Pearce v. Moffatt, 6664

• Court: United States State Supreme Court of Idaho
• Citation: 60 Idaho 370,92 P.2d 146
• Docket Number: 6664
• Parties: C. W. PEARCE, H. A. BERGH and RALPH CALL, Respondents, v. WILLIS C. MOFFATT, as Prosecuting Attorney in and for the County of Ada, State of Idaho, Appellant
• Decision Date: 17 June 1939

92 P.2d 146

60 Idaho 370

C. W. PEARCE, H. A. BERGH and RALPH CALL, Respondents, v. WILLIS C. MOFFATT, as Prosecuting Attorney in and for the County of Ada, State of Idaho, Appellant

No. 6664

Supreme Court of Idaho

June 17, 1939

BARBER SHOPS-REGULATION OF HOURS-STATUTES-CITY ORDINANCE-CONSTITUTIONAL LAW.

1. An ordinance of Boise city fixing 8 o'clock as the opening hour and 6 o'clock on week days and 8 o'clock on Saturays as the closing hour for barber shops and designating the days on which barber shops shall remain closed is constitutional.

2. The statute fixing 7 o'clock on working days and 10 o'clock on Saturdays and days preceding legal holidays as the closing hour for barber shops in cities of the first or second class is unconstitutional. (I. C. A., sec. 53-704.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Suit for injunction against the prosecuting attorney of Ada County, to restrain and enjoin him from prosecuting actions against plaintiffs for violation of a state statute and a city ordinance. Judgment for plaintiffs. Affirmed as to legislative act and reversed as to city ordinance.

Judgment affirmed so far as it enjoins prosecutions under sec. 53-704, I. C. A., and reversed in so far as it enjoins prosecutions under Ordinance No. 1704 of the City of Boise. No costs awarded.

Willis C. Moffatt and Kenneth W. O'Leary, for Appellant.

The ordinance and statute are presumed to be constitutional and must be shown to be unconstitutional beyond rational doubt. (West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A. L. R. 1330; Nebbia v. New York, 291 U.S. 502, 503, 54 S.Ct. 505, 78 L.Ed. 940, 89 A. L. R. 1469; Chambers v. McCollum, 47 Idaho 74 272 P. 707; Mullen & Co. v. Moseley, 13 Idaho 457 90 P. 986, 121 Am. St. 277, 13 Ann. Cas. 450, 12 L. R. A., N. S., 394; State v. Cranston et al., 59 Idaho 561, 85 P.2d 682.)

The ordinance and statute are within the police power of the state and not in violation of the Constitution of either the state of Idaho or the United States. (Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; West Coast Hotel Co. v. Parrish, supra; Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083, Ann. Cas. 1916E, 282; State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259; In re Hinkle, 33 Idaho 605, 196 P. 1035; State v. Cranston et al., supra; Falco v. Atlantic City, 99 N.J.L. 19, 122 A. 610.)

J. M. Lampert, for Respondents.

When the police power is exerted for the purpose of regulating a business or occupation, which in itself is recognized as innocent and useful to the community, the legislature is not the exclusive judge as to what is a reasonable and just restraint upon the constitutional right of the citizens who pursue such business or profession. It is always a judicial question whether any particular regulation of such right is a valid exercise of legislative power. (Jew Ho v. Williamson, 103 F. 10; Ex parte McCapes, 157 Cal. 26, 106 P. 229.)

The Idaho Statute involved limits the law to barber shops in cities of the first and second class. Where the legislature attempts to single out a certain class of its citizens and makes a regulation applicable to them alone it must be based upon some substantial difference between their situation and the situation of other individuals. (6 R. C. L., sec. 374, p. 381; 6 R. C. L., sec. 375, p. 383; State v. LeBarron, 24 Wyo. 519, 162 P. 265, Ann. Cas. 1918D, 998.)

This is not a law under the exercise of police power to regulate the hours of labor. Under it a barber might work ten hours a day. It is not a statute or an ordinance which promotes the health, the peace, the morals, or the general welfare of the people of the community. In order to be valid it must meet one of these tests and it must be a reasonable exercise of the police power. (State v. Laramie, 40 Wyo. 74, 275 P. 106; Ganley v. Claeys et al., 2 Cal. (2d) 266, 40 P.2d 817; Denver v. Schmid, 98 Colo. 32, 52 P.2d 388; Patton v. Bellingham, 179 Wash. 566, 38 P.2d 364, 98 A. L. R. 1076.)

