Lane v. State
| Decision Date | 23 September 1930 |
| Docket Number | 27515 |
| Citation | 232 N.W. 96,120 Neb. 302 |
| Parties | EMMA LANE v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: HERBERT RHOADES JUDGE. Reversed and dismissed.
Judgment reversed and cause dismissed.
Syllabus by the Court.
The appellate court will not pronounce a statute unconstitutional and void where a determination of the case does not require that the constitutionality of the statute be determined.
In this state all public offenses are statutory; no act is criminal unless the Legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law.
Criminal laws are to be strictly construed and a penalty must be imposed by clear words.
Evidence examined, and held that the conviction in this case was wholly unsupported thereby.
Error to District Court, Douglas County; Rhoades, Judge.
Emma Lane was convicted of practicing barbering without certificate of registration as a registered barber, and she appeals.
Reversed and cause dismissed.
Baldrige, Dorsey & Baldrige, for plaintiff in error.
C. A. Sorensen, Attorney General, and Homer L. Kyle, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ.
The record in this case discloses that Emma Lane, the defendant, was convicted in the district court for Douglas county on a complaint charging that she, "on or about the 31st day of July, A. D. 1929, in the county and state aforesaid, then and there being, did then and there practice barbering without a certificate of registration as a registered barber." Her motion for new trial was overruled, and from the sentence of the court she has appealed.
The material facts are stipulated, and it appears that the defendant for ten years last past has owned a beauty parlor and hair dressing establishment and followed the occupation of a cosmetologist in Omaha, Nebraska; that on the date alleged in the complaint she cut the hair of a young lady, one of the customers of the shop, without first obtaining a license under the barbers' act, as outlined in chapter 154, Laws 1929; that she had applied for and obtained a license under the cosmetologists' law, being chapter 156, Laws 1929, and as such was carrying on the practice of cosmetology on the date alleged in the complaint; that Emma Lane, as well as all other hair dressing and beauty shop proprietors, earns her living by and under the trade and practice of cosmetology, which includes hair dressing and beauty culture, it being usual and customary to cut the hair of women and children as a necessary incident to this art or vocation.
The contentions of the defendant on this appeal are: First, that the part of the so-called barbers' law (chapter 163, Laws 1927, chapter 154, Laws 1929) compelling cosmetologists and beauty parlor operators to take out a license under the provisions of the barbers' act is unconstitutional and void; second, that there is a conflict between the barbers' law and chapter 156, Laws 1929, and that the latter, as the last legislative word, has superseded the provisions of the former; third, that the so-called barbers' law is unreasonable and goes beyond the realm of the police power of the legislature and therefore void.
The defendant has cited as to the constitutional questions involved the recent decision of Banghart v. Walsh, 339 Ill. 132, 171 N.E. 154. In this case the supreme court of Illinois, in a well-reasoned opinion construing the terms of the Illinois barbers' act denying beauty culturists the right to cut hair without a barber's license, held these provisions deny due process since the requirement is unreasonable. While the reasoning of the Illinois court is appealing, and the facts then under discussion and those here involved appear quite similar, if not identical, still it is thought the instant case is not to be determined on the principle announced in that case.
"The appellate court will not pronounce a statute unconstitutional and void where a determination of the case does not require that the constitutionality of the statute be determined." Morse v. City of Omaha, 67 Neb. 426, 93 N.W. 734; War Finance Corporation v. Thornton, 118 Neb. 797, 226 N.W. 454.
The question fundamentally involved in the present case is whether a cosmetologist, who has in good faith strictly complied with chapter 156, Laws 1929, approved April 23, 1929, entitled "An act to regulate and license practice and teaching of cosmetology," etc., is required in addition to comply with the provisions of chapter 154, Laws 1929, entitled "An act to amend sections 1, 3, 4, 5, 6, 10, 10B., 16 and 17, chapter 163, Laws of Nebraska 1927, relative to the regulation of barbering," etc., approved April 22, 1929, and is subject to the penalties provided in the latter act for default or failure so to do.
Fundamentally, apart from statutory definition, a cosmetologist is not a barber simply because she may, as a necessary incident of her vocation, cut hair. A carpenter employs a plumb line, square and level, yet the common man would never think of defining the term "carpenter" as including and applicable to all who employ or use the plumb line, square and level in their respective trades.
In the case of Keith v. State Barber Board, 112 Kan. 834, 212 P. 871, the supreme court of Kansas had before it for construction an act entitled as one "creating a board of examiners to examine and license barbers; * * * providing for a license for barbers to practice their trade or calling, and providing punishment for a violation thereof." The first sentence of this Kansas act read: "It shall be unlawful for any person to follow the occupation of a barber in this state unless he shall have first obtained a certificate of registration, as provided in this act." The court said: It was held, however, that "The proprietor of a 'hair-dressing and beauty parlor,' the important features of whose business include cutting hair, massaging, clipping hair with barber clippers, singeing the hair, giving tonics, shampooing and manicuring, but not shaving the face, is not a barber within the meaning of that word as used in a statute subjecting the followers of that occupation to examination and regulation."
"In this state all public offenses are statutory; no act is criminal unless the legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law." State v. De Wolfe, 67 Neb. 321, 93 N.W. 746; State v. Pielsticker, 118 Neb. 419, 225 N.W. 51.
So, too, in construing or interpreting provisions of criminal law it is to be remembered that if any doubts of the meaning exist in penal laws they ought to be construed in favor of the accused. While in no manner negativing the necessity of reasonable construction, yet as between the government and the individual the benefit of the doubt, all other reasons being equal, ought in these cases to be given to the individual, not to authority; for the state makes the laws and authority has the power. Criminal laws are to be strictly construed, and a penalty must be imposed by clear words.
This penalty the state avers is to be found in provisions of chapter 163, Laws 1927, chapter 154, Laws 1929, hereafter referred to as the "barbers' act." But the only penalties subject to the limitations above suggested, enforced under the terms of the barbers' act, are to be found in section 9, ch. 154, Laws 1929, and of these the only penalties not necessarily excluded by the nature of the transaction here presented for determination are the following:
Section 1 of chapter 154, Laws 1929, reenacted without change the first and second paragraphs of section 1, ch. 163, Laws 1927. The first paragraph, thus continued,...
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