State Bd. of Barber Examiners v. Cloud, 27708.

Citation44 N.E.2d 972, 220 Ind. 552
Case DateNovember 30, 1942
CourtSupreme Court of Indiana

220 Ind. 552
44 N.E.2d 972

CLOUD et al.

No. 27708.

Supreme Court of Indiana.

Nov. 30, 1942.

Action for injunction by Arthur J. Cloud and others against the State Board of Barber Examiners. From an adverse judgment, defendant appeals.


[44 N.E.2d 974]

Appeal from Huntington Circuit Court; Otto H. Krieg, Judge.
George N. Beamer, Atty. Gen., James K. Northam, First Asst. Atty. Gen., and Obed T. Kilgore and C. Ballard Harrison, Deputy Attys. Gen., for appellant.

Claude Cline, of Huntington, for appellee.

Henry M. Dowling, of Indianapolis, amicus curiae.

RICHMAN, Chief Justice.

Appellees sued for a permanent injunction against the enforcement of appellant's administrative order fixing for Huntington County the minimum prices barbers therein might charge for their services and the hours when their shops might be open for business. Demurrer to the complaint was overruled and, refusing to plead over, appellant suffered judgment granting the injunction. The question in this appeal therefrom is whether such administrative orders are within the police power of the state.

Until 1933 barbers and their shops were under no regulation other than the general laws respecting public health, morals and safety. A Sunday closing law applicable only to barber shops was enacted in 1907 but held unconstitutional as class legislation in Armstrong v. State, 1908, 170 Ind. 188, 84 N.E. 3, 15 L.R.A.,N.S., 646. The State Board of Barber Examiners, whose administrative office is in Indianapolis, was established by Chapter 48 of the Acts of 1933. All barbers are now required to be licensed by this Board. Besides proscribing under penalty certain unsanitary practices the statute authorized the Board to make ‘other rules and regulations and prescribe other sanitary requirements.’ Twelve such rules are now in effect. Horack, Indiana Administrative Code, Rules 63-323-1 et seq. Neither this statute nor any of the rules adopted by the Board has been the subject of litigation reaching this court.

Chapter 108 of the Acts of 1939 provided that minimum prices and opening and closing hours in barber shops might be fixed by the Board in ‘trade areas' if desired by eighty percent of the barbers in the respective areas, the limits of which the resident barbers were to determine. In Hollingsworth v. State Board of Barber Examiners, 1940, 217 Ind. 373, 28 N.E.2d 64, 68, the principal sections of the law were declared ‘void as constituting an unconstitutional delegation of legislative authority.’

The next General Assembly passed the act now before us. Ch. 77 Acts 1941, §§ 63-342 to 63-352, Burns' 1933 (Supp.), §§ 4082-15 to 4082-24, Baldwin's Supp.1941. The first section states that the statute is ‘in the interest of the public health, public safety and general welfare,’ that ‘barbering and the operation of barber shops is hereby declared to be affected with a public interest; that in order to attain the purposes of this act in promoting and conserving fair competitions and salutary and sanitary practices among barbers, reasonable minimum charges should prevail for services customarily performed by barbers in barber

[44 N.E.2d 975]

shops and reasonable opening and closing hours for barber shops should be established * * *.’

The third section permits the Board, upon its own motion only, to investigate and make orders as to minimum prices and hours in areas to be fixed by the Board in it discretion. The fourth prescribes the procedure with reference to such investigations and further states: ‘In making any investigation as to conditions existing in the barber profession, the board shall give due consideration to the costs incurred in the particular county under investigation with regard to adequacy of income of barber shop operators to assure full compliance with all sanitary regulations imposed by any law of this state and the board shall give due consideration to healthful and reasonable working conditions and hours of service in barber shops.’ The provision for notice and hearing applies only to the preliminary investigation. Any order formulated need not be made known until it is issued when it becomes effective after notice, the time of which is not fixed by the statute, without provision for administrative or judicial review. The sixth section provides that all orders so made shall remain in force until changed by the Board after investigation as in the case of the original orders. The eighth permits the Board to revoke a barber's license for any violation of such an order. Other sections are immaterial to this inquiry.

The complaint shows that in the main business district of the city of Huntington are six barber shops which had been operaing under a voluntary schedule of prices and hours which the nine appellees, each of whom owned and operated a shop in the outlying districts of the city, could not meet without serious loss of business and income; that an investigation was begun by the Board by notices of a hearing, which were printed in Huntington, prepared for mailing and mailed by one of the owners of the said six shops; that on the eve of the hearing the Board was in secret session with the operators of four of the shops and at the hearing these operators expressed themselves as satisfied with said schedule; that no evidence was heard as to the expenses or income of these operators but ‘* * * evidence was produced by the plaintiffs herein showing that because of the location of the Plaintiffs' shops herein and because of lower rentals and operating costs they were able to operate each of their shops at prices less than those as promulgated by the said defendant Barber Board; and that said prices and hours under which plaintiffs were operating their shops were sufficient to assure full compliances with all sanitation regulations required by law and giving consideration to healthful and reasonable working conditions and hours of service in their respective shops;’ that the Board adopted said schedule and by order made it effective throughout Huntington County. Other facts alleged need not be detailed.

