State v. Armeno

• Decision Date: 17 March 1909
• Parties: STATE (MURRAY, Prosecutor) v. ARMENO.
• Court: Rhode Island Supreme Court

72 A. 216

29 R.I. 431

STATE (MURRAY, Prosecutor)

v. ARMENO.

Supreme Court of Rhode Island.

March 17, 1909.

Case certified from District Court, Sixth Judicial District.

Angelo Armeno, having been prosecuted on a complaint by John A. Murray for practicing the occupation of barber without registration, moved to dismiss the complaint on the ground of the unconstitutionality of Pub. Laws 1903, p. 26, c. 1100. The constitutional questions involved were certified by the district court under Court & Practice Act 1905, § 474. Questions returned.

William B. Greenough, Atty. Gen., and Harry P. Cross, Asst. Atty. Gen., for the State. John I. Devlin, for defendant.

BLODGETT, J. This is a criminal complaint brought in the district court of the Sixth judicial district under sections 14 and 15, c. 1100, pp. 32, 33, of the Public Laws passed April 17, 1903, and charges that on the 17th day of November, 1908, at Providence, the defendant "did willfully practice the occupation of barber, to wit, did shave, trim the beard, and cut the hair of a certain person, to wit, Andrew J. Flinn, for hire and reward received by the said Angelo Armeno, alias John Doe, without having first obtained a certificate of registration in accordance with the provisions of chapter 1100 of the Public Laws of said state of Rhode Island." The defendant was arraigned on December 15, 1908, and pleaded "not guilty." On December 18th, he filed a motion asking that the complaint be dismissed on the ground that the act under which the complaint is brought is unconstitutional, and thereupon, under section 474, Court & Practice Act 1905, the constitutional questions raised were certified to this court to be heard and determined, as follows:

"(1) Is chapter 1100, of the Public Laws of Rhode Island unconstitutional, in that in section 4 thereof it authorizes any member of the board of examiners to enter any barber shop in any city in this state, without warrant provided for in section 6 of article 1 of the Constitution of the state of Rhode Island?

"(2) Is said chapter in conflict with sections 10 and 15 of article 1 of the Constitution of Rhode Island, for the reason that in section 13 of said chapter it is provided that a person aggrieved by the finding of the board may appeal to the Supreme Court, and makes no provision for trial by jury?

"(3) Is said chapter in sections 4 and 15 thereof in conflict with article 5 of amendments to the Constitution of the United States of America, in that it provides in section 4 the statutory punishment for common nuisance, and in section 15 a punishment by fine?

"(4) Is said chapter in sections 1 and 16 thereof a local or special law, and in conflict with section 1 of article 14 of amendments to the Constitution of the United States, in that its government of the cities of the state is compulsory, though optional so far as towns are concerned, thus denying to the citizens of the cities equal protection of the laws with the citizens of the towns?

"(5) Is said chapter in sections 1 and 16 thereof in conflict with section 1 of article 14 of amendments to the Constitution of the United States, in that its provisions govern the cities of the state and only such towns as shall, by their councils, adopt the provisions of this chapter, thereby denying to the people of the towns equal protection of the laws with the people of the cities?"

Article 1, § 6, of the Constitution of Rhode Island provides: "Sec. 6. The right of the people to be secure in their persons, papers and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but on complaint in writing, upon probable cause, supported by oath or affirmation, and describing as nearly as may be, the place to be searched, and the person or things to be seized."

1. The portion of section 4, c. 1100, p. 28, of the Public Laws, which is claimed to be in contravention of this constitutional provision, is as follows: "Any member of said board shall have power to enter and make reasonable examination of any barber shop in any city in this state during business hours, for the purpose of ascertaining the sanitary condition thereof." As is well stated in the brief for the state, this section of the act in question does not authorize either a search or a seizure. It merely authorizes an examination, which is essentially different from a search. Nothing is authorized to be seized. No authority is given to break open doors, drawers, desks, chests, or anything else. The purpose is merely to empower the board to survey premises at reasonable times so as to know the sanitary conditions of tools, appliances, and furnishings, and to enable it to determine whether or not the law is being properly regarded. Although the conditions upon such an examination should be found to be most unclean and unsanitary, yet the examiner is not authorized to take any summary action, such as seizure of the objectionable tools, appliances, or furnishings, as the case may be; but the examination is made only "for the purpose of ascertaining the sanitary condition thereof" and to enable the board to judge whether or not the law is being obeyed, with the ultimate purpose of revoking the offender's certificate of registration after notice in writing and an opportunity to be heard with appeal to the Supreme Court, as provided in section 13 of the act as amended by section 1215, Court & Practice Act 1905. In Commonwealth v. Carter, 132 Mass. 12, the constitutionality of a milk law authorizing inspectors to enter carriages used in the conveyance of milk and to take specimens thereof was contested because it warranted unreasonable searches and seizures. It was held by the court (page 15 of 132 Mass.) that: "Such a seizure of milk for the purposes of examination is a reasonable method of inspection, and does not require a warrant. It is a supervision under the laws by a public officer of a trade which concerns the public health and is within the police power of the commonwealth."

We therefore answer the first question in the negative.

2. The appeal to the Supreme Court provided for in section 13 as amended by section 1215, Court & Practice Act 1905, does not deprive the defendant of any constitutional right to a jury trial. The portion of section 13 in question is as follows: "Any person aggrieved by any decision or ruling of said board may, within thirty days, exclusive of Sundays and legal holidays, after receiving notice of said decision, take an appeal therefrom to the Supreme Court, and said court shall, as soon as may be, hear and determine said appeal." The material part of article 1, § 10, of the Constitution of Rhode Island, is as follows: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury." Article 1, § 15, of the Constitution of Rhode Island, is as follow;s: "The right of trial by jury shall remain inviolate." Section art. 1, of the Constitution, has no application because such a decision or ruling of the board is not a criminal prosecution, but is simply a method provided for revoking certificates of registration when the holder thereof has shown himself unfitted to practice the occupation of barber, or has disqualified himself by his failure to post his certificate in a conspicuous place or to renew his certificate and pay the fee required by law. There is no penalty or punishment provided except the forfeiture of his license. A judicial trial, however, is secured to the defendant under this provision, and section 15, art 1, of the Constitution, does not apply to cases of this kind. See State v. Roy, 22 R. I. 538, 48 Atl. 802.

3. It is a sufficient answer to the third question submitted to say that article 5 of amendments to the Constitution of the United States does not apply to state governments, but only to the federal government. State v. Flynn, 16 R. I. 10, 11 Atl. 170; State v. Brown & Sharpe Mfg. Co., 18 R. I. 16-20, 25 Atl. 246, 17 L. R. A. 856. The construction placed upon sections 4 and 15 of this act by the respondent in his contention, that they impose two different punishments for the same offense, is unwarranted. Section 4 declares an insanitary barber shop to be a common nuisance, and provides that "the proprietor thereof shall be subject to prosecution and punishment therefor," and section 15 provides that the penalty for maintaining this special statutory nuisance shall be "a fine of not more than twenty dollars."

4 & 5. The material portions of sections 1 and 16 of the act under consideration are as follows:

"Sec. 1. It shall be unlawful for any person to practice the occupation of barber in any city in this state unless he shall have first obtained a certificate of registration as provided in ...