Marx v. Maybury, 643.

• Decision Date: 11 February 1929
• Docket Number: No. 643.,643.
• Citation: 30 F.2d 839
• Parties: MARX v. MAYBURY, State Director of Licenses of Washington, et al.
• Court: U.S. District Court — Western District of Washington

30 F.2d 839 (1929)

MARX v. MAYBURY, State Director of Licenses of Washington, et al.

No. 643.

District Court, W. D. Washington, N. D.

February 11, 1929.

E. D. Phelan, of Seattle, Wash., for plaintiff.

John H. Dunbar, Atty. Gen., L. B. Donley, Asst. Atty. Gen., Ewing D. Colvin, Pros. Atty., and Arthur M. Hare, Deputy Pros. Atty., both of Seattle, Wash., for defendants.

Before RUDKIN and DIETRICH, Circuit Judges, and NORCROSS, District Judge.

NORCROSS, District Judge.

Plaintiff filed a bill of complaint in equity, praying that defendants be restrained from enforcing a certain act of the Legislature of the state of Washington, commonly spoken of as the "Barber Law," being chapter 75, p. 229, of the Laws of 1923, as amended by chapter 211, p. 315, of the Laws of 1927, "An act relating to the practice of the occupation of barber, providing for the examination and licensing of barbers, and apprentices and students and the operation of barber schools or colleges, prescribing penalties," etc.

Plaintiff alleges that he is a skilled barber, and makes his livelihood by following the barber trade, and that he has not other means of making a livelihood; that he is trained as an instructor in barber colleges, and has a barber college in the city of Seattle; that he owns and operates barber shops in said city separate and apart from the barber school. Plaintiff further alleges that section 11 of said act (as amended by Laws Wash. 1927, p. 319, c. 211, § 8), among other things provides "that not more than one student or apprentice shall be employed in any one barber shop"; that plaintiff has students that he desires to employ in the same shop.

Plaintiff further alleges that section 14 (as amended by Laws Wash. 1927, p. 321, c. 211, § 11), among other things, provides that "no barber school or college shall be issued a permit by the director of licenses unless such school or college requires * * * as a prerequisite to graduation a course of instruction of not less than one thousand hours to be completed within six months of not more than eight hours in any working day, such course of instruction to include the following subjects: Scientific fundamentals for barbering, hygiene, bacteriology, histology of the hair, skin, nails, muscles and nerve structure of the head, face, and neck, elementary chemistry relating to sterilization and antiseptics, diseases of the skin, hair, glands, and nails, massaging and manipulating the muscles of the upper body, hair cutting, shaving and arranging, dressing, coloring, bleaching and tinting the hair"; that plaintiff is required to have a permit to operate his barber school, to teach the subjects designated, and that the students so taught cannot practice their trade until they have passed an examination on the subjects designated in the law.

It is further alleged that defendants will enforce the provisions of the statute unless restrained from so doing, and that thereby plaintiff will be deprived of his right to earn a livelihood by following his lawful trade, in violation of the Constitution of the United States, and particularly the Fourteenth Amendment thereof. It is further alleged in the complaint that the provisions of the statute are unreasonable and unnecessary, and that "in truth and in fact the so-called sanitary and health provisions of the law are to be administered by barbers and others totally unskilled and untrained in matters pertaining to public health and sanitation, and that, but for said pretended law, the barber shops in the state of Washington would be properly inspected and supervised by the health department of the state of Washington and the health departments of the various counties and cities in said state, all of which said departments are under the direction and control of skilled physicians and others particularly trained to safeguard and protect the health of the public."

Plaintiff attacks the entire statute, a copy of which is made a part of the complaint, as being in contravention of the Constitution, but we think it unnecessary to consider the act, other than in respect to those particular provisions complained of as affecting his right of earning a livelihood and conducting a lawful business. The matter is presented to the court upon defendants' motion to dismiss.

The provisions in question can only find support in that they are an exercise of the police power of the state in the interest of the public health. That the occupation of barber, by reason of its contact with portions of the human body, may afford an appropriate subject for reasonable health or sanitary regulations, for the purposes of this case, may be conceded. It would be more appealing to a court, called upon to protect the asserted constitutional rights of the individual against an alleged unlawful invasion thereof, if such regulations, asserted to be made in the interest of the public health, were to be administered by the usually recognized qualified health authorities, rather than by persons engaged in a trade or occupation not presumed to have any special qualifications in that respect, further than acquired in the ordinary learning or plying such trade or occupation, or, as appears from this statute, to be left in the hands of the director of licenses.

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