State v. Danberg

• Citation: 40 Del. 136,6 A.2d 596
• Court: Court of General Sessions of Delaware
• Decision Date: 01 May 1939
• Parties: STATE v. FRANK DANBERG

6 A.2d 596

40 Del. 136

STATE v. FRANK DANBERG

Court of General Sessions of Delaware, New Castle County

May 1, 1939

Court of General Sessions for New Castle County, Indictments Nos 15 and 16, March Term, 1938.

Motion to quash the indictment in each case.

The Grand Jury for New Castle County, at the March Term of the Court of General Sessions, A. D. 1938, returned two indictments against the defendant, Frank Danberg.

Indictment No. 15 charges that the said defendant unlawfully conducted the business of barbering at number 210 King Street, in the City of Wilmington, without having a special permit issued by the Board of Examiners of Barbers.

Indictment No. 16 charges that the said defendant, did unlawfully advertise prices for barbering in the window of a certain barber shop, located at 210 King Street, in the City of Wilmington, in such a manner as to permit the said advertising to be readily seen from the outside.

Each of the above mentioned indictments were based upon Chapter 184 of Volume 41, Laws of Delaware.

Said chapter provides in part as follows:

"An Act to promote fair trade practice in reference to barber shops in the City of Wilmington, providing for the closing of said shops on certain days, and limiting the hours during which said shops may be open for business.

"Section 1. That it shall be unlawful to advertise prices for barbering on the outside of any building in which a barber shop is located, or in the window or on the door of any barber shop or any other place adjacent thereto, where it may be readily seen from the outside, or to advertise prices in any periodical, magazine or newspaper.

"Section 2. That it shall be unlawful to open or conduct any business of barbering on Sunday, New Year's Day, Memorial Day Fourth of July, Labor Day, Thanksgiving Day, or Christmas Day. On any working day preceding any of said days, the hours for the conduct of the business of barbering shall be from 8:00 A. M. to 8:00 P. M.; providing, however, that the Board of Examiners of Barbers may, upon the written application of the proprietor of any barber shop, and upon proof that the barber service to the public so requires it, and upon the payment of a special permit fee of One Hundred Dollars to the said Board, issue a special permit to such proprietor for the operation of any particular barber shop at such times outside of and beyond the days and hours in this Section fixed and designated, not to exceed one month, with power to renew the same from month to month, upon a like payment for each and every such renewal.

"All monies received by the said Board for such special permits shall be used by the said Board for the enforcement of this Act.

"Section 3. That on all Sundays and holidays as above mentioned, the shades or curtains of any barber shop shall be so adjusted that a complete view of the interior may be obtained from the outside. On other days, other than Sundays and holidays as aforesaid, the shades or curtains of any barber shop shall be lowered entirely at 7:00 P. M., except Saturdays and days immediately preceding said holidays, when the shades or curtains shall be lowered entirely at 8 P. M. The provisions of this Section as to time for opening and closing refer to Eastern Standard Time, except during those periods when so-called Daylight Saving Time is in common use in the City of Wilmington, when the time herein stated shall refer to and be computed according to said Daylight Saving Time.

"Section 4. That in order to cover the extra cost of the enforcement of this Act, each and every proprietor of any barber shop in the City of Wilmington aforesaid, shall pay, in addition to any other fee or charge now required by law, the sum of Two Dollars, to the said Board of Examiners of Barbers, within thirty days after the approval of this Act, and annually thereafter.

"Section 5. That any person violating or refusing to comply with any of the provisions of this Act, shall be deemed guilty of a misdemeanor and upon conviction thereof by any Court of competent jurisdiction shall be punished by a fine of not less than Twenty-five Dollars and not exceeding One Hundred Dollars or by imprisonment for a term not exceeding one month, or by both such fine and imprisonment, in the discretion of the Court."

The defendant filed a motion to quash each of said indictments on the ground that the statute above referred to was unconstitutional, assigning these reasons therefor:

1. That it violates Section 16 of Article 2 of the Constitution of this State.

2. That it violates the due process clause of The Constitution of the United States and the Constitution of the State of Delaware.

