Liberto v. State's Attorney of Baltimore City

• Citation: 223 Md. 356,164 A.2d 719
• Decision Date: 07 November 1960
• Docket Number: No. 48,48
• Parties: Pietro D. LIBERTO v. STATE'S ATTORNEY OF BALTIMORE CITY and Board of Barber Examiners of the State of Maryland.
• Court: Maryland Court of Appeals

Page 356

223 Md. 356

164 A.2d 719

Pietro D. LIBERTO v. STATE'S ATTORNEY OF BALTIMORE CITY and Board of Barber

Examiners of the State of Maryland.

No. 48.

Court of Appeals of Maryland.

Nov. 7, 1960.

Calman A. Levin, Baltimore (Daniel C. Joseph and Abram C. Joseph, Baltimore, on the brief), for appellant.

Joseph S. Kaufman, Asst. Gen. (C. Ferdinand Sybert, Atty. Gen., on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

The plaintiff, Liberto, appeals from a decree of the Circuit Court of Baltimore City dismissing his amended bill of complaint for a declaratory decree and an injunction, by which he sought to have the so-called Barber Act (the Act) declared unconstitutional and to have its enforcement enjoined. The defendants-appellees are the State's Attorney of Baltimore City and the Board of Barber Examiners of the State of Maryland (the Board). Mr. Liberto has been a licensed barber in Baltimore since 1915.

The defendants demurred to the plaintiff's original bill and their demurrers were sustained. The plaintiff amended his bill and the defendants again demurred. This time their demurrers were overruled and the case went to trial. The evidence consisted of the testimony of the plaintiff and two stipulations as to what the testimony of the President of the Board and of another member would have been. The Chancellor dismissed the bill because the plaintiff failed to show such infringement of his rights as would establish a sufficient interest to maintain the suit.

The Act is now contained in Code (1957), Art. 43, Secs. 311-325. In its present form, it consists chiefly of the revision of the laws relating to the occupation of barbering made by Ch. 792 of the Acts of 1957. It also includes an amendment made by Ch. 479 of the Acts of 1959, which reduced the subdivisions of the State exempted from the Act from five counties to one.

The bill attacks the Act on some fifteen grounds. The attacks pressed by the appellant in this court are in brief: (a) that the Act is a regulation of a common calling which transcends the limits of the police power; (b) that it contains an unlawful delegation of power to the Board because of the absence of standards for the guidance of that administrative body; (c) that the exemption of one county renders the Act unconstitutional; (d) that the provisions of the Act relating to apprentices are unconstitutional (i) because they are unreasonable and arbitrary and (ii) because of the absence of standards or definitions; (e) that the provisions for the examination of shops are unconstitutional because they are unreasonable and arbitrary; (f) that the Act is void as a special law which attempts to supersede what is already provided for by general law.

We shall comment on one of these points before going into the consideration of the appellant's standing to maintain this suit.

As to contention (a) above, the regulation of the barbering business is within the constitutional power of the Legislature in the exercise of the police power in the interest of public health and safety. See State v. Tag, 100 Md. 588, 60 A. 465; Criswell v. State, 126 Md. 103, 94 A. 549; in each of which such regulation was assumed to be valid, though not directly attacked; and see the comment thereon in Dasch v. Jackson, 170 Md. 251, 266-267, 183 A. 534, which conceded (with reluctance) that the Tag and Criswell cases had upheld such regulation. These cases were followed by Schneider v. Duer, 170 Md. 326, 184 A. 914, in which it was stated (170 Md. at page 331, 184 A. at page 917): 'In view of these cases [Tag, Criswell, and Dasch], it must be held that the occupation of barbering is a trade or calling that may be subjected to police regulation, so far as the health and safety of the public is concerned.' The court then went on to cite numerous cases from other jurisdictions and annotations supporting this conclusion. ¹ In that case (decided in 1936), Ch. 371 of the Acts of 1935 which amended the pre-existing law relating to the examination and licensing of barbers, was held invalid in its entirety; but the effect of the decision was to leave in force the pre-existing law, which then constituted Secs. 269-282 of Art. 43 of the Code of 1924. These sections had originally been enacted by Ch. 226 of the Acts of 1904 and had been involved in the Tag and Criswell cases. See also Schneider v. Pullen, 198 Md. 64, 70, 81 A.2d 226, which reaffirms the rule stated in Schneider v. Duer, supra.

We now return to the appellant's standing to maintain this suit. Under the 'grandfather clause' contained in the amended statute (Code (1957), Art. 43, Sec. 318(a), the appellant was entitled without examination to a renewed certificate of qualification upon payment of the sum of $2 and the annual renewal fee, which, under Sec. 316, is also $2. The Act thus does not prevent the appellant from continuing in business as a barber, and the record does not suggest that the amounts of the fees involved were unreasonable. License fees were provided for under Ch. 226 of the Acts of 1904, the validity of which Act has been sustained in the cases above cited. We do not understand that the appellant challenges the validity of the license fee as such, but only contends that other provisions of the Act are unconstitutional and that the license fee provisions must fall with them.

How then is the appellant affected by those provisions of the Act which he assails as unconstitutional? His testimony indicates that his business has been falling off and that he has not been able to get competent men to staff his shop, which has a total of five chairs. He complains that the Board has not...