Snedeker v. Vernmar, Limited

• Decision Date: 20 February 1963
• Docket Number: No. 31412,31412
• Citation: 151 So.2d 439
• Parties: Agnes P. SNEDEKER et al., as and constituting the Florida Board of Massage, Appellants, v. VERNMAR, LTD., a limited partnership under the laws of the State of Florida, et al., Appellees.
• Court: Florida Supreme Court

Page 439

151 So.2d 439

Agnes P. SNEDEKER et al., as and constituting the Florida Board of Massage, Appellants, v. VERNMAR, LTD., a limited partnership under the laws of the State of Florida, et al., Appellees.

No. 31412.

Supreme Court of Florida.

Feb. 20, 1963.

Rehearing Denied April 16, 1963.

Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellants.

Simmonite, Budd & Walsh and Garland M. Budd, Miami, for appellees.

DREW, Justice.

The complaint initiating this litigation was filed in July, 1958, by appellees, operators of Stauffer System reducing establishments, seeking a declaratory decree and injunction to prevent enforcement of the law regulating masseurs in this state, Chapter 480, F.S.1957, F.S.A., ¹ against them by the appellant Florida Board of Massage.

Among the express statutory definitions of persons covered by the law in question, Section 480.01(1), are those who administer 'treatments with any mechanical or electrical apparatus for the purpose of body slenderizing, body reducing or body contouring,' or who administer 'body massage either by hand or by any mechanical or electrical apparatus or device * * * applying such movements as stroking, friction, rolling, vibration, kneading, cupping, pettrasage, rubbing, effleurage, tapotement.' Related provisions require registration of all such persons and establish prerequisites including a diploma or credentials from an accredited massage school or proof of like experience or education, together with examination in specified subjects. Section 480.09 required for such schools in 1957 not less than 600 hours of instruction in physiology, anatomy, massage, hydrotherapy and other techniques of the trade, since increased to 950 hours minimum.

The complaint described at length the system by which plaintiffs operated, by franchise, certain electrically powered mechanical tables allegedly providing 'passive exercise' for muscle relaxation, stimulation of circulation, and reduction of fatty tissue. The plaintiffs set forth their inability to comply with the educational requirements of Chapter 480, asserted that its provisions had no reasonable relation to their occupation, and claimed that its enforcement would deprive them of property and liberty without due process of law and would deny to them the equal protection of the laws, contrary to state and federal constitutional provisions.

This appeal under Article V, Section 4(2), Florida Constitution, directly to this Court from the decree enjoining the enforcement of the controverted portions of the statute against the plaintiffs, presents initially the jurisdictional issue of whether the decree is a 'decision directly passing upon the validity of a statute' so as to authorize original review the under the cited section. The equitable relief granted by the decree must, of course, be predicated on a decision either that the statute did not in terms apply to plaintiffs, or that insofar as it did so apply it was unconstitutional and invalid. In the face of the plain words of the law ² which involve no ambiguity susceptible of construction, and the recognition of same by the parties implicit in their exclusive reliance on constitutional infirmities, the decision cannot be regarded as one construing the statute to be inapplicable. Nor does the record indicate, as it has in previous cases, alternative theories upon which the decision might rest so as to warrant remand for clarification. ³ The decree in a situation such as that at bar is, therefore, necessarily one directly passing upon the validity of a statute for the purposes of direct appeal to this Court under Article V, without regard to any debate over alleged ambiguities or confusion in its language, and, in fact, without reference to any specific expression by the court as to the intended effect of its decree for plaintiffs.