AILSHIE, C. J. Holden, J., concurring. GIVENS, J., Concurring in Part and Dissenting in Part. BUDGE, J., MORGAN, J., Dissenting.

OPINION

AILSHIE, C. J.

--Injunction was sought by respondents to restrain and enjoin appellant from prosecuting them for violating sec. 53-704, I. C. A., which provides:

" It shall be unlawful for any person or persons in the state to keep open for business or to work at the barber's trade in any city of the first or second class after the hour of seven o'clock P. M. on any working day: provided, however, that on Saturday and the day preceding each legal holiday said barber shops may be kept open for business until ten o'clock P. M."

By the same action it was sought to enjoin any prosecution under sec. 9 of Ordinance No. 1704 of Boise City, which provides as follows:

"Sec. 9. It shall be unlawful for any person or persons, firm, or corporation, to operate, maintain, or conduct any barber shop or place wherein barbering is done, in Boise City, Idaho, to be open for the purpose of business of barbering for revenue, pay, free or otherwise, before eight o'clock A. M. and after six o'clock P. M. on the following days, to-wit: Monday, Tuesday, Wednesday, Thursday, and Friday of each week; on Saturday of each week, said shops or places shall not be open before eight o'clock A. M. or after seven o'clock P. M.

"All barber shops shall remain closed on Sunday and the following holidays, to-wit: New Year's Day, Decoration Day, Fourth of July, Labor Day, Armistice Day, Thanksgiving Day, and Christmas, and when said holidays or any of them fall on Sundays, then the following Monday shall be observed."

The trial court entered judgment for the plaintiffs and issued a perpetual injunction against the prosecution of respondents under either the foregoing statute or the ordinance. This appeal is from the judgment; and the sole question here is whether the statute and ordinance are, or either of them is, unconstitutional.

Upon the oral argument it was stipulated that Kenneth O'Leary should be bound by any decision rendered herein, because of his election as the successor of appellant Moffatt, to the office of prosecuting attorney of Ada county.

There is no longer any difference of opinion among courts as to the power of the legislature over the subjects, business and practices involving the public health, safety, morals and welfare. The statute here involved (sec. 53-704, which is a part of chapter 7 of Title 53), is clearly intended as a legislative exercise of the police power of the state. Section 1 of this chapter declares the legislation therein proposed by the act is, "In the interest of the public health and to prevent the spread of contagious and infectious diseases." Chapter 6 of the same title provides for the registration, examination and licensing of barbers, defines who are barbers, and requires a license for the practice of "barbering" (sec. 53-602). In order to obtain a license for barbering, the applicant must show that he is a graduate of an eighth grade grammar school or its equivalent; and he must have passed a satisfactory examination in a barber school or college or before the department of law enforcement showing a satisfactory knowledge of the "Scientific fundamentals for barbering; hygiene; bacteriology; histology of the hair, skin, nails, muscles and nerves; 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 of the hair." (See, also, sec. 53-606.)

The legislature designates the trade or occupation as the "art or science of barbering" (sec. 53-607). Now, in the light of this act and its requirements, it is at once apparent that the right to practice the "art or science of barbering" is a privilege granted by the legislature to those who bring themselves within the terms of the act; and that the people who patronize them have a right to expect and feel assured that the barber holding himself out as such has complied with the requirements of the law and will observe all its sanitary, health and police provisions.

Now after the barber has complied with all those provisions and opened a place for the practice of his "art or science," why may not the legislature, in the further pursuance of its desire and discretion to protect the health and general welfare of the people who may patronize this scientific artist, say to him:

"You are going to have all kinds, classes and ages of people in your shop. Some may be carrying highly contagious diseases. Some may be infected with dangerous bacteria; you will be employed to practice your art on persons in ill health; and at the same time you will not know of this danger to both you and your patrons except as you may discover it from ocular observation. Such persons will not only endanger your health but the health and safety of your other patrons; and in the long run, affect the health, happiness, and welfare of their families.

"We are therefore going to require you to close your shop at a certain hour every successive 24 hours and you and any employees you may have working in your shop may at the same time have rest and recreation, and your shop may be inspected and be given any necessary sanitary treatment. And we are going to make the same requirement of all persons practicing your art."

I cannot see any sound reason why the legislature, speaking for the people of the state, may not say as much and write it into a statute. That becomes a...