State v. Zeno

• Decision Date: 05 February 1900
• Docket Number: 11,812 - (21)
• Citation: 81 N.W. 748,79 Minn. 80
• Parties: STATE v. GEORGE ZENO
• Court: Minnesota Supreme Court

81 N.W. 748

79 Minn. 80

STATE v. GEORGE ZENO

Nos. 11,812 - (21)

Supreme Court of Minnesota

February 5, 1900

Defendant was convicted in the municipal court of Minneapolis for violation of Laws 1897, c. 186, being "An act to regulate the practice of barbering," etc.; and appealed from an order, Holt, J., denying a motion for a new trial. Affirmed.

SYLLABUS

Occupation of Barber -- Regulation by State.

It is competent for the legislature of this state, in the interests of the public health and welfare, to enact laws for the purpose of regulating and throwing restrictions around the occupation or calling of barbers.

Certificate -- Laws 1897, c. 186, Constitutional.

Laws 1897, c. 186, in so far as it prohibits any person from following the occupation of a barber in this state without first obtaining a certificate of registration as therein required, is valid, and not in violation of the constitution.

Albert H. Hall and C. J. Cahaley, for appellant.

The act is vicious in the extreme, since its evident purpose is the legalizing of a trade union or trust; and its offensive paternalism is in contravention of constitutional limitations. Matter of Jacobs, 98 N.Y. 98, 115. The act cannot be justified as an exercise of police power. Austin v. Murray, 16 Pick. 121; Inhabitants v Mayo, 109 Mass. 315; Slaughter Houe Cases, 16 Wall. 36; Coe v. Schultz, 47 Barb. 64; Matter of Jacobs, supra; State v. Donaldson, 41 Minn. 74, 82. It is unconstitutional, since it deprives defendant of life, liberty, and property, without due process of law. People v. Girard, 73 Hun, 457; People v. Marx, 99 N.Y. 377; Butchers Union S.H. & L. S.L. Co. v. Crescent City L.S.L. & S.H. Co., 111 U.S. 746; Live Stock Assn. v. Crescent City Co., 1 Abb. (U.S.) 388, 398; Matter of Jacobs, supra; Wynehamer v. People, 13 N.Y. 378, 398; People v. Otis, 90 N.Y. 48. It is unjust and unreasonable, since it discriminates between persons of the same class. The act has legislated defendant out of his right to be a barber, since he cannot qualify under the act, and the board of examiners are powerless to issue him a certificate.

Frank Healy and H. D. Dickinson, for respondent.

The occupation of a barber is properly a subject of police regulation. The exercise of this calling concerns the public health and safety. Munn v. Illinois, 94 U.S. 113. The act is on a line with laws relating to the practice of medicine and dentistry. Dent v. West Virginia, 129 U.S. 114; Singer v. State, 72 Md. 464; State v. Call, 121 N.C. 643; France v. State, 57 Oh. St. 1; State v. State Med. Exam. Board, 32 Minn. 324; State v. State Board Med. Exam., 34 Minn. 387; State v. Fleischer, 41 Minn. 69; People v. Phippin, 70 Mich. 6; State v. Carey, 4 Wash. 424. It does not interfere with the right to labor more than do those laws which regulate plumbers. Yet such are held constitutional. State v. Gardner, 58 Oh. St. 599; People v. Warden, 144 N.Y. 529. Laws prohibiting barber shops being kept open on Sunday are held valid on sanitary grounds. State v. Petit, 74 Minn. 376; People v. Havnor, 149 N.Y. 195; People v. Bellet, 99 Mich. 151.

