State v. Tag
| Decision Date | 22 March 1905 |
| Parties | STATE v. TAG. |
| Court | Maryland Court of Appeals |
Appeal from Criminal Court of Baltimore City; Charles E. Phelps Judge.
John H Tag was indicted for a violation of Acts 1904, p. 393, c 226, for practicing the occupation of a barber without a certificate of qualification. Demurrer to the indictment sustained. Appeal by traverser dismissed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.
Edgar H. Gans, for appellant.
Thomas R. Clendinen, for the State.
The appellant, John H. Tag, was indicted in the criminal court of Baltimore City for a violation of the act of 1904, p. 393, c. 226. The indictment alleges in the first count that the traverser was unlawfully practicing the occupation of a barber, without first having received a certificate of qualification from the barbers' examiners of the state of Maryland; and, secondly, that, being so engaged in the said business, he continued, after the passage of the act mentioned, to pursue said occupation during the period of three months, without having filed an affidavit with the secretary of the board of barber examiners, setting forth his name, place of business, post-office address, etc., as required by said act, etc. The traverser demurred to this indictment, and to each count thereof, and his demurrers were sustained by the learned court below, upon the ground that, by section 13 of the act on which the indictment was based, the act does not in any way apply to or affect any person occupied or working as a barber at the time said act was passed.
Neither the constitutionality or the validity of the act is in any manner assailed, and the sole question involved is that which is so briefly and clearly expressed in the opinion of the learned judge who decided this case below, viz., do acts 1904, p. 393, c. 226, apply to or affect any person who was occupied or working as a barber in this state when the act was passed?
In the first place, let us see exactly what is the language relied on by the state to sustain this prosecution. The sections which the traverser is alleged to have violated are the sixth and eighth. The sixth provides that And the eighth is as follows "Every person now engaged in the business of a barber in this state shall, within three months after the passage of this act, file an affidavit with the secretary of said board, setting forth his name, place of business, post office address, the length of time he has been engaged in the business of a barber, and pay to the treasurer the sum of one dollar for the certificate provided for in this act." These sections, standing alone, present no difficulty, but it is the thirteenth section upon which the traverser relies to sustain his contention. It will be remembered that both counts of the indictment allege that at the time this act went into effect the traverser was engaged in the practice and occupation of a barber, and hence the demurrers admit this fact. Now the thirteenth section provides, after defining what shall be construed as practicing the occupation of a barber, about which there is no controversy here, that "this act shall not in any way apply to or affect any person who is now [that is, when the act was passed] occupied or working as a barber in this state." Certainly there could be nothing clearer, if this section stood alone, than that the traverser, who is conceded to have been working as a barber in this state when the law was passed, is by its express terms excluded from its operation and effect. It is perfectly apparent, therefore, that sections 6 and 8 are broad and general enough to include all persons engaged in the business of barbers in this state; but it is equally clear that by section 13 it is declared emphatically that "this act" shall not in any way apply to or affect them. Of course, it is our duty to read these two apparently antagonistic sections so as, if possible, to harmonize them. This is a rule of very general application, and we are therefore bound, if possible, to avoid a construction which will defeat or nullify any portion of the provisions of this act. Can we do this? In view of the language used, can we say there is no conflict, or if a conflict, that it is reconcilable? It seems to us that the most casual reading of the sections already indicated shows an irreconcilable conflict. It was contended with great force on the part of the appellant that the construction adopted by the court below substantially nullifies the whole law, and that therefore such a construction should not prevail; that the one vital object intended by the Legislature was to provide for the cleanliness and sanitary condition of all barber shops; and that this intention could not be carried out if the sanitary provisions of the act are not to be applied to all barbers alike. We entirely agree with the proposition that it is our duty, if possible, to so construe the law as to effectuate the intention of the Legislature; and we think, too, that it may be conceded that it was--it certainly ought to have been--its intention to require every barber in this state to conduct his business in a cleanly and sanitary manner. But it does not by any means...
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