Thorne v. Roush

• Decision Date: 18 December 1979
• Docket Number: No. 14608,14608
• Citation: Thorne v. Roush, 261 S.E.2d 72, 164 W.Va. 165 (W. Va. 1979)
• Parties: Roberta Sue THORNE, etc. v. E. B. ROUSH, Dir., Barbers and Beauticians et al.
• Court: West Virginia Supreme Court

Page 72

261 S.E.2d 72

164 W.Va. 165

Roberta Sue THORNE, etc. v. E. B. ROUSH, Dir., Barbers and Beauticians et al.

No. 14608.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1979.

Syllabus by the Court

1. In all legislative matters based upon the police power, regulations will only be valid if they bear some reasonable relationship to the public health, safety, morals or general welfare. The "junior barbering" apprenticeship mandated by W.Va.Code § 30-27-3, which contains no standard of performance to be met, nor test to be passed, and which appears on its face to do no more than provide a labor pool to be exploited by already licensed practitioners, serves no legitimate purpose and fails to contribute in any demonstrable way to the welfare of the public. Accomplishing no valid purpose, such a requirement serves only to restrain trade and curtail individual liberty, all in contravention of public policy based in the dictates of substantive due process and equal protection of the law required by W.Va. Const. art. 3, § 10.

2. The "junior barber" quota system, set forth in W.Va.Code § 30-27-7, having no rational relationship to any legitimate state purpose, must fall as constitutionally infirm under W.Va. Const. art. 3, § 10.

Jolyon W. McCamic, McCamic & McCamic, Wheeling, for petitioners.

Chauncey H. Browning, Atty. Gen., David R. Brisell, Asst. Atty. Gen., Charleston, for respondents.

McGRAW, Justice:

This case presents the single question of whether a mandatory apprenticeship imposed by W.Va.Code § 30-27-3 may constitutionally be required as a prerequisite to the lawful practice of barbering in this State.

The petitioner, Roberta Sue Thorne, is a 41-year-old resident of Wheeling, West Virginia. On May 5, 1979, Ms. Thorne graduated from Wheeling Barber College, a duly licensed and approved school of barbering. Following her graduation, Ms. Thorne successfully passed a competency examination administered by the State Board of Barbers and Beauticians and was licensed as a duly qualified "junior barber" on the 25th day of July. The only remaining obstacle standing between Ms. Thorne and her license as a "barber" is the fact that she has not served a twelve-month apprenticeship as required by W. Va.Code § 30-27-3. ¹ She has been unable to gain employment in that capacity.

Ms. Thorne argues that the requirement of a period of "junior barbering," essentially an apprenticeship, is unconstitutional because it denies her equal protection of the law, W.Va.Const. art. 3, § 10, and constitutes an abuse of the State's otherwise valid interest in policing the barbering trade. Based upon these contentions, she has filed this petition for a writ of mandamus to compel the defendant members of the West Virginia Board of Barbers and Beauticians to issue to herself and all other persons similarly situated a license as a fully qualified barber.

Initially, we note that the State has a valid interest in regulating the barbering profession as an incident to policing the health and welfare of the citizens of this State. Quesenberry v. Estep, 142 W.Va. 426, 95 S.E.2d 832 (1956); Ransone v. Craft, 161 Va. 332, 170 S.E. 610 (1933). See also, Mountaineer Disposal Service v. Dyer, 156 W.Va. 766, 197 S.E.2d 111 (1973); City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833 (1953). Indeed, this Court has held that the power of the Legislature to enact laws relating to the public welfare is "almost plenary" under W.Va.Const. art. 6, § 1, and that its powers are limited only by express restriction or restrictions necessarily implied by a provision or provisions of our Constitution. Robertson v. Hatcher, 148 W.Va. 239, 135 S.E.2d 675 (1964); State ex rel. County Court of Marion County v. Demus, 148 W.Va. 398, 135 S.E.2d 352 (1964).

However, in regulating a given occupation, as in all legislative matters based upon the police power. Regulations will only be valid if they bear some reasonable relationship to the public health, safety, morals or general welfare. State ex rel. Cobun v. Town of Star City, W.Va., 197 S.E.2d 102 (1973); Quesenberry Estep, supra; Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747 (1949); Bowman v. Virginia State Entomologists, 128 Va. 351, 105 S.E. 141, 12 A.L.R. 1121 (1920).

