Schneider v. Duer

• Decision Date: 18 May 1936
• Docket Number: 52.
• Parties: SCHNEIDER v. DUER ET AL.
• Court: Maryland Court of Appeals

184 A. 914

170 Md. 326

SCHNEIDER v. DUER ET AL.

No. 52.

Court of Appeals of Maryland

May 18, 1936

Appeal from Circuit Court of Baltimore City; Eugene O'Dunne Judge.

Suit by Richard F. Schneider against Arthur W. Duer, Robert W. Smith and Vincent A. Cinquegrani, as members of the State Board of Barber Examiners, and another. From a decree of dismissal complainant appeals.

Reversed and remanded, with directions.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

Abram C. Joseph, of Baltimore (Louis Peregoff, Jacob Blum, and Daniel C. Joseph, all of Baltimore, on the brief), for appellant.

Charles T. LeViness, III, Asst. Atty. Gen. (Herbert R. O'Conor, Atty. Gen., on the brief), for appellees.

SHEHAN Judge.

Richard F. Schneider, the appellant, filed a suit in equity in the circuit court for Baltimore city in which the constitutionality of chapter 371 of the Acts of the General Assembly of Maryland of 1935, to regulate the trade of barbering, is brought into question. A demurrer to the amended bill of complaint in this case was sustained, and from an order dismissing the bill this appeal is taken.

J. Bernard Wells, the state's attorney for Baltimore city, and Arthur W. Duer, Robert W. Smith, and Vincent A. Cinquegrani, are defendants and appellees. The state's attorney is made a party defendant because he is empowered and directed to prosecute, in the city of Baltimore, upon the part of the state of Maryland, all cases in which the state may be interested. The other three defendants constitute the "Board of Barber Examiners of the State of Maryland"; appointed in pursuance of power and authority contained in the above act of Assembly. These appointments are claimed to have been illegal because of the alleged unconstitutionality of said act creating that board. The bill of complaint charges that the Act of 1935, c. 371, and each and every part thereof, is invalid, illegal, and unconstitutional and in contravention of the Bill of Rights, the Constitution of the state of Maryland and of the United States, and prays that it may be so decreed, and that the defendants be enjoined from enforcing it.

The question here presented is: In the exercise of the police power, has the public such a general interest in the occupation of barbering that the Legislature may, through reasonable police regulations, exercise supervision of this occupation in order that the health and safety of the public may be preserved and not endangered; and, assuming that such regulatory authority and power does exist, then has it been so exercised that the provisions of the act can be upheld as valid and not an invasion of the constitutional rights and guaranties of those whom it is intended to affect? The legislative policy of this state has heretofore been expressed by the Act of 1904, c. 226, and on two occasions that act has been before this court in the cases of State v. Tag, 100 Md. 588, 60 A. 465, 467, and Criswell v. State, 126 Md. 103, 94 A. 549. In neither of these cases was the constitutionality of the act of 1904 attacked, this court expressly saying in the Tag Case that the constitutionality of the act was conceded (not decided). In both cases the question of classification of certain persons, and, consequently, their right to engage in the trade of barbering, were the only questions submitted for decision. So this court for the first time is called on to pass upon the constitutionality of the questions here involved.

This act (1904) was incorporated in the Code and became a part of the health article (article 43, § 269 et seq.), and as such is repealed and re-enacted with amendments by the Act of 1935, c. 371. The principal difference in these two acts grows out of an effort by the Legislature to bring into supervision, under more exacting regulations and tests, the barber school and its students and apprentices in barber shops; to enlarge the powers of the "State Board of Barber Examiners of the State of Maryland"; to establish divisions, grades, and tests of those who desire to engage in this trade, beyond or in addition to those already prescribed.

Sections 269 to 272, inclusive, of the act, provides for the appointment and qualifications of the three members of the board with salaries per annum of $1,500 each, and, generally, to provide the legal machinery for the operations of the board; then follows numerous sections providing educational, physical, and manual qualifications for barbers, students, and apprentices; those who are engaged in the trade and those who wish to be are divided into classes, and from the members of each class there is exacted license fees and charges. The act imposes numerous rules, regulations, and requirements on these schools and shops, and upon those engaged therein are imposed fines, forfeitures, and removal from the activities of the trade for stated crimes, and lastly legal procedure, including the right of appeal, is provided.

