State ex rel. Newman v. City of Laramie

• Decision Date: 05 March 1929
• Docket Number: 1506
• Citation: 40 Wyo. 74,275 P. 106
• Parties: STATE EX REL. NEWMAN v. CITY OF LARAMIE, ET AL. [*]
• Court: Wyoming Supreme Court

275 P. 106

40 Wyo. 74

STATE EX REL. NEWMAN v. CITY OF LARAMIE, ET AL. ^[*]

No. 1506

Supreme Court of Wyoming

March 5, 1929

APPEAL from District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Action by the State on the relation of A. Newman, against the City of Laramie and others, for a writ of prohibition to be directed to respondents, restraining the prosecution of the relator for the violation of an ordinance. From the judgment relator appeals.

Judgment reversed and case remanded.

Sullivan and Garnett, for appellant.

In order to sustain legislation, under the police power, the courts must find that it tends to prevent evil, or protect health, morals, safety or welfare. 6 R. C. L. 243. Even if within the scope of police power, the enactment must be reasonable in its terms. 6 R. C. L. 244. The present ordinance is violative of both of the rules above stated. Soon v. Crowley, 113 U.S. 703; Barbier v Connolly, 113 U.S. 27; Spann v. Gaither, 136 A 41; Ex parte West, 243 P. 58; People v. Gibbs, 186 Mich. 127. There is no principle of public health protection, sanitation, morals or welfare vindicated by closing barber shops at 6 o'clock in the evening, even in a remote degree. Lockner v. N. Y., 3 Ann. Cas. 1133, 1136; People v. Williams, 12 A. L. R. (N. S.) 1130. The courts are the proper judges of whether the enactment falls within the scope of police power. Byrne v. Co., L. R. A. 1917 A, 1216, 1219; Lockner v. N. Y., supra; Replogle v. Little Rock, 36 A. L. R. 1333; Meyer v. Nebr., 262 U.S. 390; Marbury v. Madison, 1 Cranch 137; Adkin v. Hospital, 24 A. L. R. 1238; Mugles v. Kansas City, 123 U.S. 623; Klever Co. v. Chicago, 323 Ill. 368. We concede that the case of Falco v. A. City, 122 A. 810, supports the contention of respondents, but we submit that a question of first impression in this jurisdiction should not be governed by a single decision of a sister state. Gorrell v. Co., (N. C.) 46 L. R. A. 513. It is respectfully submitted that Section 5 of the ordinance is not sustained by the police power, is unreasonable in its terms, and in conflict with constitutional rights.

C. M. Eby and Charles B. Coolidge, for respondents.

Respondent has authority to regulate and control barber shops. 1958 C. S.; Edwards v. Cheyenne, 19 Wyo. 135. Respondent is presumed to have acted upon a knowledge of facts and in promotion of the public welfare. State v. Sherman, 18 Wyo. 177. Courts will not condemn legislation in doubtful cases. Dartmouth College v. Woodward, 4 U. S. (L. Ed.) 629; 6 R. C. L. 97; 19 R. C. L. 800. This ordinance, having been passed under a general grant of power, the presumption is in favor of its validity. Spann v. Gaither, 136 A. 43; State v. Zeno, (Minn.) 79 Am. St. Rep. 424; Carlton v. Watertown, 207 N.Y.S. 339. Barber shops are a proper subject of regulation. Strathan v. Com., 136 A. S. R. 299. But the trade must not be singled out from other classes of service, or labor, in the ordinary vocations of life. Ex parte Jentsch, 44 P. 804; Eden v. People, 43 N.E. 1108; City v. Krech, 46 P. 255; People v. Logan, 119 N.E. 114. If the regulation be found to be for the public welfare, it should be sustained. State v. Nichols, 69 P. 374; People v. Bellett, 41 A. S. R. 592; State v. Murray, 175 N.W. 666. The ordinance is well within the police power. Falco v. City, 122 A. 610; State v. LeBarron, 24 Wyo. 526; State v. Reed, 33 Wyo. 396. In re Holden, 42 L.Ed. 791.

Kinkead & Pearson and G. R. McConnell, Amicus Curiae.

