State Ex Rel. Fulton v. Ives

Decision Date16 March 1936
Citation123 Fla. 401,167 So. 394
PartiesSTATE ex rel. FULTON v. IVES et al.
CourtFlorida Supreme Court

Rehearing Denied April 27, 1936.

En Banc.

Original mandamus proceeding by the State of Florida, on the relation of Andrew Fulton, against George A. Ives and others, as members of and constituting the State Board of Barber Examiners.

Peremptory writ granted.

BUFORD and TERRELL, JJ., dissenting.


Daniel & Thompson, of Jacksonville, for relator.

Waller & Pepper, B. K. Roberts and H. H. Wells, all of Tallahassee for respondents.

Philip D. Beall, of Pensacola, amicus curiae.


ELLIS Presiding Justice.

Andrew Fulton is a citizen of Florida and resides in the county of Duval. He is a barber by trade and has been engaged in that occupation for the last past eighteen years.

Since the year 1931, during which chapter 14650 Laws of Florida, was enacted, he has obtained a certificate of registration as a registered barber issued by the board of barber examiners, which was created by the act mentioned above.

Fulton's last certificate, which was issued in 1934, expired in August of 1935 In July of the last-mentioned year he applied to the board of barber examiners for a renewal or the issuing of another certificate of registration. The fee tendered by him as required by the law was accepted by the board and in all other respects he complied with the requirements of the statute mentioned above. The board of barber examiners however, refused to issue a certificate of registration to Fulton for the year ending August, 1936, because of the applicant's alleged 'failure to live up to the prices as set' by the board of barber examiners in July, 1935, by an order 'purporting to fix a minimum price for all work usually performed by Relator as a registered and practicing barber in the City of Jacksonville, Florida.'

Fulton thereupon in August, 1935, applied for and obtained from this court an alternative writ of mandamus commanding the named respondents, Ives, Spence, and Johnson, as members of the state board of barber examiners to forthwith issue to Fulton a certificate of registration as a registered barber for the period ending August 1, 1936, or that they appear before this court and show cause why they refuse to do so.

Chapter 14650, Acts 1931, of which mention is above made, is an act with a tolerably long title--'tolerably' because not unsupportable by the constitutional limitations restricting the titles of an act to a brief expression of its subject. Section 16, art. 3, Const.

The purpose of the act is to regulate the 'Practice of Barbering' in Florida, to create a board of barber examiners with certain powers and prescribing penalties for the violation of the 'Provisions' of the act and 'Regulations' thereunder. Section 4151(24) to section 4151(48) Cum.Supp.1934 C.G.L. 1927.

The law was considered by this court in Di Lustre v. Penton, 106 Fla. 198, 142 So. 898, 901. In that case the act was sustained against an attack that it contained provisions unlawfully discriminatory in character between persons engaged in the same class of business or occupation. It was held that the exemptions of persons engaged in certain occupations from the provisions of the act and which the petitioner constituted the unlawful discriminations were not so 'unreasonable or unnatural as to make the application so capricious and arbitrary as to violate the principles of law' relating to the guaranty of equal protection.

In 1935 the Legislature enacted chapter 16799 (Senate Bill No. 749) entitled 'An Act to regulate and control the barber industry and for this purpose to further enlarge the present powers of the State Board of Barber Examiners of Florida, defining their additional jurisdiction, powers, and duties during the existing emergency and to declare an emergency exists, and providing penalty thereof.' It was approved June 7, 1935, by the Governor.

Section 1 declares the act to be enacted in the exercise of the police power, and its purpose to be to protect the public welfare, public health, public safety, and public morals. The section declares that 'unfair, unjust, destructive, demoralizing, and uneconomic trading practices have been and are now being carried on in the operation of barber shops in the State of Florida'; that unfair competition exists between individual barbers to the extent that prices have been reduced by such competition to the point 'where it is impossible for an average barber, although working regularly, to support and maintain in a modest manner, a family'; that such condition constitutes a menace to the health, welfare, and reasonable comfort of the inhabitants of the state.

The section declares that, in order to 'protect the well-being of our citizens and to protect the health of the families and other dependents of the barbers,' and the respective patrons of the barbers and promote the public welfare, and due to the 'personal touch and contacts manifested and exercised in the barber business, and the subsequent necessity for well-nourished, strong and healthy persons to engage in the barber business,' the 'barber profession' is declared to be a 'business affecting the public health, public interest, public safety and public morals.'