Inherent in the due process clause of the State Constitution ² are both the concept of substantive due process and the concept of equal protection of the laws. In order for a statute to withstand constitutional scrutiny under the substantive due process standard, it must appear that the means chosen by the Legislature to achieve a proper legislative purpose bear a rational relationship to that purpose and are not arbitrary or discriminatory. State ex rel. Harris v. Calendine, W.Va., 233 S.E.2d 318 (1977).

In the present case, the question is does the imposition of a required apprenticeship bear a rational relationship to some legitimate State concern. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); State v. Wender, 149 W.Va. 413, 141 S.E.2d 359 (1965).

In theory, it would seem that there is good reason for requiring a newly graduated barber to serve a practical apprenticeship. Indeed, the apprenticeship system for barbers is by no means unique to West Virginia. The record reveals that there are presently apprenticeship programs in forty-one states, and it seems to be a wide-spread belief that this system is of great value in insuring practical competency in barbering. ³

Yet, while a mandatory apprenticeship might very well be a rational legislative choice in the abstract, rationality is lost in the statutory scheme presently in effect in West Virginia.

Probably the most critical defect is the lack of any standard against which competence acquired as an apprentice may be measured. There is no examination, nor guideline by which the junior barber is to be evaluated during the apprenticeship. As it presently stands, there is no assurance that anyone who practices as a "junior barber" will gain any measure of competence at all.

The statute places no emphasis on the actual acquisition of practical competence. Instead, licensure is keyed to the new graduate's ability to acquire employment as a "junior barber." All that is required to satisfy the apprenticeship requirement is to find a position with a barber shop, and retain that position for twelve months. At the conclusion of the 12-month period, a license is issued to the apprentice without any further inquiry. The passage of time, rather than the acquisition of practical competence, satisfies the statute. The acquisition of experience is left to personal initiative in the individual case.

Our initial dismay over the seemingly pointless system mandated by W.Va.Code § 30-27-3, is reinforced by a closer look at the national statistics shown in the record. While it is true that forty-one states presently require apprenticeships, thirty-nine of those states require an examination following the experience, thus providing a mechanism to insure the acquisition of practical competence. Only two states provide for an unguided and standardless apprenticeship. West Virginia marches in lonely league with the great State of Alabama. After today, Alabama must march alone.

In short, while we have no quarrel with the concept of training by apprenticeship, we are convinced that the "junior barber" provision here at issue is not a reasonable and valid example of such training. An apprenticeship which contains no standard of performance to be met, nor test to be passed, and which appears on its face to do no more than provide a labor pool to be exploited by previously licensed practitioners, serves no legitimate purpose and fails to contribute in any demonstrable way to the welfare of the public. Accomplishing no valid purpose, such a requirement serves only to restrain trade and curtail individual liberty, all in contravention of public policy based in the dictates of substantive due process and equal protection of the law required by W.Va.Const. art. 3, § 10. State ex rel. Harris v. Calendine, supra.

A very similar statute was confronted by the Supreme Court of Delaware in the case of Hoff v. State, 39 Del. 134, 197 A. 75 (1938). In that case the court said at 197 A. 84:

Beauty culture is not one of the learned professions. It is a quite common occupation in many of its features. The manner and extent of its regulation ought not to be out of balance with a common sense regard for the protection of the public health. The act, considered as a whole, is unreasonable and oppressive. It far exceeds the necessity that may exist to protect the public against ignorance and unsanitary practices. The provisions which have been particularly considered have no substantial relation to the public health and safety . . . .

The statute enacted by the West Virginia Legislature seems, in many respects, to mirror the one which faced the Hoff court. Taken as a whole, the licensing procedure leaves one with the impression that it was designed more to restrain trade than to protect the public. If the apprenticeship is truly of educational value, it should be provided for in such a manner that it does not work hardship on "outsiders" who cannot get jobs with established barbers. Perhaps, the apprenticeship should even be provided for as a part of the academic package, along the lines of a...