State v. Ross

• Decision Date: 15 December 1937
• Docket Number: 14587.
• Citation: 194 S.E. 439,185 S.C. 472
• Parties: STATE v. ROSS.
• Court: South Carolina Supreme Court

194 S.E. 439

185 S.C. 472

STATE v. ROSS.

No. 14587.

Supreme Court of South Carolina

December 15, 1937

Appeal from Spartanburg County Court; Arnold R. Merchant, Judge.

Mrs. T B. Ross was convicted of violating the Act of March 10, 1934 38 St. at Large, p. 1349, §§ 1, 28(e), regulating the practice of the cosmetic art by practicing without securing a license, and she appeals.

Affirmed.

Order of Judge Merchant follows:

The defendant, Mrs. T. B. Ross, was tried and convicted before Magistrate Dudley K. Gaffney, a magistrate in and for the county of Spartanburg, under a warrant charging that the said defendant "did operate a business of cosmetic art without the required license," in violation of the Act of the General Assembly of South Carolina, approved the 10th day of March, 1934, entitled "An Act to Regulate the Occupation of Hairdressers and Cosmetologists, for the Licensing of Persons to Carry on and Teach Such Practices, to Insure the Better Education of Regulating the Proper Conduct and Sanitation of Hairdressers and Cosmetologist Establishments and Schools, for the Protection of the Public Health, and to Provide Penalties for the Violation Thereof." 38 Stat. at Large, p. 1349. Upon conviction before the magistrate, the defendant was sentenced to pay a fine of $25 or serve 30 days upon the public works of Spartanburg county. In due time the defendant served notice of intention to appeal from the finding of the magistrate and thereafter the appeal was heard by me in the county court of Spartanburg county, which has jurisdiction to hear and determine all appeals in civil cases and criminal cases respectively, from judgments rendered by the magistrate courts, and all other inferior courts.

The defendant was charged specifically with violating section 1 and section 28, subd. (e), which provides, among other things, that the violation thereof shall constitute a misdemeanor. Section 1 reads as follows: "No Person firm, partnership, corporation or combination of persons shall for pay or reward, either directly or indirectly, practice or attempt to practice Cosmetic Art as hereinafter defined in the State of South Carolina without a certificate of (or) registration either as a Registered Apprentice or as a Registered Cosmetologist issued pursuant to the provisions of this act by the State Board of Cosmetic Art Examiners hereinafter established." The pertinent subdivision, section 28(e), provides "(e) the wilful failure to display a certificate of registration as required by Section 24."

Cosmetic art is defined by the act as follows: "The systematic massaging, with the hands or mechanical apparatus, of the scalp, face, neck, shoulders and hands; the use of cosmetic preparations and antiseptics in connection therewith; manicuring, cutting, dyeing, cleansing, arranging, dressing, waving and marcelling of the hair, and the use of electricity for stimulating growth of hair." Section 2.

The act sets forth the qualifications to be possessed by an applicant for registration and provides for examination of the applicant by the Board of Cosmetic Art Examiners. The board is empowered to promulgate reasonable rules and regulations for cosmetic art shops, beauty parlors, hairdressing establishments, cosmetic art schools and colleges. The examination of applicants for certificates of registratration "shall include such practical demonstrations and oral or written tests as the said Board may determine." Section 17. The act provides for the registration without examination, of those practicing cosmetic art at the time that the act became law. Upon the applicant successfully passing the examination and becoming entitled to registration, there are certain license fees required. By the terms of the act there are certain persons, while engaged in the proper discharge of their professional duties, exempt from its provisions. The ones so exempted are: "(a) Persons authorized under the laws of the State to practice Medicine and Surgery. (b) Commissioned Medical or Surgical Officers of the United States Army, Navy or Marine Hospital Services. (c) Undertakers. (d) Barbers. (e) The provisions of this Act shall not apply to persons engaged in demonstrating the use of any facial or beauty preparation for the purpose of offering for sale to the public such facial and/or beauty preparations." Section 22.

The board of examiners is given the right and power to issue or renew, suspend or revoke, any certificate of registration for violation of any of the causes set forth therein, after giving the person accused a proper hearing by the board. If, after hearing by the board, the board convicts the accused, the accused shall have the right of appeal to the circuit courts of this state.

