State v. Lockey

• Citation: 152 S.E. 693,198 N.C. 551
• Decision Date: 02 April 1930
• Docket Number: 274.
• Parties: STATE v. LOCKEY.
• Court: North Carolina Supreme Court

152 S.E. 693

198 N.C. 551

STATE v. LOCKEY.

No. 274.

Supreme Court of North Carolina

April 2, 1930

Appeal from Superior Court, Cumberland County; Johnson, Special Judge.

C. P Lockey was convicted of exercising the trade or profession of barbering without obtaining a certificate of registration, as required by the Barbers' Act (Pub. Laws 1929, c. 119) and he appeals.

No error.

Statute regulating practice of barbering applies to proprietor barbering (Barbers' Act).

The following charge was preferred against the defendant in the recorder's court of Cumberland county, N. C.: "J. G Shannonhouse, being duly sworn, complains and says, that at and in said county, in Cross Creek Township, on or about the 21st day of August, 1929, C. P. Lockey did unlawfully wilfully violate Section 1, Chapter 119 of the Public Laws of 1929, by shaving and cutting hair for various persons for pay, without first having obtained a certificate of registration either as a registered apprentice or a registered barber issued by the State Board of Barber Examiners, said acts of shaving and cutting hair having been done in the City of Fayetteville, a city having a population of more than two thousand people, contrary to the form of the statute, and against the peace and dignity of the State."

On the charge an order of arrest was duly made, and defendant was tried before the recorder, convicted, and fined $10, and appealed to the superior court. In the superior court, the defendant was convicted and a like fine was imposed. The defendant duly excepted, assigned errors, and appealed to the Supreme Court.

C. P. Lockey, in pro. per.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARKSON J.

The defendant was convicted of exercising the trade or profession of barbering without obtaining the certificate of registration, as required by the Barbers' Act, chapter 119, Public Laws of 1929, and, from the judgment upon such conviction, appealed to this court.

The practice of barbering is defined in section 2 of the act. The Act became effective June 30, 1929. The evidence shows that the defendant was operating a one-chair barber shop in the city of Fayetteville, after the effective date of the Barber Act, without having obtained a certificate of registration, as required by that act. This was a violation of section 1 of the act, with the penalty therefor fixed in section 21, as a fine of not less than $10, nor more than $50.00.

He had paid the annual occupation tax, provided in section 140 of the Revenue Act of 1929, chapter 345, Public Laws. The amount he had paid was $2. The Barbers' Act required the payment by a barber, as distinguished from an apprentice, of $5 for the certificate to be issued, under the act. In addition thereto, it required the payment of $3 annual tax, to be applied for the purpose of the act. The payment of the $5 tax was once for all.

The defendant contends (1) that chapter 119, Public Laws 1929, is unconstitutional. We cannot so hold.

It is admitted that defendant did what the act prohibited him from doing. The Barbers' Act is a comprehensive one. A state board of barber examiners is established, consisting of three barbers of experience who have practiced barbering at least five years and are appointed by the Governor for 6, 4, and 2 years. The Governor may remove any member for good cause shown and appoint a successor for the unexpired term. The board, not less than four times a year, shall conduct examinations of applicants for certificates of registration to practice (1) as registered barbers (2) as registered apprentices.

Section 14 reads as follows: "The fee to be paid by an applicant for a Certificate of Registration to practice barbering, as an Apprentice is three dollars and such fee must accompany his application. The annual license fee of an Apprentice shall be one dollar and fifty cents. The fee to be paid by an applicant for an examination to determine his fitness to receive a Certificate of Registration as a Registered Barber is five dollars. The annual license fee of a Registered Barber shall be three dollars. All licenses, both for Apprentices and for Registered Barbers, shall be renewed as of the thirtieth day of June of each and every year, and such renewals for Apprentices, shall be one dollar and fifty cents, and for Registered Barbers three dollars. The fee for registration of an expired Certificate for Registered Barbers shall be five dollars, and registration of expired Certificate of an Apprentice shall be three dollars. The fees herein set out are not to be increased by the Board of Barber Examiners, but said Board may regulate the payment of said fees and prorate the license fees in such manner as it deems expedient."

