Hollingsworth v. State Board of Barber Examiners

• Decision Date: 28 June 1940
• Docket Number: 27381.
• Parties: HOLLINGSWORTH v. STATE BOARD OF BARBER EXAMINERS.
• Court: Indiana Supreme Court

28 N.E.2d 64

217 Ind. 373

HOLLINGSWORTH v. STATE BOARD OF BARBER EXAMINERS.

No. 27381.

Supreme Court of Indiana

June 28, 1940

Appeal from Marion Circuit Court; Earl R. Cox Judge.

Ira M. Holmes, of Indianapolis, for appellant.

Omer S. Jackson, Atty. Gen., Thomas Longfellow, Deputy Atty. Gen and Clyde P. Miller, of Indianapolis, for appellee.

SHAKE Judge.

The sole question presented by this appeal is the constitutionality of sections 3 and 4, of chapter 108, Acts of 1939, sections 63-330, 63-331, Burns' 1933, Pocket Supp., Sections 4082-3, 4082-4, Baldwin's Statutes. These sections are as follows:

'Sec 3. Minimum Price Agreements. Whenever a scale of minimum prices for barber services shall be submitted to the State Board of Barber Examiners by any organized and representative group of barbers, after such scale has been agreed upon and signed by at least eighty per cent of the barbers licensed by said board and operating in each city or town within any trade area, limited and defined in the scale the State Board of Barber Examiners shall have power to approve such agreements and to declare and establish within such trade area, by official order, the minimum prices for any and all work or service usually performed in barber shops.

'Before approving such agreements the board, within thirty days after such schedule is submitted, shall determine by investigation, whether such suggested prices are reasonable and sufficient to enable barber shops in such trade area to operate in keeping with the purposes of this act in minimizing danger to the public health and safety incident to such work.

'In determining reasonable minimum prices, the board shall take into consideration the necessary costs incurred in the particular trade area in maintaining barber shops in a clean, healthful and sanitary condition. If the board shall find after investigation that the minimum prices fixed in any such trade area are insufficient to provide adequate service for protecting the public health and safety, or that such prices are excessive or unreasonable such agreement shall not be approved.

'Sec. 4. Opening and Closing Hour Agreements. The Board of Barber Examiners shall have power to approve and, by official order, to establish the days and hours when barber shops may remain open for business, whenever agreements fixing such opening and closing hours have been signed and submitted to the board by any organized and representative group of barbers, and after such agreements have been signed by at least eighty per cent of the barbers licensed by said board and operating in any trade area of this state, and shall have like power to investigate the reasonableness and propriety of the days and hours fixed by such agreements as is conferred under Sec. 3 of this act concerning price agreements.'

Section 1 of said act declares that barbering and the operation of barber shops is affected with a public interest, and that the provisions of said act will tend to protect the public health and safety by facilitating adequate sanitary inspection and supervision and by safeguarding fair competition. Section 2 defines the term 'trade area' as used in sections 3 and 4 as 'any circumscribed locality of the state but applicable only to the urban territory--whether of cities or towns--within the same, though such 'trade area' may consist of but one city or one town, or a number of cities and towns, not less than all such cities and towns within the territory embraced in the trade area.'

It is important to have a clear understanding as to how the act will operate if sections 3 and 4 are permitted to stand. The initiative for the establishment of a scale of minimum prices or regulations governing opening and closing hours must be taken by one or more licensed barbers. The boundaries of a proposed trade area must be determined upon. This area may consist of a single incorporated town or city, or any part of or all of the state of Indiana. The lines dividing existing political subdivisions may be ignored and the state may be gerrymandered as the proponents see fit, so long as the regulations are made applicable to all the cities and towns in the proposed area. A city, irrespective of its size, may not be embraced in more than one area, and barbers and shops without cities and towns may not be made subject to the act. Having determined upon a trade area, the proponents must next establish a scale of minimum prices for barber services, if they are proceeding under section 3, or a schedule of opening and closing hours, if proceeding under section 4. This scale or schedule must then be agreed upon by at least 80 per cent. of the licensed barbers operating in each of the cities and towns situated in the contemplated trade area. After sufficient signatures are obtained, the next step for the proponents is to find some 'organized and representative group of barbers' who will submit the proposed scale or schedule to the State Board of Barber Examiners. The act does not undertake to define what is meant by an 'organized and representative group of barbers,' nor is it specified that the members of such group shall be licensed barbers or barbers operating in the cities and towns of the trade area proposed to be created. Within 30 days after such scale or schedule is submitted to the state board, said board shall determine by investigation whether such suggested prices or closing regulations are reasonable. If it finds that the proposed rates or regulations are reasonable, it may approve the same, and thereupon said rates or regulations shall have the force and effect of law and be binding upon all licensed barbers and barber shops in the municipalities situated in the trade area. If the board finds that the proposed schedules are unreasonable, they shall be rejected. The board has no authority to change, modify, or adjust any scale or schedule submitted to it, or to vary the boundaries of any proposed trade area. Subsequent sections of the act provide that after a trade area has been established and a schedule of rates or regulations has been approved, the board may revoke the license of any barber failing to comply therewith, and it may also apply to a court of equity for an injunction to enforce said regulations.

This court will not concern itself with the expediency of or need for legislation. These matters are for the members of the General Assembly, who are directly answerable to the people, by whom they are elected. We are, however, charged with the responsibility of determining, when called upon to do so, whether a legislative act comports with the Constitution. Among the limitations imposed upon the Legislature are those that it shall not delegate its lawmaking power to others and that it shall not pass any law, the taking effect of which shall be made to depend upon any authority, except as provided in the Constitution. Constitution of Indiana, art. 4, sec. 1; art. 1, sec. 25.

We are therefore required to say whether the sections of the act of 1939 now under consideration do violence to the above provisions of the Constitution. The prohibition against the delegation of authority is a mandate of very great importance, calculated to confine the legislative branch to its proper sphere. A violation of that express provision would strike with deadly force at those checks and balances that are essential to the maintenance of our from of government. The corollary injunction with respect to the authority under which laws shall take effect is equally vital. Under our constitutional system the functions of the government are precisely defined and responsibilities are definitely placed. These are positive commands of the people acting in their sovereign capacity, and they may not be ignored. A delegation of legislative authority does not occur when it is provided in a statute that some administrative officer or board shall have the responsibility of determining whether facts or a state of things exists upon which the law makes or intends to make its own action depend. There is a clear distinction...