24 A.2d 646 | Pa. Super. Ct. | 1941
Argued October 10, 1941.
Plaintiffs are barbers, and in this action in equity sought to enjoin the city from enforcing the provisions of its ordinance of June 27, 1935 as amended, regulating the conduct of barber shops in Philadelphia and imposing the payment of an annual inspection fee of five dollars on each shop. The ordinance is intended to supplement the Act of June 19, 1931, P.L. 589 as *93
amended,
The above act required the registration of every person engaged as a barber at the time of its passage, accompanied by an affidavit of a practicing physician that he was free from contagious and infectious disease. All others were required to present similar evidence of good health and to submit to an examination as to general qualifications as a prerequisite to receiving certificates of registration authorizing them to practice such occupation. Certificates of registration are subject to revocation for cause. The Department of Public Instruction in cooperation with the Department of Health was given the power to adopt reasonable rules prescribing sanitary requirements. The act provides for the inspection of barber shops by officers or duly authorized agents of the department. To practice as a barber while suffering from a contagious or infectious disease or knowingly to serve a person so diseased or to impart any infectious or contagious disease through carelessness or negligence in the practice of such occupation, was made a misdemeanor; all other violations of the act are punishable by fine on summary conviction. The sanitary provisions of the act are supplemented by rules of the department.
There are essential differences between the above act and the statutes construed in the two decisions relied upon by appellants, in neither of which was there any delegation of the police power of the state to the *94
municipality. Girard Tr. Co. v. Phila.,
There is no evidence in the legislation in question, however, of an intention to establish a state-wide system of regulation to be administered exclusively by the state. On the contrary the act, in § 7 of the amendment of June 5, 1937, P.L. 1689, authorizes the municipalities to adopt "appropriate ordinances, not inconsistent with the provisions of this act or the rules and regulations adopted thereunder, as may be deemed necessary to promote the public health and safety and regulate the conduct of barber shops. . . . . ." The ordinance for the most part is a restatement of the provisions of the statute and the rules of the department and is in no respect inconsistent with them. The virtue of a health regulation is in its enforcement. The act in permitting supplements by city ordinance admits the magnitude of the problem. This provision, in effect, invites municipalities to adopt ordinances meeting local needs and by inspections and otherwise to assist in seeing to it that every barber and shop conform to the standards of practice established by the state. The ordinance in question was "deemed necessary to promote the public health," in furtherance of the broad purposes of the act. It does not go beyond them. The city's judgment therefore that additional inspection is in the public interest must be respected and given effect. *95
The act of assembly requires the payment of a license fee but does not assess a registrant with the cost of state inspection. The fee exacted by the city for its inspection service is not a duplication of a charge for the same kind of service. The collection of a fee by the city to provide additional inspection is not inconsistent with the statute and is adapted to carry out the purpose. Cf. Com. v. Vigliotti,
The bill complains that the city has brought suits in assumpsit before magistrates to collect the inspection fee, and that other similar suits are threatened. The propriety of such action is ruled by Washington Bor. v. McGeorge,
Appellants' remaining contention relating to the alleged inconsistency between the act and the ordinance in their penal provisions was not raised in the court below and is not the subject of an assignment of error. Matters not raised nor considered below cannot be invoked on appeal even though they involve constitutional questions. Montgomery Co. B. Assn. v.Rinalducci,
Our conclusion in this case is not affected by the fact that inKellerman v. Philadelphia,
The decree is affirmed. *97