The defendant's first contention is that the evidence produced at the trial of the case was not sufficient to sustain a conviction. The evidence, as reported by the magistrate, is amply sufficient upon which to base a finding of guilt, and, therefore, this ground of appeal is dismissed.

The defendant attacks the constitutionality of the act under which she was tried and convicted and alleges that it is void and illegal for the reasons: (1) That the act in question undertakes to delegate the legislative power to the Cosmetic Art Board in violation of section 14, article 1, of the State Constitution; (2) that the act infringes upon and discriminates against the rights of the defendant in violation of Amendment 14, § 1, of the Constitution of the United States, and section 5 of article 1 of the State Constitution; and (3) that the act is so indefinite and uncertain that its meaning cannot be determined with reasonable certainty and, therefore, does not prescribe a crime upon which the defendant can be convicted.

The defendant testified that she has been engaged in conducting a beauty parlor in the city of Spartanburg for a number of years, in which she employed operators; that she is familiar with the methods used in beauty parlors and barbershops. She testified that at the present time some women occasionally go to barbershops to receive haircuts and shampoos as are obtained in beauty parlors, cosmetic art shops, and hairdressing establishments; that undertakers also do the same work as is done in barbershops, cosmetic art shops, beauty parlors, and hairdressing establishments. That the only difference between the work of the barber and that of the operators of cosmetic art shops, beauty parlors, and hairdressing establishments, according to the evidence, being that the barber shaves his male customers. The State undertook to contradict the evidence, showing that in some instances it was necessary to partly disrobe women for certain treatments given in beauty shops, to which the defendant agreed. The State brought out on cross-examination from the defendant that she had only had a very few male customers in her entire practice; that the only work done on these male customers was the manicuring of the nails; and that she did not cater to male customers for any work. The evidence further shows that the defendant had not complied with the requirements of the act that she was charged with violating.

This now brings us to the consideration of the constitutional questions presented by the appeal.

Does the challenged act delegate legislative powers to the Board of Cosmetic Art Examiners in contravention of section 14 of article 1 of the State Constitution and section 1 of article 3 of the State Constitution?

A court should not declare a statute unconstitutional unless its invalidity is manifest beyond a reasonable doubt, and the burden to show its unconstitutionality rests upon the one making the attack. It does not require citation of authorities to sustain this proposition, for our court has so often announced this principle, in cases which it has been called upon to decide the question of the constitutionality of certain statutes, that this principle has become axiomatic.

The defendant does not contend that the Legislature cannot regulate cosmetologists, beauty parlor operators, or hairdressing establishments. It must be conceded that the Legislature can, under its police power granted it by the Constitution, regulate trades or professions which may affect the health, comfort, and safety of the public. A study of the act shows that it was complete in itself when it left the hands of the lawmakers, and the only duty resting upon the board is to make reasonable rules and regulations, not in conflict with the provisions of the Constitution or beyond the powers granted it relating to the enforcement of the act. The board is given certain administrative duties and is vested with discretionary powers. The Legislature cannot delegate its power to make law but it may empower boards or commissions to make rules and regulations for administering the law and vesting them with discretionary powers. State ex rel. Port Royal Mining Co. v. Hagood, 30 S.C. 519, 9 S.E. 686, 688, 3 L.R.A. 841; Santee Mills et al. v. Query et al., 122 S.C. 158, 115 S.E. 202; State ex rel. Richards v. Moorer, 152 S.C. 455, 150 S.E. 269; Cathcart v. City of Columbia et al., 170 S.C. 362, 170 S.E. 435; Heslep v. State Highway Department, 171 S.C. 186, 171 S.E. 913; Crawford v. Johnston, Governor, et al., 177 S.C. 399, 181 S.E. 476; Clarke v. South Carolina Public Service Authority et al., 177 S.C. 427, 181 S.E. 481; Stovall et al. v. Sawyer, Chief Highway Commissioner, et al., 181 S.C. 379, 187 S.E. 821; Fisher, Adm'x, v. Sheridan Co., 182 S.C. 316, 189 S.E. 356, 108 A.L.R. 981, filed December 30, 1936.

As was said by our court in State ex rel. Port Royal Mining Co. v Hagood, supra: "It is undoubtedly true that legislative power cannot be delegated; but it is not always easy to say what is and what is...