3. That it violates Article 12 of the Constitution of this State.

Indictments found against the defendant quashed.

C. Edward Duffy, Deputy Attorney-General, for the State.

Robert H. Richards, Jr., (of Richards, Layton and Finger) for the defendant.

RICHARDS J., sitting.

OPINION

RICHARDS, J.

The first reason relied upon by the defendant to quash the indictments against him, involves a construction of Section 16 of Article 2 of the Constitution of Delaware, which contains this language:

"No bill or joint resolution, except bills appropriating money for public purposes, shall embrace more than one subject, which shall be expressed in its title."

This article of our constitution has been considered by the Court on numerous occasions and it has consistently defined its purpose in these terms:

"It may be assumed as settled that the purpose of these provisions was:

"First, to prevent hodgepodge or log-rolling legislation;

"Second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might, therefore, be overlooked, and carelessly and unintentionally adopted;

"Third, to fairly apprise the people through such publication of legislative proceedings as is usually made of the subjects of legislation that are being considered, in order that they may have an opportunity of being heard thereon by petition or otherwise, if they shall so desire."

Equitable Guarantee & Trust Company v. Donahoe, 19 Del. 191, 3 Penne. 191, 49 A. 372, 373; Wilmington Trust Company v. Highfield, 4 W. W. Harr. (34 Del.) 394, 399, 153 A. 864; Baxter v. State, 9 W. W. Harr. (39 Del.) 223, 197 A. 678; In re Cypress Farms Ditch, 7 W. W. Harr. (37 Del.) 71, 180 A. 536.

The title of the Act under consideration shows clearly that the subject upon which legislation is sought is barber shops. Section 1 of the Act deals with advertising prices for barbering by barber shops: Section 2 of the Act deals with the days and hours of conducting the business of barbering in barber shops, and for securing special permits from the Board of Barber Examiners for certain privileges: Section 3 of the Act deals with the time and manner of adjusting the shades or curtains in barber shops: Section 4 of the Act provides that the proprietor of any barber shop in the city of Wilmington shall pay the sum of Two Dollars to the Board of Barber Examiners. Section 5 of the Act provides for penalties for its violation. Nothing can be found among the things above enumerated which are provided for by the Act, which is not germane to its title. It is quite true they are not specifically mentioned, but they all pertain to the business of conducting a barber shop and the title of the Act is sufficient to inform the public of its contents. The Act does not violate Section 16 of Article 2 of the Constitution.

The defendant makes the further contention that the statute under consideration, deprives him of the rights guaranteed to him under Article 14 of the Amendments to the Constitution of the United States, U.S.C. A., also Section 7 of Article 1 of the Constitution of the state of Delaware. These provisions are generally referred to as, the "due process clauses", and they have been considered by the Courts and their meaning explained in many cases.

The language found in our Constitution is:

"nor shall he be deprived of life, liberty or property, unless by the judgment of his peers or by the law of the land".

Article fourteen of the Amendments to the Constitution of the United States, denies the right of the States, to "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".

The defendant, Danberg, is the proprietor of a barber shop which he has conducted for many years at 210 King Street, in the City of Wilmington. He is licensed to maintain his business at said address by both the City and State; has always complied with the sanitary regulations, and his method or manner of carrying on his business is not questioned in any way other than the violation of this statute. His customers are working men who find it more convenient to come to his shop in the evening and on holidays. The shop is not kept open on Sunday, but I understand is open for business during a portion of the evening and during a portion of the time on holidays.

The prices charged for his services are commensurate with the ability to pay of those who patronize his shop.

It is contended on behalf of the State, that the purpose of the Act is to promote fair trade practices in reference to barber shops, which the State may do under its general police power. It must be conceded that this power is very broad, and includes the right to enact such measures as may be necessary to protect the public health, safety and morals. By virtue of this power the Legislature may regulate the various professions, occupations and businesses. But it must be held within some bounds, and these are found in Fourteenth Amendment to the Federal Constitution and our Constitutional...