State v. Woodall

• Decision Date: 09 June 1932
• Docket Number: 6 Div. 77.
• Citation: 225 Ala. 178,142 So. 838
• Parties: STATE EX REL. DALLY v. WOODALL ET AL.
• Court: Alabama Supreme Court

142 So. 838

225 Ala. 178

STATE EX REL. DALLY v. WOODALL ET AL.

6 Div. 77.

Supreme Court of Alabama

June 9, 1932

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Petition of the State, on the relation of G. G. Dally for quo warranto to O. R. Woodall, A. C. Blankenship, and Emma Smith.

From a judgment for respondents, relator appeals.

Affirmed.

Wm. B McCollough, of Birmingham, for appellant.

John C Morrow, of Birmingham, for appellees.

THOMAS J.

The petition was statutory quo warranto directed against the members of the board of cosmetological examiners of Jefferson county, under section 9932 of the Code. State ex rel Knox v. Dillard, 196 Ala. 539, 72 So. 56; Berk v. State ex rel. Thompson (Ala. Sup.) 142 So. 832; Gen. Acts 1931, p. 653.

The decision upholding the Barber's Act (Gen. Acts 1931, p. 615) in Wages v. State (Ala. Sup.) 141 So. 707, under the police power of government, setting up governmental agencies (Berk v. State ex rel. Thompson, supra; Wright v. Aldridge, 219 Ala. 632, 123 So. 33; Lehmann v. State Board of Public Accountancy, 208 Ala. 185, authorities on page 189, 94 So. 94, 98; State ex rel. Miller v. Aldridge, 212 Ala. 660, 103 So. 835, 39 A. L. R. 1470; Williams v. Board of Dental Examiners of Ala., 222 Ala. 411, 133 So. 11), and sustaining the classification for barbers and barber colleges in Birmingham, disposes, adversely to appellant, of several of the questions now presented-as to whether the act was a local law under sections 106 and 110 of the Constitution as to requiring notice, and whether it violated section 45 of the Constitution.

When the entire act is considered under the rules that obtain ( May v. Head, 210 Ala. 112, 96 So. 869; State ex rel. City of Mobile v. Board of Revenue and Road Com'rs, 202 Ala. 303, 80 So. 368), the conclusion here reached is, as was declared in the Wages Case on the Barber Act (Gen. Acts 1931, p. 615), that the instant act is a general law within the meaning of section 110 of the Constitution, and that the subject of the act was clearly expressed in the title, and the act in no wise offends the provisions of section 45 of the Constitution.

It is next insisted that the act is a revenue bill and was not passed by the Legislature before "the last five days of the session," in disregard of section 70 of the Constitution.

The act in question was not within the class of "Bills for Raising Revenue" within the purview of section 70 of the Constitution. Such is the analogy to be found in the declarations of this court that: "A statute the purpose of which is to provide for the dispensing of liquors by municipalities, is not a bill for raising revenue. Dunbar v. Frazer, 78 Ala. 538; Sheppard v. Dowling, 127 Ala. 1, 28 So. 791 ; nor a statute to establish and carry on a dispensary. Sheppard v. Dowling, 127 Ala. 1, 28 So. 791 ; nor a statute regulating the granting of licenses to retail. Dunbar v. Frazer, 78 Ala. 538; or a statute providing for the maintenance, improvement, etc., of public roads. Kennamer v. State, 150 Ala. 74, 43 So. 482; or a statute imposing a license tax or registration fee on motor vehicles. Bozeman v. State, 7 Ala. App. 151, 61 So. 604." Section 70, Constitution, note "Not Bills for Raising Revenue" (see Code 1928, p. 30).

It is next insisted that the act was unconstitutional and void in that it conflicts with and violates the provisions of the Fourteenth Amendment to the Constitution of the United States. That is, it is the insistence that section 5 of the act clothes the board with absolute, arbitrary, and unlimited power to prescribe qualifications for admission to practice cosmetology, and thus offends the provisions of section 1 of the Fourteenth Amendment to the Federal Constitution.

The right to follow lawful employment of any ordinary and harmless calling, and that of entering the professions duly and reasonably regulated under the police power, are of constitutional guaranty that may not be abridged, and are property rights that may not be arbitrarily denied without due process of law, and as to which the equal protection of the law may not be denied or withheld. Replogle v. City of Little Rock, 166 Ark. 617, 267 S.W. 353, 36 A. L. R. 1333; Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 79, 66 So. 657; Franklin Social Club v. Town of Phil Campbell, 204 Ala. 259, 85 So. 527; Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822; Booth v. People of State of Illinois, 184 U.S. 425, 22 S.Ct. 425, 46 L.Ed. 623; Allgeyer v. State of Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; New York Life Ins. Co. v. Dodge, 246 U.S. 357, 38 S.Ct. 337, 62 L.Ed. 772, Ann. Cas. 1918E, 593; Adams v. Tanner, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973. Thus stated by Judge Cooley (Cooley on Torts, p. 277): "it is an important part of civil liberty to have the right to follow all lawful employment."