The act is not so framed or arranged with respect to its numerous sections, as to be referred to in sequence, in relation to the subjects and objects involved.

This in general is an outline of the act whose constitutionality is being attacked, and which is the sole question in this appeal.

The precise question presented for consideration in the above cases was whether certain provisions of the act could be sustained, which provided for divisions of barbers into classes, some of whom are subjected to the terms of the act and others exempted. The act of 1904 provided that those engaged in this occupation at the time of its passage should be wholly exempt. Thus arose the question in controversy.

The validity of the entire act as a police regulation affecting the health and security of people was not directly involved. This court sustained the contention that this division did not invalidate that act. Such ruling, however, in some respects carries with it an implied recognition of the constitutionality of the act; otherwise the entire act would have been held invalid, and the provisions under attack, equally with all other provisions, would have been held illegal, but it must be observed that in these two cases there are no clearly defined limits of the legislative authority in dealing with this trade. But in the case of State v. Tag, supra, the court went further than an implied recognition of the constitutionality of the act of 1904. It was there said: "When a statute is inexplicable, contradictory, or altogether absurd it may be declared void, apart from any constitutional objections. Campbell's Case, 2 Bland, 209, 20 Am.Dec. 360. But this Act of 1904 does not appear to us to be subject to any of these objections. It is conceded [not decided] to be constitutional."

In the Criswell Case the question presented was substantially that in the Tag Case, with the same result. A better definition of the authority and of the limitations of the Legislature, as it relates to the trade of barbering, is given, by this court, in the recent case of Dasch et al. v. Jackson, 183 A. 534, 540, and not yet reported [in State report] known as the Paper Hangers' Case. Therein it is stated that: "Perhaps the farthest point reached by the tide of regulation of labor and industry is marked by the Barber's Act, which was before this court in State v. Tag, 100 Md. 588, 60 A. 465, 466, and Criswell v. State, 126 Md. 103, 94 A. 549, and upheld. While that occupation may have some conceivable relation to the public health, State v. Armeno, 29 R.I. 431, 72 A. 216, there is much force in the statement found in Timmons v. Morris (D.C.) 271 F. 721, 724, that 'The court is convinced that, insofar as the practice of barbering is concerned, the public welfare and comfort--outside of, and beyond what is included in its health and safety--are so insignificant as not to lend color to any right claimed under the police power of the state.' "

In view of these cases, 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 barber trade is one of those occupations that, in the interest of public health and safety, has been recognized in many states as a proper subject or field of police regulation. Marx v. Maybury, 284 U.S. 691, 52 S.Ct. 5, 76 L.Ed. 583; State Board of Barber Examiners v. Blocker, 176 Ga. 125, 167 S.E. 298; Banghart v. Walsh, 339 Ill. 132, 171 N.E. 154; Clark v. State, 169 Miss. 369, 152 So. 820; State v. Lockey, 198 N.C. 551, 152 S.E. 693; State v. Conragan, 54 R.I. 256, 171 A. 326; Mundell v. Graph, 62 S.D. 631, 256 N.W. 121; State v. Nolan, 161 Tenn. 293, 30 S.W.(2d) 601; Gerard v. Smith (Tex.Civ.App.) 52 S.W.(2d) 347; Ransone v. Craft, 161 Va. 332, 170 S.E. 610; State v. Briggs, 45 Or. 366, 77 P. 750, 78 P. 361, 2 Ann. Cas. 424; State v. Wester, 135 Wash. 32, 236 P. 790; State v. Zeno, 79 Minn. 80, 81 N.W. 748, 48 L.R.A. 88, 79 Am.St.Rep. 422; Patton v. Bellingham, 179 Wash. 566, 38 P.2d 364, 98 A.L.R. 1076, 1077, and annotations, p. 1088 to 1096; Ex parte Lucas, 160 Mo. 218, 61 S.W. 218; Cooper v. Rollins, 152 Ga. 588, 110 S.E. 726, 20 A. L.R. 1111, and annotations; 17 R.C.L. 555.

The appellant had long been engaged in the occupation of barbering, and conducted a barber school at the time he instituted this suit. The record and acts of Assembly do not clearly show the nature and functions of these schools, but it may be presumed that they are institutions for the instruction of students who desire to become proficient in their chosen trade, and, like many other persons having selected a calling of a useful and harmless character, such as carpentering, bricklaying, and painting, requiring some technical knowledge of...