Moler v. Whisman

• Decision Date: 09 May 1912
• Parties: MOLER v. WHISMAN et al.
• Court: Missouri Supreme Court

147 S.W. 985

MOLER v. WHISMAN et al.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

Rehearing Denied June 1, 1912.

1. STATUTES (§ 211)—CONSTRUCTION — INTENTION OF LEGISLATURE—EXPRESSION IN TITLE.

As Rev. St. 1909, §§ 1179-1192, which provides for the registration of barbers, did not express in its title an intention to suppress the operation of public barber shops, it will not be presumed, in determining whether its validity is within the power of the Legislature to pass, that the General Assembly had that intention.

2. EVIDENCE (§ 5)—JUDICIAL NOTICE.

Courts will take judicial notice of those things which are common knowledge to the majority of mankind.

3. EVIDENCE (§ 14)—JUDICIAL NOTICE.

The courts will judicially notice that diseases are spread by diseased persons coming in contact with those who are healthy, and that barbers on account of their close contact with their customers may contract diseases or allow their tools or soaps to become contaminated by the virus or germs of diseases and thereby communicate them to their patrons, but cannot judicially know how much time would be required to teach an average student to satisfactorily perform the work required of a public barber in such a manner as to prevent the spread of disease.

4. HEALTH (§ 21)—VALIDITY OF STATUTES— POWER OF LEGISLATURE.

Rev. St. 1909, §§ 1179-1192, which provides for the registration of barbers and fixes the course in barber colleges at two years, is not unconstitutional as beyond the power of the Legislature, as the matter providing for the public health and determining the time in which a student of barbering would have sufficient knowledge to prevent the spread of contagious diseases are proper subjects of legislative discretion.

5. CONSTITUTIONAL LAW (§ 296)—VALIDITY OF STATUTES.

Rev. St. 1909, §§ 1179-1192, which provides that a student shall work two years before becoming a public barber, is not for that reason unconstitutional as in violation of Const. art. 2, § 4, granting to all persons the enjoyment of the gains of their own industry, or as conflicting with article 2, § 30, and Const. U. S. Amend. 14, § 1, which prohibit taking of property without due process of law.

6. CONSTITUTIONAL LAW (§ 70)—JUDICIAL POWERS—ENCROACHMENT ON LEGISLATURE— WISDOM OF STATUTES.

Courts will not annul an enactment of the Legislature because it is in some respects unwise or inexpedient, so that though Rev. St. 1909, §§ 1179-1192, requiring a two years' course before a student of barbering can become a public barber, places a needless restriction upon those who desire to learn the trade, it cannot for that reason be declared invalid.

7. STATUTES (§ 114)—SUBJECT AND TITLE.

Rev. St. 1909, §§ 1179-1192, which is entitled "An act to establish a board of examiners for barbers and to regulate the occupation of a barber and prevent the spread of contagious diseases," does not violate Const. art. 4, § 28, requiring the subject of a statute to be clearly expressed in its title, though it provides for the regulation of barber colleges and apprentices in barber shops, as there can be no better way to regulate a vocation or trade than by providing rules for its apprenticeship.

8. APPEAL AND ERROR (§ 843)—REVIEW— QUESTIONS NOT NECESSARY TO DECISION.

Where a court finds a statute invalid on one ground, it need not consider an assignment as to its invalidity on another ground.

9. CONSTITUTIONAL LAW (§ 87)—VALIDITY OF STATUTES.

Rev. St. 1909, § 1187, which prohibits students or apprentices in barber colleges from making any charge for their services while learning the barber trade, is invalid as depriving such students of the gains of their industry as prohibited by Const. art. 2, § 4.

10. STATUTES (§ 81)—VALIDITY OF STATUTES —SPECIAL OR LOCAL ACTS.

Rev. St. 1909, § 1187, which prohibits barber colleges from displaying any other sign than "barber school" or "barber college," is invalid as a local or special law within the inhibition of Const. art. 4, § 53, as prohibiting a legitimate business from advertising its business as any other school or college.

11. CONSTITUTIONAL LAW (§ 205)—VALIDITY OF STATUTES—SPECIAL PRIVILEGES.

Rev. St. 1909, § 1187, which prohibits barber colleges and students therein from charging or receiving pay for their services and, by thus discouraging additional persons from learning the barber's trade, creates a monopoly for those who have already become skilled

in the vocation, is invalid under Const. art. 4, § 53, which prohibits the General Assembly from granting any association or individual any special or exclusive right, privilege, or immunity.

12. CONSTITUTIONAL LAW (§ 46)—VALIDITY OF STATUTES—DETERMINATION OF CONSTITUTIONAL QUESTIONS—NECESSITY OF DETERMINATION.

A court will not determine the constitutionality of a statute on a ground urged but which is not within the issues of the case.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Injunction by Arthur B. Moler against C. T. Whisman and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Bill in equity in the circuit court of Jackson county to restrain the revocation of a barber's license. From a judgment for defendants, plaintiff appeals.

The plaintiff is proprietor of a barber college in Kansas City, Mo., and has in his employ as manager and instructor one P. R. Hackney, a registered barber. The defendants compose the State Board of Barber Examiners and are threatening to revoke the license of plaintiff's said instructor, Hackney, for the alleged reason that he has displayed on plaintiff's said barber college the sign, "Free shaving and hair cutting"; that he has collected and permitted the students under his control to collect money for their services in the practice of the trade therein taught; and that he graduates students after a course of study of less than two years; all contrary to the provisions of section 1187, R. S. 1909.

The evidence shows that plaintiff's barber college is equipped with 46 chairs and other paraphernalia necessary for conducting a barber shop and teaching the barber's trade; that his instructor, Hackney, has caused to be displayed on said college the said sign, "Free shaving and hair cutting"; that, when students begin work in said college, they charge nothing for their services, but after a few weeks instruction they are permitted to charge for their services; and that the amount they receive is paid one-half to the plaintiff and one-half to the student performing the service. It is also proven that the plaintiff graduates his students after a course of study of less than two years. The evidence also shows that the barber's trade can only be taught by having the students shave and cut the hair of other persons under the supervision of an instructor; that plaintiff through his students furnishes free shaves to about 1,500 persons per week. No evidence was introduced by either side to prove the length of time required to properly teach the barber's trade, nor was any proof offered to show the danger of spreading infectious or contagious disease by the operation of public barber shops.

Plaintiff does not deny the acts charged against him by defendants, but contends that the judgment ought to be reversed and a decree entered for him because chapter 13, R. S. 1909, entitled "Barbers," is in conflict with the following provisions of the Constitution of Missouri: Section 4 of article 2 of the Constitution of the state of Missouri, as follows: "That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails of its chief design." Section 30 of article 2, as follows: "That no person shall be deprived of life, liberty or property without due process of law." Section 1 of article 4 as follows: "The legislative power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives, to be styled, `The General Assembly of the State of Missouri.'" Section 53 of article 4, as follows: "The General Assembly shall not pass any local or special laws, * * * granting to any corporation, association or individual any special or exclusive rights, privilege or immunity." Section 28 of article 4, as follows: "No bill * * * shall contain more than one subject which shall be clearly expressed in its title." That it is also in conflict with section 1 of the fourteenth amendment of the Constitution of the United States, as follows: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person...