Motley v. State Bd. of Barber Examiners

• Decision Date: 10 December 1947
• Docket Number: 454
• Citation: 45 S.E.2d 550,228 N.C. 337
• Parties: MOTLEY et al. v. STATE BOARD OF BARBER EXAMINERS et al.
• Court: North Carolina Supreme Court

45 S.E.2d 550

228 N.C. 337

MOTLEY et al. v. STATE BOARD OF BARBER EXAMINERS et al.

No. 454

Supreme Court of North Carolina

December 10, 1947

Chapter 86 of the General Statutes, entitled 'Barbers,' sets up for its administration a State Board of Barber Examiners, 86-6, defines the practice of barbering, 86-2, provides for the issuance of certificates of registration, 86-1, and establishes the conditions under which they shall be issued, 86-3, 86-5, 86-15, and prohibits and denounces the practice of barbering without a certificate and prescribes punishment therefor, 86-1, 86-22, subsections 1 to 11. Under Sec. 86-12 temporary permits by the Board may be given to persons who have practiced barbering in another state or county for two years and who shall demonstrate their fitness to the Board.

The Board is required to give examinations four times a year including such practical demonstration and oral and written tests as the Board may determine, Sec. 86-10.

Sections 86-4 and 86-5 require that the applicant for admission must have worked as a registered apprentice under a registered barber for at least eighteen months before becoming eligible for a certificate as a registered barber. The designations 'registered barber' and holder of a barber's 'certificate' mean the same.

An amendment to the 'Barbers' Act was made in Chapter 941 of the Session Laws of 1947, G.S. s 86-11.1, making veterans of World War I and World War II who had practiced barbering for three years in the army eligible to demand certificates and become registered barbers, and practice the trade without the examination and apprenticeship otherwise required for admission by paying the fees prescribed in the Act.

The defendant Young, complying with the amended law, tendered his fees and demanded a certificate. The plaintiff Motley brought this action to enjoin the defendant Board of Barber Examiners from issuing the certificate, joining Young as party defendant, and obtained a temporary restraining order.

On motion of counsel for plaintiff, Willie Cox and R. D Ellington were made parties plaintiff.

It appears from the complaints filed separately by the plaintiffs that W. E. Motley is and has long been a registered barber, enjoying the full benefits and protection of the act. He complains that the admission of the defendant Young as a registered barber and into the practice would be an unconstitutional discrimination against him and others licensed in that it would deny him the enjoyment of the fruits of his labor, confer upon the defendant Young a discriminatory privilege denied by the Constitution, deprive him of a property right, and deny him equal protection of the laws, citing the provisions of the State and Federal Constitutions supposed to be involved; and that he and other licensed barbers will suffer irreparable injury, since the effect would be to destroy the security of plaintiffs' trade or profession and will lessen the confidence of the public in the barbering profession as set up under the law. He further pleads that he has a proprietary interest in the Carolina Hotel Barber Shop, which, he contends, gives him an actionable interest in the suit.

The plaintiff Cox adopts the complaint of Motley and adds thereto that he has been practicing as a registered barber under the Act for many years, was compelled to undergo examination to acquire that privilege, and the admission of Young and other veterans under the provisions of the amended law and without examination would be an unlawful discrimination and deny him the equal protection of the law.

The plaintiff Ellington complains that while he had praticed barbering for many years, he has tried three times to procure a certificate from the Board and each time was unable to pass the examination; and that the admission of Young under the conditions of the amended law would be, against him, an unconstitutional discrimination and a denial of the equal protection of the law.

The defendant Board of Examiners, while they indicate they will obey the law if so required, join with the plaintiffs in resisting the demands made under the Act as contrary to the welfare of the public, lowering the standards of sanitation and health, and contend that the statute is discriminatory and unlawful.

The defendant Young sets forth his compliance with the amended law, and maintains its constitutionality.

The matter came on for a hearing before Judge Henry A. Grady at May Term, 1947, of Wake Superior Court, who, after hearing evidence and argument dissolved the restraining order and dismissed the action. The plaintiffs appealed.

Harris & Poe and Logan D. Howell, all of Raleigh, for plaintiffs-appellants.

J Frank Huskins, of Burnsville, and N. F. Ransdell, of Varina, for defendant-appellee Ralph E. Young.

SEAWELL Justice.

The array of parties plaintiff has given rise to some doubt as to their community of interest in the subject matter of the proceeding; and considered individually their standing in court as qualified suitors for equitable relief has been challenged.

The plaintiffs Motley and Cox are registered barbers of long standing and the complaint that they are discriminated against because they were compelled to stand examination while the defendant Young and others in his class are not so required, without further allegation of injury would seem merely reminiscent. In that respect the gist of Cox's grievance, as alleged, is that the admission of the defendant Young and other veterans to practice barbering without examination 'would tend to lower the standards of the barbering trade * * * resulting in irreparable injury to this plaintiff in the practice of his chosen trade. ' The plaintiff Motley complains that the illegal admission of the defendant Young and other veterans similarly privileged 'would destroy the security of plaintiff's trade or profession' as guaranteed by the statute, G.S. Chapter 86; and that he is the owner of the Carolina Hotel Barber Shop in Raleigh and has built up an established business; and that his interest therein gives him an actionable interest in the proceeding. Neither of these plaintiffs alleges a specific injury to a personal or property right such as may be in need of equitable protection; but we may gather from the suggestions made in the argument and the brief that the objection is directed towards an unlawful competition which may affect them by diminishing income from the trade or business, or even amount to its confiscation. Even so, it is difficult to understand how there is an immediate threat to such rights or how the admission of Young to practice in the County of Yancey, where, according to the record there are 18,000 people and only two registered barbers, could affect the number of persons seeking hirsute curtailment in Wake, and reduce their daily take. It is pointed out that if the attempt of the Legislature to open the door to these veterans is null and void, there is adequate protection afforded them already through the prosecution of interlopers. State v. Lockey, 198 N.C. 551, 152 S.E. 693.

However, the status of Ellington, who is experienced at the trade and has tried the Board three times for his certificate and failed, presents a different bid for recognition. While there may remain some doubt as to his relation to the cause of action he seeks to assert, we prefer to consider the matter upon its merits without passing upon that question; and in so doing the constitutional questions posed by his co-plaintiffs and the defendant Board will necessarily have attention.

Counsel for the defendant Young has thrown into the hopper as a serious question how far the Legislature may go in withdrawing from the public the opportunity of employment in what has heretofore been considered an ordinary trade or occupation by erecting it into an autonomous guild, with a Board selected from its members, vested with practical control of admission by the enforcement of conditions and rules so highly restrictive, it is contended, as to promote a monopoly; and points out the power of this board in selecting barbers' colleges, examination of applicants who must demonstrate tonsorial skill, manifest requisite medical knowledge and must serve at least 18 months in apprenticeship to a registered barber before entering the trade. However, since State v. Lockey, supra, that problem is no longer in the hands of the Court. But it is true that the questions of sanitation, public health and standards of the trade or profession urged upon us in defeat of the statute are matters of public policy within the control of the Legislature and not available to the plaintiffs in support of their present proceeding; and the same authority which conferred upon the Barbers Board the power to determine conditions of admission to the trade, or established them, may repeal them, or alter them, or provide alternative conditions of admission unless plainly forbidden by the...