The complaint not only challenges the order as arbitrary, discriminatory and destructive of appellee's business but asserts that the statute, pursuant to which the Board was acting, contravenes among others §§ 1 and 23 of Article 1 of the Constitution of the State of Indiana.

Appellant justifies the order as lawfully made pursuant to a proper exercise of the police power. The statute is defended as being ‘in the interest of the public health * * * and general welfare.’ There is no contention for the legislative declaration that it is for the ‘public safety.’

Statutes and ordinances applying the police power to barbers and barber shops have been the subject of much litigation. Most of the earlier cases deal with regulation of hours of opening and closing. About 1936 price legislation appeared, and some of the later cases involve both kinds of legislation. The substantial questions before us have been considered in one or more of the following cases:

Regulation of Hours

Ordinances upheld: Falco v. Atlantic City, 1923, 99 N.J.L. 19, 122 A. 610;Feldman v. City of Cincinnati, D.C.1937, 20 F.Supp. 531;Pearce et al. v. Moffatt, 1939, 60 Idaho 370, 92 P.2d 146.

Ordinances held unconstitutional: City of Atlanta v. Chaires, 1927, 164 Ga. 755, 139 S.E. 559, 55 A.L.R. 230;State ex rel. Newman v. City of Laramie, 1929, 40 Wyo. 74, 275 P. 106;City of Alexandria v. Hall, 1930, 171 La. 595, 131 So. 722;Knight, Chief of Police v. Johns, 1931, 161 Miss. 519, 137 So. 509;Ernesti v. City of Grand Island, 1933, 125 Neb. 688, 251 N.W. 899;McDermott v. City of Seattle et al., D.C.1933, 4 F.Supp. 855;Patton v. City of Bellingham, 1934, 179 Wash. 566, 38 P.2d 364, 98 A.L.R. 1076;Ganley v. Claeys, 1935, 2 Cal.2d 266, 40 P.2d 817;

[44 N.E.2d 976]

City & County of Denver v. Schmid, 1935, 98 Colo. 32, 52 P.2d 388;State v. Johannes, 1935, 194 Minn. 10, 259 N.W. 537;Eanes et al. v. City of Detroit, 1937, 279 Mich. 531, 272 N.W. 896;State v. Paille, 1939, 90 N.H. 347, 9 A.2d 663;City of Louisville v. Kuhn, 1940, 284 Ky. 684, 145 S.W.2d 851.

Statutes held unconstitutional: Ex parte Jentzsch, 1896, 112 Cal. 468, 44 P. 803,32 L.R.A. 664; Ex parte Boehme, 1936, 12 Cal.App.2d 424, 55 P.2d 559;In re Opinion of the Justices, 1938, 300 Mass. 615, 14 N.E.2d 953;Amitrano v. Barbaro, 1938, 61, R.I. 424, 1 A.2d 109;State v. Danberg, 1939, 1 Terry, Del., 136, 6 A.2d 596

Regulation of Prices

Statutes upheld: Board of Barber Examiners of Louisiana v. Parker, 1938, 190 La. 214, 182 So. 485;Herrin v. Arnold, 1938, 183 Okl. 392, 82 P.2d 977, 119 A.L.R. 1471;State v. McMasters, 1939, 204 Minn. 438, 283 N.W. 767;Arnold v. Board of Barber Examiners, 1941, 45 N.M. 57, 109 P.2d 779;McRae v. Robbins, 1942, Fla., 9 So.2d 284.

Ordinances held unconstitutional: City of Mobile v. Rouse, 1937, 233 Ala. 622, 173 So. 267, 111 A.L.R. 349; Ex parte Kazas, 1937, 22 Cal.App.2d 161, 70 P.2d 962.

Statutes held unconstitutional: Duncan v. City of Des Moines, 1936, 222 Iowa 218, 268 N.W. 547;State ex rel. Fulton v. Ives, 1936, 123 Fla. 401, 167 So. 394;State v. Greeson, 1939, 174 Tenn. 178, 124 S.W.2d 253;Hollingsworth v. State Board of Barber Examiners, 1940, 217 Ind. 373, 28 N.E.2d 64;Noble v. Davis, 1942, Ark., 161 S.W.2d 189.

These cases comprise most of the law on the subject. Notes that have been helpful are found in 20 A.L.R. 1112, 98 A.L.R. 1088, 111 A.L.R. 353, 119 A.L.R. 1481, 17 Ind.L.J. 192.

There is no contention on the part of appellees that barbers and their places of business are not subjcet to the police power in the interest of public health. But the right to regulate for some purposes and in some ways does not include the right to regulate for all purposes in all ways. Appellees are licensed pursuant to the Act of 1933, which was clearly a sanitary measure. That they acquiesced in such an exercise of the police power, accepting licenses under that Act, is...

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