The real confusion in this jurisdictional area has been arisen from the attempt to distinguish the legal effect of a decision holding a statute unconstitutional as applied to specific facts from that of a decision 'that the law itself was constitutional or unconstitutional irrespective of its application to pertinent facts.' Stein v. Darby, Fla.1961, 134 So.2d 232, 236. ⁴ To whatever extent the opinion in the cited case excludes decisions in the first category (i. e. those finding a statute invalid as applied to specific facts) from the appellate jurisdiction of this Court under Article V, Section 4, supra, we must recede from such construction of the provision for appeal here from any 'decision directly passing upon' the pertinent issues of statutory validity or constitutionality. Our conclusion is dictated by a consideration of historical limitations on judicial power to nullify legislative acts for constitutional transgression, under which a decision upon statutory validity cannot normally by rendered in the abstract or upon any consideration other than its application in a certain case. The traditional statement, is that courts can pass on the constitutionality of a statue 'only as it applies and is sought to be enforced in the determination of a particular case before the court, for the power to revoke or repeal a statute is not judicial in its character.' ⁵ A decision that a statute in particular circumstances collides with constitutional inhibitions may, as in this case, deprive it of only part instead of all of its effect, depending on issues of separability and intent, and the collision or violation may be plain from the terms of the law in controversy or from such terms only as they operate or apply in the particular case. ⁶ The adjudication, however of validity or invalidity in every such case is a decision passing upon the validity of the statute as applied to the facts at bar, ⁷ unless, of course, the court ultimately concludes that the terms of the law can be construed as inapplicable to such facts, in which event the constitutional issue is not decided. The decision here, as already noted, enjoins enforcement of a statute which patently includes the plaintiffs within its terms and is therefore not susceptible of construction on this point.

The Constitution vests in litigants the right to take 'appeals * * * directly to the supreme court, as a matter of right * * * from final judgments or decrees directly passing upon the validity of a state statute.' Art. V, Sec. 4. The test of the effect of the trial court's decree or disposition of the cause, ⁸ and its effect with respect to the pertinent issue of statutory validity or constitutionality must be determined by reference to record issues, and decided by this Court upon that record in conjunction with but not subject to opinions of the trial forum upon the point. The jurisdictional issue we have accordingly disposed of in favor of the appeal in this case.

Upon voluminous and conflicting testimony of medical and lay witnesses the court below concluded ultimately that there was not in this case any reasonable relationship between the statutory requirements and the public safety or welfare because the course of technical training detailed in Section 480.09 would not make the appellees more competent in their particular occupation or enable them to perform those limited functions with any significantly greater protection of the public interests in behalf of which police power may be exercised. We concur in this conclusion.

While the evidence is to the effect the operators of the apparatus in question are not confined strictly to mechanical activation of the tables, and that use by patrons with pre-existing abnormalities might involve risk of injury, there is nevertheless substantial uniformity of opinion in the record that the required courses would not in any event evable an operator to diagnose such conditions or eliminate that risk. Many of the statutory prescriptions are obviously unrelated to competent performance of the limited activities involved in appellees' operations, and the evidence amply sustains the court's findings in this respect. Occupational regulations of some nature might conceivably be lawfully imposed, but the problem presented in judicial review of legislation under constitutional attack is limited to determination of the propriety of the requirements as framed rather than definition of the permissible limts of regulation in the premises.

Upon the pivotal point we are of the view that the subject legislation sought to be enforced lacks in these circumstances the essential relationship ⁹ to the public interests which may be protected by exercise of police power and that, therefore, as to the activities of the appellees, the trial court was correct in holdong the act unconstitutional. The decision in sum is that the definition of applicability contained in Sec. 480.01(1)(a) is stated in terms not susceptible of lawful limitation and it therefore void and unenforceable. To whatever extent Sec. 480.01(1)(b) purports to make the chapter applicable to activity such as that here involved then its operable effect must also be limited, leaving otherwise effective a statute which with those provisions would be invalid.

Affirmed.

ROBERTS, C. J., and TERRELL, J., concur.

HOBSON, J. (Ret.), concurs specially.

THOMAS, THORNAL and O'CONNELL, JJ., dissent.

HOBSON, Justice (concurring specially).

Although I concur in the opinion prepared by Mr. Justice DREW, as well as the judgment rendered, I am impelled to make one or two observations.

The comments, statements or remarks made relevant to the question before us in the instant suit by the author of the opinion in Stein v. Darby, Fla., 134 So.2d 232, which in his dissent herein are treated as though they were pronouncements of law which should be adhered to under the rule of 'stare decisis' were not necessary to a decision in Stein. They are therefore properly classified as 'obiter dicta.' All of the authorities with which I am familiar recognize the fact that gratuitous...