Timmons v. Morris

• Citation: 271 F. 721
• Decision Date: 14 February 1921
• Docket Number: 3001.
• Parties: TIMMONS v. MORRIS, Sheriff.
• Court: U.S. District Court — Western District of Washington

271 F. 721

TIMMONS v. MORRIS, Sheriff.

No. 3001.

United States District Court, W.D. Washington, Southern Division.

February 14, 1921

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

William D. Askren, Pros. Atty., of Tacoma, Wash., for respondent.

CUSHMAN District Judge.

Petitioner is imprisoned for practicing the trade of a barber without a license, and sues to obtain his discharge from such imprisonment by the present habeas corpus proceedings.

Petitioner avers he is a barber, and has practiced his trade for 17 years, and has no other means of livelihood, and by his amended petition he attacks the constitutionality of chapter 172 of the Session Laws of the state of Washington of 1901 entitled:

'An act to regulate the practice of barbering, and licensing persons to carry on such practice, and providing punishment for its violation.' The respondent orally demurs to amended petition. In two decisions the constitutionality of this law has been upheld by the Supreme Court of the state of Washington, viz.: 31 Wash. 191, 71 P. 737, 96 Am.St.Rep. 893; 48 Wash. 8, 92 P 775, 15 Ann.Cas. 257. Upon the authority of these decisions, relief must be denied for the petitioner upon this ground, and petitioner further avers:

'That the said board, acting under said statute and by authority thereof, have established a system of examination for applicants for license or certificate to practice barbering, under which system applicants are given credits, marks or points, graded from poor to excellent on the several subjects listed in said examination as follows, to wit:

Haircut, .............. Poor 10 Excellent 24

Shaving, .............. Poor 10 Excellent 24

Cleanliness, .......... Poor 0 Excellent 8

Razor honing, ......... Poor 6 Excellent 12

Condition of Tools, ... Poor 0 Excellent 8

Time, ................. Poor 4 Excellent 10

Deportment, ........... Poor 0 Excellent 6

Written examination, .. Poor 2 Excellent 8

---- ----

32 100

-- which examination petitioner was required to pass. * * *

'That after the examination taken by petitioner in November, 1919, the said board served the following notice upon petitioner, to wit: 'State Board of Barber Examiners of Washington. Tacoma, Washington, Nov. 20, 1919. Mr. Frank Timmons-- Dear Sir: You are hereby notified that you have failed to pass the examination prescribed by law for a certificate of registration as a barber in the state of Washington. Your credits on such examination were: Haircut, 14; shaving, 17; cleanliness, 6; razor honing, 10; condition of tools, 6; time, 10; deportment, 6; written examination, 7-- total, 76. Necessary to pass, 80. You are hereby notified because of your failure that you no longer hold a permit to work as a barber in the state of Washington. State Board of Barber Examiners, A. A. Ciersch, President. M. B. Bdigford, H. C. Pickering, Sec. Treas.' And after examination before said board in May, 1920, the board served upon petitioner a like notice, in which petitioner was given the following credits: Haircut, 10; shaving, 17; cleanliness, 7; razor honing, 10; condition of tools, 7; time, 10; deportment, 6; written examination, 6-- total, 73. Necessary to pass, 80.

'And petitioner shows to the court that, of all the said matters upon which said examination were had, two only of said items affect even remotely, if at all, the public morals, health, or safety, namely, the items of cleanliness and such matters of health as are embraced in said written examination, and that upon those two items, to wit, cleanliness and written examination petitioner was given each time 13 credits out of the 16 allowed for those two subjects, being more than the 80 per cent. required by the rules, notwithstanding which the said board marked petitioner down on the other seven subjects of the examination, in no manner affecting the public, so as to bring his average below the 80 per cent. and give excuse for refusing his license, and all in accord with and under the power and authority of the said statute so purporting to give to said board an autocratic right to grant or withhold at their pleasure and without any right of appeal.'

The effect of the foregoing is not only to aver the unconstitutionality of the statute, but the arbitrary exercise by the board of barber examiners created by it of the power conferred upon them under the act. Regulations and examinations of the board must be restricted within the limits of that having to do with health and safety; it cannot be and it has not been contended that the public morals are affected by such trade.

