direction may we go before we encounter barriers of the Constitution?
The California case, supra, discusses the West Coast Hotel Case and the others and yet finds the way still barred to legislation such as this. A consideration of that and similar cases is proper and will receive attention at the appropriate places.
Most fundamental of the questions presented is whether the Legislature has the power to fix or provide for the fixing of minimum prices. This question arises largely under section 2 of article 2 of the State Constitution and the due process clauses of the Federal Constitution. The State Constitution provides that all persons have the inherent right to liberty, the pursuit of happiness and the enjoyment of the gains of their own industry. Respecting this provision we said in Nation v. Chism, 154 Okl. 50, 6 P.2d 766:
"The right to labor or earn one's livelihood in any legitimate field of industry or business is a right of property, and any unlawful or unreasonable interference with or abridgment of such right is an invasion thereof, and a restriction of the liberty of the citizen as guaranteed by the Constitution."
The foregoing statement is true, of course, as to any legitimate occupation, and it will be noted that the barrier is against any unlawful or unreasonable interference or abridgment of the right and not against any interference or abridgment of the right. It will be noted also that in the same case we said further:
The Legislature has attempted to regulate the barbering occupation by prescribing certain sanitary regulations for barber shops and personal conduct. Sections 4325 and following, O.S.1931, 59 Okl.St.Ann. § 61 et seq.; chapters 60 and 185, S.L.1933, 59 Okl.St.Ann. §§ 72 et seq. Laws of such a nature have been generally upheld as within the police power of the estate. See Patton v. Bellingham, 179 Wash. 566, 38 P.2d 364, and annotation thereto in 98 A.L.R. 1088. And the Supreme Court of the United States early declared that the Federal Constitution does not prevent the state for the good of its society from passing legislation to promote the health, peace, morals, education and good order of the people. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923. And in Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145, that high court said (page 734):
Since then the right to reasonable regulation has been repeatedly recognized by this and other courts.
The inherent police power of the state...
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...F.3d 174, 117 S.Ct. 949, 136 L.Ed.2d 837 (4th Cir. 1996), cert. denied, 519 U.S. 1111 (1997), 1422 Herrin v. Arnold, 183 Okl. 392, 82 P.2d 977 (1938), Hess v. State of Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973), 1435, 1448 Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.E......