The section declares the 'present acute economic emergency' to be in part the 'consequence of a severe and increasing disparity between the prices of barber work and other commodities, which disparity has largely destroyed the purchasing power of barbers for industrial and sanitary products so necessary in the operation of their business.' It is declared that such disparity has 'broken down the orderly performing of the duties of the barbering profession and has seriously impaired and injured the families and other dependents of the barbers of the State.' It is stated that such condition is due to the 'financial inability of the members of the barbering profession to supply their families and other dependents with the reasonable necessities of life.'

It is declared that the danger to the public health, safety, welfare, and morals is immediate and impending; the 'necessity urgent, and such as will not admit of delay in public supervision and control in accord with the proper standards of the barber profession.' Such are declared by the act to be facts of legislative determination.

Then follows seventeen more sections of the act. Section 2 refers to chapter 14650, supra, and adopts the definition of terms used in that act. Section 3 empowers the barber board to act as a control board for administering the law and enforcing it. Section 4 invests the board with general powers, making it an instrumentality of the state for attaining the ends recited in the legislative finding, empowers the board to regulate the 'barbering industry,' to investigate and regulate as the emergency requires 'all matters pertaining to the proper supervision and control for the work of barbers'; to 'subpoena barbers, their records, books and accounts and any other person from whom such information may be desired to carry out the purpose and intent of this Act'; to issue commissions to take depositions of witnesses absent from the state. It empowers any member of the board or designated employee to issue subpoenas and administer oaths to witnesses. It undertakes to vest the board with power to enforce obedience to subpoenas issued by it as the same may be enforced by a 'judge, arbitrator, referee, or other person duly authorized under the laws of the State' who is empowered to issue such writs, and the board may act as 'mediator and arbitrator' in any controversy that may arise between barbers.

Section 5 empowers the board to 'adopt and enforce all rules and orders necessary to carry out the provisions of this Act.' Section 6 provides for investigations by the board and for the method of procedure. Section 7 empowers any member of the board, or designated employee, to enter any place where 'barbering is being carried on' and to inspect books, papers, and records for the purpose of ascertaining facts.

Section 8 makes any violation of the provisions of the act or of any rule or order of the board lawfully made a misdemeanor and punishable by a fine of $500, or by imprisonment not exceeding one year, and each day during which the violation of such order continues is deemed to be a separate offense. The section provides that the board may apply to any circuit court for 'relief by injunction' to protect the public interest 'without being compelled to allege or prove that an adequate remedy at law does not exist.'

Section 9 empowers the board to decline to grant licenses and to suspend or revoke licenses already granted. It also provides that 'No Court other than the Supreme Court shall have power to review, suspend or delay any order made by the Board, with respect to the granting of a license, refusal to grant a license, the granting of a conditioned and limited license, or the suspension or revocation of a license, or enjoin, restrain or interfere with the Board or any member thereof, in the performance of official duties with respect thereto.'

Section 10 empowers the board to require licensees to keep certain records. Section 11 requires each licensee to make reports to the board as it may require from time to time. Section 12 empowers the board to ascertain by investigations and proofs 'as the emergency permits and requires, what price for barber work in the several counties of the State of Florida and under varying conditions, will best protect the barber industry of the State and insure a sufficient living wage to the average barber of the State of Florida and his lawful dependents, in the respect[ive] counties of the State of Florida, in which the respective...

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    ...provides for the general welfare. This was indicated in the Kazas case by a citation of the following excerpt from State ex rel. Fulton v. Ives, 123 Fla. 401, 167 So. 394: 'Such a regulation could be justified only upon the fact that the barber trade is a paramount industry of the state int......
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    ...of the federal Supreme Court were manifestly not intended to commit this Court to any departure from its previous decision in State ex rel. Fulton v. Ives, and the court below was in that case affirmed on ground, not involved in the Ives Case, nor in the case at bar. One of the two Federal ......
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    ...action. All of which contemplates that the prices fixed must have some regard to reason besides having a public concern. State v. Ives, 123 Fla. 401, 167 So. 394 [1936]; Scarborough v. Webb's Cut Rate Drug Company, Inc., 150 Fla. 754, 8 So.2d 913 [1942]; Miami Laundry Co. v. Florida Dry Cle......
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