The constitutional provision against class legislation does not relate to legislation which, in carrying out a public purpose, is limited in its operation. Barbier v. Connolly, 113 U.S. 27; Soon Hing v. Crowley, 113 U.S. 703; Powell v. Pennsylvania, 127 U.S. 678; Cotting v. Kansas City Stock-Yards Co., 79 F. 679; Johnson v. St. Paul & D.R. Co., 43 Minn. 222; State v. Sheriff Ramsey Co., 48 Minn. 236; State v. Chapel, 64 Minn. 130; Lommen v. Minneapolis G.L. Co., 65 Minn. 196. Defendant has not been legislated out of his right to be a barber. The courts will not put so harsh a construction upon the intention of the legislature, unless such construction is unavoidable. Every presumption favors the validity of the law. All doubts must be resolved in favor of its constitutionality. Sykes v. Mayor, 55 Miss. 115, 143; Com. v. Butler, 99 Pa. St. 535; Wilkins v. State, 113 Ind. 514; Central v. Board, 67 Iowa 199; State v. Moore, 104 N.C. 714; Fletcher v. Peck, 6 Cranch, 87, 128.

OPINION

BROWN, J.

Defendant was convicted in the municipal court of the city of Minneapolis of a violation of Laws 1897, c. 186, and appeals from an order denying his motion for a new trial.

Defendant is a barber, and has followed that occupation since 1880, -- most of the time in this state. At the time of the violation of the law in question he was located and engaged in such calling at the city of Minneapolis. On April 1, 1899, he performed certain acts within his calling upon the persons of John Madden and Rudolph Scholl, without first having obtained a license as required by such law; and for this he was convicted, and sentenced to pay a fine. There is no controversy about the facts. Defendant violated the law by continuing in his occupation without a license, and was properly convicted, unless it be held that the law is unconstitutional and void. The sections of the law applicable to this case are as follows:

"Section 1. It shall be unlawful for any person to follow the occupation of barber in this state unless he shall have first obtained a certificate of registration as provided in this act; provided, however, that nothing in this act contained shall apply to or affect any person who is now actually engaged in such occupation, except as hereinafter provided."

Sections 2, et seq., provide for a board of examiners, and prescribe their duties. Section 7 provides that persons engaged in the occupation of barbers in this state at the time of the approval of the act shall be entitled to license certificates upon the payment of a fee of one dollar, and filing with the secretary of the board an affidavit of residence, etc.

"Sec. 8. Any person desiring to obtain a certificate of registration under this act shall make application to said board therefor and shall pay to the treasurer of said board an examination fee of five dollars, and shall present himself at the next regular meeting of the board for the examination of applicants, whereupon said board shall proceed to examine such person, and being satisfied that he is above the age of nineteen (19) years, of good moral character, free from contagious or infectious diseases, has either (a) studied the trade for three (3) years as an apprentice under a qualified and practicing barber, or (b) studied the trade for at least three (3) years in a properly appointed and conducted barber school under the instructions of a competent barber, or (c) practiced the trade in another state for at least three (3) years, and is possessed of the requisite skill in said trade to properly perform all the duties thereof, including his ability in the preparation of the tools, shaving, hair-cutting and all the duties and services incident thereto, and is possessed of sufficient knowledge concerning the common diseases of the face and skin to avoid the aggravation and spreading thereof in the practice of said trade; his name shall be entered by the board in the register hereafter provided for, and a certificate of registration shall be issued to him. * * *

"Sec. 14. Any person practicing the occupation of barber without having obtained a certificate of registration, as provided by this act, * * * is guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine," etc.

The question as to the constitutionality of this statute is the only one involved in the case. Counsel for defendant assail the statute from all directions, and urge its invalidity on several grounds, but we need consider the points made by them only so far as they are pertinent to the statute as applied to this particular case. We will not stop to inquire whether it would be within the power of the legislature to limit the number of apprentices a barber should be permitted to have at one and the same time. Such question has no bearing upon the one now before us. It will be time enough to consider and determine it when it is presented in some case where that particular violation is complained of. The question in this case is, is it competent for the legislature to prohibit persons from practicing the calling of a barber without first obtaining a license or certificate of registration?

Laws enacted for the purpose of regulating or throwing restrictions around a trade, calling, or occupation, in the interests of the...