State v. Bays

• Decision Date: 01 June 1935
• Docket Number: 7421.
• Citation: 47 P.2d 50,100 Mont. 125
• Parties: STATE v. BAYS.
• Court: Montana Supreme Court

47 P.2d 50

100 Mont. 125

STATE v. BAYS.

No. 7421.

Supreme Court of Montana

June 1, 1935

Appeal from District Court, Missoula County; Theodore Lentz, Judge.

George W. Bays was convicted of barbering without a license, and he appeals.

Affirmed.

H. R Boden, of Missoula, for appellant.

Raymond T. Nagle, Atty. Gen., and Enor K. Matson, Asst. Attv. Gen for the State.

STEWART Justice.

George W. Bays was convicted in the district court of Missoula county of the offense of barbering without a license, a misdemeanor, in violation of chapter 127, Laws of the Twenty-First Legislative Assembly, 1929. The cause was submitted upon an agreed statement of facts. It appears therefrom that defendant was engaged in the occupation of barbering in the state of Missouri from October 10, 1928 until about August 1, 1932, when he came to the state of Montana. He has been engaged in barbering ever since coming to Montana, and at the time of the trial he was still practicing that occupation and operating a barber shop in the city of Missoula. He has never procured a license to practice that occupation in the state, nor has he ever attempted to comply with the Montana act.

Upon the above facts, the district court found defendant guilty and assessed a sentence of fine and imprisonment. He has appealed from the judgment of conviction, and assigns only one specification of error viz., "The court erred in finding defendant guilty upon the agreed statement of facts." The only argument presented in support of this assignment is an attack upon the validity of the law. Defendant contends that the act is unconstitutional in that it violates the equal protection clause of the Fourteenth Amendment, and the due process clause of the Fifth Amendment of the Federal Constitution, as well as section 7, art. 3, and section 26, art. 5, of the Montana Constitution.

The act creates a board of barber examiners, and vests that board with power to issue certificates of registration to such persons as shall successfully qualify therefor, and to conduct examinations for those who are desirous of procuring a certificate of registration. It provides that it shall be unlawful for any person to practice barbering without first having obtained a certificate of registration. It is also provided in section 4 of the act that: "Any person engaged in the practice of barbering in this State at the time this Act goes into effect, provided he furnish a satisfactory physician's certificate, approved by the State Board of Health, shall be granted a certificate of registration as a registered barber without other examination, provided further that such person shall apply for a certificate on or before the first of August, 1929." It is further provided that all persons desiring to begin the practice of barbering after August 1, 1929, must, in order to obtain a certificate of registration, pass a satisfactory examination conducted by the board, and comply with the other necessary requirements as prescribed by the act.

It has been quite generally held that laws regulating the practice of barbering, like laws regulating various other trades and professions, are within the purview of the police power of a state. Cooper v. Rollins, 152 Ga. 588, 110 S.E. 726, 20 A. L. R. 1105; State v. Zeno, 79 Minn. 80, 81 N.W. 748, 48 L. R. A. 88, 79 Am. St. Rep. 422; State v. Armeno, 29 R.I. 431, 72 A. 216; People v. Logan, 284 Ill. 83, 119 N.E. 913; Moler v. Whisman, 243 Mo. 571, 147 S.W. 985, 40 L. R. A. (N. S.) 629, Ann. Cas. 1913D, 392; see, also, Annotation in 20 A. L. R. 1111, et seq.

Defendant does not question the power and right of the Legislature to prohibit persons from practicing the calling of a barber without first having obtained a license or certificate. He does contend that this act is invalid for the reason that section 4 thereof unduly discriminates against him and in favor of those who were practicing barbering in this state at the time the act went into effect. He argues that, since he was engaged in the occupation of barbering in the state of Missouri prior to August, 1929, he is entitled to the same privileges accorded to barbers who were engaged in the business in Montana at that time. He asserts that, in denying him this privilege, the act contravenes the Fourteenth Amendment of the Federal Constitution; that there existed no reasonable ground for distinction between barbers who were practicing in this state and those practicing elsewhere at the same time; and that such a classification is discriminatory.

We think this position is untenable. The same question has arisen in numerous cases throughout the country upon facts and laws practically identical with those involved here. A reading of the cases discloses that it has been uniformly held that such a distinction does not violate the Fourteenth Amendment of the United States Constitution. See People v. Logan, supra; Criswell v. State, 126 Md. 103, 94 A. 549; Commonwealth v. Ward, 136 Ky. 146, 123 S.W. 673; State v. Tag, 100 Md. 588, 60 A. 465; Cooper v. Rollins, supra; see, also, Annotation 20 A. L. R. 1111, et seq. All of these cases deal with statutes regulating the practice of barbering. Statutes very similar to or identical with section 4 of chapter 127, relating to various other trades and professions, have been sustained as against similar charges that they violated the Fourteenth Amendment. See People v. Griswold, 213 N.Y. 92, 106 N.E. 929, L. R. A. 1915D, 538; State v. Call, 121 N.C. 643, 28 S.E. 517; State v. Doran, 28 S.D. 486, 124 N.W. 53; In re Inman, 8 Idaho, 398, 69 P. 120; State v. Hathaway, 115 Mo. 36, 21 S.W. 1081; Thomas v. State Board of Health, 72 W.Va. 776, 79 S.E. 725, 49 L. R. A. (N. S.) 150; State v. Creditor, 44 Kan. 565, 24 P. 346, 347, 21 Am. St. Rep. 306.

In the last-cited case the Kansas court used the following pertinent language: "It may be unfortunate for the appellant that he had not begun the practice in the state when the law was enacted, and thus have had that evidence of qualification essential to the obtaining of a certificate without a diploma; but, when no more is required of him than is required of all other citizens of the United States proposing to begin the practice within this state, he has no cause to complain."

In the recent case of State ex rel. Freeman v. Abstracters Board of Examiners, 45 P.2d 668, decided May 9, 1935, this court, in disposing of a contention practically the same as that advanced here, said: "The constitutional provisions against discrimination do 'not forbid statutes and statutory changes to have a beginning and thus discriminate between rights of an earlier and later time.' All things must have a period of adjustment and such classification is not 'arbitrary classification."'

In accordance with the foregoing author-ties, we hold that section 4 of this act does not transgress the equal protection clause...