Under the system of marking established by the board it appears that the credits obtainable on the first two subjects, 'hair cutting' and 'shaving,' are 48 per cent. of the total, and that the range of markings for the two between 'poor' and 'excellent' is 28 per cent. of the total obtainable, and a loss of 20 per cent. of the total credits results in a denial of a license.

In view of the other matters considered upon such an examination, covering 'cleanliness,' 'razor honing,' 'condition of tools,' 'time,' 'deportment,' and 'written examination,' it is only reasonable to assume that the board, in considering the credits earned by the person examined on the first two matters, 'hair cutting' and 'shaving,' eliminates from consideration those matters covered by the other headings, which include 'cleanliness' and 'condition of tools.'

Eliminating all these other subjects from consideration, apparently there are only left to be included within the first two subjects 'hair cutting' and 'shaving,' matters at most, if at all, of only minor importance, in so far as health and safety are concerned, which show that the percentage allowed for those two subjects in this scale adopted is out of all proportion to the importance reasonably to be attached thereto, and compels the conclusion that the system which has been so adopted under the act is arbitrary and capricious, and justifies the presumption that the practice established in the present instance is the one foreseen and pointed out by Judge Rudkin in his dissenting opinion in the foregoing cases as bound to grow up under such a statute.

The preponderating effect given the percentages under the first two subjects, prima facie, upon this demurrer, justifies the conclusion that by the adoption of such a scale it was intended to leave it within the power of the board to arbitrarily refuse a license upon occasion. Such a result and practice is the deprivation of liberty without due process of law, and violates the Fourteenth Amendment to the Constitution.

The demurrer to the amended petition is overruled.

On Rehearing and Reargument.

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

J. W. Selden, Pros. Atty., and Rex. S. Roudebush, Asst. Pros. Atty., both of Tacoma, Wash., for respondent.

A former decision was rendered in the present case, in which the Barbers' License Law was upheld upon the authority of State v. Sharpless, 31 Wash. 191, 71 P. 737, 96 Am.St.Rep. 893, and State v. Walker, 48 Wash. 8, 92 P. 775, 15 Ann.Cas. 257. But it was further held by this court that the regulations adopted thereunder by the board of barber examiners, created by the act, were arbitrary and capricious, and in no way calculated to protect the health of the public. Upon the representation that respondent had not presented legal authorities upon the former hearing touching the police power of the state, a rehearing and reargument has been had. In ruling upon the present motion, an attempt will be made to avoid restatement of matters set out in the former memorandum decision.

The court is convinced that, in so far as the practice of barbering is concerned, the public welfare and comfort-- outside of, and beyond what is included in its health and safety-- are so insignificant as not to lend color to any right claimed under the police power of the state. The Barber Law was first upheld in State v. Sharpless, 31 Wash. 191, 71 P. 737, 96 Am.St.Rep. 893, by the Supreme Court of this state, on the ground that it was a health measure. It was therein stated:

'The right of the Legislature to enact laws for the promotion of health is now universally sustained as a police regulation.' 31 Wash. 195, 71 P. 738, 96 Am.Rep. 893.

'Other questions, going more to the wisdom of the act, are presented by appellant; but these questions are for the Legislature, and not for the court. For example, it is urged that the act is for the protection of the health of the people of the state; that the people outside of cities and incorporated towns are as much entitled to be treated by qualified and cleanly barbers as those people who live in incorporated cities and towns. * * * There may be some good reason why barbers in larger cities should be more careful and cleanly than barbers in smaller places. * * * ' 31 Wash. 200, 201, 71 P. 740, 96 Am.Rep. 893.

Thereafter the Supreme Court of this state, in State ex rel. Richey v. Smith, 42 Wash. 237, 84 P. 851, 5 L.R.A. (N.S.) 674, 114 Am.St.Rep. 114, 7 Ann.Cas. 577, in holding the act regulating plumbing in said state unconstitutional, after reviewing certain Washington state decisions, said:

'Some of the acts considered in the above cases were manifestly needful and proper for the protection of the public health; others were on the border

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