Section 16 provides that the state board of health shall have authority to make reasonable rules and regulations for the sanitary management of barber shops and barber schools; have a right to inspect same. From the fees collected under this act, $6,000 is appropriated to the state board of health to enforce the act.

Section 19: "The Board may either refuse to issue or renew, or may suspend or revoke, any Certificate of Registration for any one or combination of the following causes: 1. Conviction of a felony shown by certified copy of the record of the court of conviction. 2. Gross malpractice or gross incompetency. 3. Continued practice by a person knowingly having an infectious or contagious disease. 4. Advertising by means of knowing false or deceptive statements. 5. Habitual drunkenness or habitual addiction to the use of morphine, cocaine or other habit-forming drugs. 6. The commission of any of the offences described in section twenty-one, sub-divisions three, four and six [3. Permitting any person in one's employ, supervision or control, to practice as a barber unless that person has a Certificate as a Registered Barber. 4. Obtaining or attempting to obtain a Certificate of Registration for money other than required fee, or any other thing of value, or by fraudulent misrepresentations. 6. The wilful failure to display a Certificate of Registration as required by section seventeen]."

Section 20 provides for notice and a hearing.

Section 21 makes the violation of certain matters a misdemeanor, punishable upon conviction by a fine of not less than $10 nor more than $50.

Section 23: "That the provisions of this act shall apply only to those barber shops maintained and operated in those cities and towns of the State with a population of two thousand or more, as shown by United States census of nineteen hundred and twenty, and to shops maintained and operated within a distance of one mile from the boundary limits of such cities and towns: Provided, that in towns of less population barbers may willingly come into the Association, be bound by its regulations and protected by its benefits: Provided further, this act shall apply to all cities and towns in the County of Bladen irrespective of population."

The defendant contends that the General Assembly had no authority to create an expense and arbitrarily and unreasonably classify the citizens and taxpayers of the state and unjustly place the whole burden upon a few thousand of a particular class-- the barbers. He further contends that the act makes a further arbitrary and unreasonable classification among the barbers themselves in making the act applicable to towns of 2,000 or more population. We cannot so hold.

In Carley & Hamilton, Inc., v. Snook, 50 S.Ct. 204, at page 207, 74 L.Ed. --, it is said: "It is for the Legislature to draw the line between the two classes." Southeastern Express Co. v. Charlotte, 186 N.C. 668, 120 S.E. 475; Clark v. Maxwell, 197 N.C. 604, 150 S.E. 190.

In State v. Call, 121 N.C. at page 647, 28 S.E. 517, 518, citing numerous authorities, it is held: "The Statute, bearing alike upon all individuals of each class, is not a discrimination forbidden by the state constitution nor by the Fourteenth amendment. *** It has been frequently adjudged by the supreme court of the United States that the Fourteenth amendment does not restrict the powers of the state when the statute applies equally to all persons in the same class, and that ordinarily the state is the judge of the classification."

The right to establish the qualifications of an "attorney at law" is constitutional and rests in the police power by virtue of which a state is authorized to enact laws to preserve the public safety, maintain the public peace, and promote and preserve the public health and morals. In re Applicants for License, 143 N.C. 1, 55 S.E. 635, 10 L. R. A. (N. S.) 288, 10 Ann. Cas. 187.

The power of the General Assembly to regulate the practice of "medicine and surgery" has been held constitutional. State v. Van Doran, 109 N.C. 864, 14 S.E. 32; State v. Call, 121 N.C. 643, 28 S.E. 517.

In State v. Call, supra, at page 646 of 121 N. C., 28 S.E. 517, it is laid down that the lawmaking power of the state, in the exercise of its police power, has a right to require an examination and certificate as to the competency of persons "to teach, to be druggists, pilots, engineers, or exercise other callings, whether skilled trades or professions, affecting the public and which require skill and proficiency (Cooley, Torts, 289; Cooley, Const. Lim. [6th Ed] 27 745, 746; Tied. Lim. § 87). To require this is an exercise of the police power for the protection of the public against incompetents and impostors, and is in no sense the creation of a monopoly or special privileges. The door stands open to all who possess the requisite age and good character, and can stand the examination which is exacted of all applicants alike."

The General Assembly has power to regulate those engaged in the...