State v. Wester

• Decision Date: 09 June 1925
• Docket Number: 19139.
• Parties: STATE v. WESTER.
• Court: Washington Supreme Court

236 P. 790

135 Wash. 32

STATE v. WESTER.

No. 19139.

Supreme Court of Washington

June 9, 1925

Department 1.

Appeal from Superior Court, Pierce County; Chapman, Judge.

Lucy Wester was convicted of practicing barbering without a license, and she appeals. Affirmed.

Browder Brown and J. W. A. Nichols, both of Tacoma, for appellant.

J. W Selden and Robt. B. Abel. both of Tacoma, for the State.

ASKREN, J.

The defendant was convicted of practicing barbering without a license, and, being sentenced by the trial court, has appealed.

Appellant's assignments of error raise the constitutionality of the statute and its construction. The law involved is contained in chapter 75, sections 2 and 9, Laws of 1923:

'Sec. 2. License Required. It shall be unlawful for any person to follow the occupation of barber or practice as a barber in any incorporated town in this state, unless he shall first have obtained a license as provided in this act. * * *

'Sec. 9. Licenses to Unlicensed Lawful Practitioners. Every person who shall have been continuously and lawfully engaged in practicing the occupation of barber in this state without license for six months prior to the date when this act shall take effect shall within six months thereafter, make application for license to the state treasurer, on forms furnished by the director of licenses, which said application, together with a fee of five dollars, to be paid by said applicant, shall be disposed of in the manner provided by law in the case of applications for examination for license. It shall be the duty of the secretary of the department of licenses, upon the receipt of such application, accompanied by the treasurer's duplicate receipt for the fee, to issue to said applicant a license which shall authorize the said applicant to practice the occupation of barber in the state of Washington until the first day of July, 1924, and thereafter said applicant shall pay an annual license renewal fee as provided in the case of persons licensed by examination under this act.' Appellant was, at the time charged, barbering in the city of Tacoma, and had, after the passage of the law of 1923 applied for a license without examination under section 9 of the act, upon the ground that she had been engaged in barbering in Tacoma for six months prior to the taking effect of the act. The previous law on this subject (section 8277, Rem. Comp. Stats.) did not require a license to practice in unincorporated, but did in incorporated cities and towns. This appellant did not have. It is her contention that, inasmuch as only those who practiced barbering in incorporated towns were required to have a license, to deprive her of a license without examination is to punish her for a past offense, and it is therefore an ex post facto law. Appellant cites a number of authorities in support of this contention, but these authorities have expressly been held not to apply by this court in Fox v. Territory, 2 Wash. T. 297, 5 P. 603 upon the ground that such a provision as this refers to qualifications, and is not in any sense an attempt to punish for a past offense. We think it needs no argument to demonstrate the right of the Legislature to say that one who has been lawfully following a profession may be admitted without an examination, while those who have been violating the law shall be required to pass one. We have previously upheld statutes of like character. State ex rel. Smith v. Board of Dental Examiners, 31 Wash. 492, 72 P. 110; In re Christensen, 59 Wash. 314, 109 P. 1040; In re Harold, 59 Wash. 322, 109 P. 1043.

Appellant contends, also, that the words 'and lawfully' create a special privilege to persons practicing outside of incorporated towns, as against persons having practiced in cities. The same point was raised as to the previous law on this subject and decided adversely to appellant's contention in State v. Sharpless, 31 Wash. 191, 71 P. 737, 96 Am. St. Rep. 893.

Appellant also argues that the law is unconstitutional because section 5 of the act permits examination as to matters which in no wise affect the public health. Section 5 is as follows:

'Sec. 5. Examinations. Examinations shall be held at least four times in each year,

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