The City of Laramie acted within its power in the enactment of the ordinance 1958 C. S. The only question effecting the validity of the ordinance is that of its reasonableness; it cannot be fairly said that any question of constitutional law is involved. People v. Robinson, 134 N.E. 815; 22 A. L. R. 835. The necessity of the legislation is for the determination of the municipality. Mader v. Topeka, (Kan.) 189 P. 169; 15 A. L. R. 340; Ligonier Co. v. Borough, (Pa.) 65 A. 549. Of course, municipal ordinances must be reasonable. People v. Cregier, (Ill.) 28 N.E. 812; Beck Co. v. Milwaukee, (Wis.) 120 N.W. 295; Chicago v. Co., (Ill.) 125 N.E. 37. The following cases illustrate the rule that enactments of this class are presumed to be valid, unless it be shown by evidence that they are unreasonable. State v. Clifford, (Mo.) 128 S.W. 755; Briggs v. Co., 66 So. 96; Ex parte McCoy, (Calif.) 101 P. 44; Ry. Co. v. Jersey City, 68 A. 1072; City v. Chalier, (Utah) 134 P. 746 P.; Co. v. Sacramento, (Cal.) 152 P. 931; People v. Ry. Co., 83 N.E. 839; Chicago Co. v. Averill, (Ill.) 79 N.E. 654; Bldg. Com. v. Kunin, et al., 148 N.W. 207. No evidence was offered in the case in the lower court; and there was nothing whatever before the court except the agreed statement of facts showing that relator was operating in violation of Section 5 of the ordinance. Efficient inspection of trade practice requires that it be carried on in reasonable business hours. This affords a ground for requiring the closing of barber shops at 6 o'clock in the evening. Falco v. Atlantic City, (N. J.) 122 A. 610. The closing of barber shops at 6 o'clock in the evening would seem to be a "reasonable" regulation and in the interest of public welfare, when it is considered that other lines of business in general, close at that hour.

Sullivan and Garnett, in reply.

Our original brief defines two major points of law which we believe should control the decision in this case. First: that the ordinance in question must fall within the scope of the police power, and Secondly: that it must also be a reasonable exercise of that power. We think it is highly important that these two fundamental principles should be kept in mind. Many of the authorities cited, fail to make this distinction and discuss the two principles as one. The briefs of respondents, as well as of counsel appearing as amicus curiae, dwell upon the subject of reasonableness, leaving out the question as to whether the subject is one within the scope of police power. It is apparently assumed in their briefs, that the power of regulation, having been delegated by the legislature, may be exercised in any manner, deemed necessary by respondent, and upon that premise, it is assumed that the so-called sanitary provisions, are within the police power. Since our brief was filed, our attention has been called to the recent case of Chaires v. Atlanta, 55 A. L. R. 230, holding that it is unreasonable to prescribe closing hours, and citing the case of Yee Gee v. San Francisco, 235 F. 757. It is not, according to the declared weight of authority, within the scope of the police power to limit the hours in which a business may be operated.

KIMBALL, Justice. BLUME, C. J., and RINER, J., concur.

OPINION

KIMBALL, Justice.

This action was commenced in the District Court on a petition for a writ of prohibition to be directed to the City of Laramie and certain city officers, including the police justice, restraining the prosecution of the relator for the violation of an ordinance of that city. The case was heard by the District Court on an agreed statement of facts. The permanent writ prayed for was denied, and the alternative writ issued at the commencement of the action was quashed. The case is here on appeal.

The ordinance is entitled "An Ordinance for Licensing, Regulating and Controlling Barber Shops," and the following summary of its provisions shows its purpose:

Section 1 authorizes the city health officer to inspect all barber shops and to enforce the rules and regulations of the ordinance, and declares that all shops shall be open for inspection at any time during business hours. Section 2 provides that no shop shall be operated except under a license to be issued by the city clerk, and fixes the amount of the license fee. Section 3 provides numerous sanitary rules and regulations. Section 4 provides that no shop shall be used as a dormitory, and that no person afflicted with any communicable disease shall work or be served therein. Section 5, which contains the provision in question in the case, is as follows:

"No barber shop shall open for business earlier than eight o'clock A. M., nor shall any such barber shop close later than six o'clock P. M. throughout the year, excepting on Saturdays and days preceding the following legal holidays: January 1st, May 30th, July 4th, Labor Day, Armistice Day, Thanksgiving and Christmas day, when they shall close not later than nine o'clock P. M. All shops shall remain closed on Sundays and the holidays named above."

Section 6 prescribes punishment by fine for violation of the provisions of the ordinance.

The agreed statement of facts shows the passage and text of the ordinance; that relator, the owner and proprietor of a barber shop, conducts his shop in a clean and orderly manner, but allows it to remain open for business later than 6 o'clock p. m. of each day; that he was being, and would continue to be, prosecuted therefor, and that the sole point in issue was the validity of the ordinance as affecting the relator.

The only question in the case is raised by relator's assertion that the city has no power to require that his shop be closed from 6 o'clock in the evening until 8 o'clock in the morning of certain days. We understand that there is no contention that the ordinance is invalid in requiring the shops to be closed on Sundays and the named holidays. The relator claims that the questioned provision is unreasonable and contrary to Section 1 of the 14th Amendment to the Constitution of the United States. The defendants claim that it is a reasonable exercise of power delegated to the city by Section 1958, Wyo. C. S. 1920, which provides:

"Power and authority is hereby granted to each incorporated city or town within the state, to license,...