And by Mr. Tiedman: "No man's liberty is safe if the legislature can deny him the right to engage in a harmless calling." 1 Tiedman, State & Federal Control of Persons and Property, p. 236.

Mr. Justice Bradley in Butchers' Union Slaughter-House & L. S. L. Co. v. Crescent City Live-Stock L. & S. H. Co., 111 U.S. 746, 4 S.Ct. 652, 657, 28 L.Ed. 585, says: "The right to follow any of the common occupations of life is an inalienable right. *** The right to follow any of the ordinary callings of life-is one of the privileges of a citizen of the United States."

And in Replogle v. City of Little Rock, 166 Ark. 617, 267 S.W. 353, 354, 36 A. L. R. 1333, 1336, Mr. Justice Wood made the following just observation: "When statutes, and municipal ordinances pursuant thereto, have been enacted purporting to protect the health and welfare of a community, all doubts as to the constitutionality of such legislation must be resolved in its favor. Such deference and consideration must be given by the courts to the Legislature-a co-ordinate department of the government-as not to unduly interfere with its supreme legislative power, and never to interfere with such power, unless it appears that the exercise is clearly outside the scope of the organic law, which is over all departments of the government, and which all are bound to observe as fundamental in the protection of the liberty, happiness, and general welfare of the community. Williams v. State, 85 Ark. 470, 26 L. R. A. (N. S.) 482, 122 Am. St. Rep. 47, 108 S.W. 838; Dreyfus v. Boone, 88 Ark. 358, 114 S.W. 718; Pierce Oil Corp. v. Hope, 127 Ark. 38, 191 S.W. 405, Ann. Cas. 1918E, 143; Bacon v. Walker, 204 U.S. 311, 51 L.Ed. 499, 27 S.Ct. 289. But when such enactments are challenged as an invasion of the rights and liberties of the individual guaranteed by the fundamental law, then it becomes the duty of the courts to lay these enactments alongside the Constitution, and determine whether the exercise of the police power in the suppression or regulation of ordinary occupations, trades, or callings is really necessary for the public good."

We are thus remitted to the question long declared, in this and other jurisdictions, that an act or ordinance must prescribe a uniform rule of action under delegated power, and not reserve the right to arbitrarily grant or withhold a privilege-a question presented in the line of our decisions from City Council of Montgomery v. West, 149 Ala. 311, 42 So. 1000, to Gillette, Bldg. Inspector, v. Tyson, 219 Ala. 511, 122 So. 830; White v. Luquire Funeral Home, 221 Ala. 440, 129 So. 84.

It may be well to observe that the discretions given such boards, as those set up or provided by the act as to the granting and revocation of licenses, must conform to that line of well-recognized state and federal authorities. City Council of Montgomery v. West, supra; Cooke, Clerk, v. Loper, 151 Ala. 546, 44 So. 78; Birmingham R., L. & P. Co. v. Kyser,

203 Ala. 121, 125, 82 So. 151; Lehmann v. State Board of Public Accountancy, 208 Ala. 185, 187, and 190 for authorities, 94 So. 94, 96, 99; Yick Wo v. Hopkins, Sheriff, etc., 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Butchers' Union Slaughter-House & L. S. L. Co. v. Crescent City Live-Stock L. & S. H. Co., 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed. 585; Dobbins v. City of Los Angeles, 195 U.S. 223, 25 S.Ct. 18, 49 L.Ed. 169; Arver v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L. R. A. 1918C, 361, Ann. Cas. 1918B, 856.

Constitutional inhibitions as to state statutes unduly limiting and regulating private businesses are the subject of frequent discussions in the courts. Fox v. State of Washington, 236 U.S. 273, 35 S.Ct. 383, 69 L.Ed. 573; Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 29 S.Ct. 220, 53 L.Ed. 417; Miller v. Strahl, 239 U.S 426, 36 S.Ct. 147, 60 L.Ed. 364; Omaechevarria v. Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763; Arizona Copper Co. v. Hammer, 250 U.S. 400, 39 S.Ct. 553, 63 L.Ed. 1058, 6 A. L. R. 1537. And discussions and definitions of the extent of...