285 N.W. 77 | Minn. | 1939
The complaint is lengthy and need not be set out in extenso. The two sections challenged as unconstitutional are 3 Mason Minn. St. 1938 Supp. §§ 5846-2 and 5846-4 (L. 1927, c. 316, §§ 2 and 4), reading:
"5846-2. Any one or any combination of the following practices when done upon the head and neck for cosmetic purposes and not for the treatment of disease or physical or mental ailments and when done for payment either directly or indirectly or without payment for the public generally constitutes the practice of barbering within the meaning of this act; to shave, trim the beard, cut or bob the hair of any person of either sex for compensation or other reward, received by the person performing such service or any other person; to give facial and scalp massage or treatments with oils, creams, lotions or other preparations either by hand or mechanical appliances; to singe, shampoo the hair or apply hair tonics; or to apply cosmetic preparations, antiseptics, powders, oils, clays or lotions to scalp, face or neck."
"5846-4. The following persons are exempt from the provisions of this act while in the proper discharge of their professional duties: *86
"1. Persons authorized by the law of this state to practice medicine, surgery, osteopathy, chiropractic and massage;
"2. Commissioned medical or surgical officers of the United States Army, Navy, or Marine Hospital Service;
"3. Registered nurses;
"4. Persons practicing beauty culture.
"However, the provisions of this section shall not be construed to authorize any of the persons exempted to shave or trim the beard or cut the hair of any person for cosmetic purposes."
The complaint avers that the beauty culture act authorizes those licensed thereunder to do "slight hair trimming of women as a part of women's hairdressing," but that the above quoted sections, from the act regulating barbers, absolutely prohibit any one except a licensed barber to cut or bob hair. Because of such apparent conflict in the statutes relating to the two vocations there have been prosecutions and threats of prosecutions against licensed beauty culturists for cutting or trimming women's hair in dressing the same. This situation is the occasion for the suit.
The two sections are assailed as contravening Minn. Const. art.
It is undoubtedly true that the history of the legislation pertaining to the regulation of the barber trade reveals not only the legitimate purpose to promote public health, safety, and welfare but also the more questionable one of excluding the beauticians, so-called, from performing any of the work that can be brought within the definition of barber statutes. It must be accepted as settled law in this state that the trade or vocation of barbers as well as that of the beauty culturists has such relation to public health that in virtue of the police power of the state it may be regulated and those engaged therein licensed. State v. Zeno,
"Any person who engages in general public practice for compensation or other reward in any one or any combination of the following practices, to-wit: arranging, dressing, curling, waving, cleansing, singeing, bleaching, coloring, or similar work upon the hair of any living person by any means, or slight hair trimming of women, as a part of women's hairdressing; the use of cosmetic preparations, antiseptics, tonics, lotions, or creams, aided with the hands or mechanical or electrical apparatus, or appliances used in massaging, cleansing, stimulating, manipulating, exercising, beautifying, the scalp, face, neck, arms, bust or upper part of the body for the purposes of beautification, shall be defined as and construed to be practicing hairdressing and beauty culture."
So far as these two codes contain regulations looking to sanitary conditions for the protection of public health and the qualifications of those licensed in either vocation to practice the same safely and efficiently there seems to be no substantial differences. However, *88 by L. 1929, c. 270, the clause in parentheses in L. 1927, c. 316, § 2, was deleted. In this amendment no intention can be found to narrow or restrict the work of the beauty culturists licensed under L. 1927, c. 245, or to repeal by implication the provision therein [§ 2(a)] with respect to "slight hair trimming of women, as a part of women's hairdressing," for in L. 1933, c. 264, amending L. 1927, c. 245, the same language is retained (§ 5846-28). So, while the barber code forbids every person other than a licensed barber to trim or cut the hair of any person, the licensed beauty culturist code permits the one licensed thereunder to do slight hair trimming of women as part of women's hairdressing.
Both codes contain this provision: "If any portion of this act is declared unconstitutional by a court of competent jurisdiction, it shall not affect the validity of the remainder of the act which can be given effect without the invalid portion." (§§ 5846-25, 5846-41 1/2.) While this action seeks to have the entire two sections mentioned of the barber code decreed unconstitutional, the reply brief admits that only one provision thereof is of concern to licensed beauty culturists. And, in view of the severability sections referred to, we deem it proper to consider that provision alone. It is the last sentence of § 5846-4 that threatens prosecution of the licensed beautician in case of trimming or cutting women's hair. It reads:
"However, the provisions of this section shall not be construed to authorize any of the persons exempted to shave or trim the beard or cut the hair of any person for cosmetic purposes."
The preceding part of the section exempts from the provisions of the act certain persons "while in the proper discharge of their professional duties," and among the persons so exempted are: "4. Persons practicing beauty culture." It is obvious that the last sentence, if valid, makes it a crime for a licensed beauty culturist to cut or bob a woman's hair. There can be no doubt that cutting and dressing women's hair is as lawful an occupation as that of shaving and cutting men's beard and hair. Both Minn. Const. art.
That courts do not hesitate to declare unconstitutional a statutory provision which arbitrarily and without reasonable justification prohibits a person from pursuing a lawful calling is well established. The declaratory judgments act so provides. 3 Mason Minn. St. 1938 Supp. §§ 9455-11 and 9455-12; 16 Am.Jur., Declaratory Judgments, § 24. Plaintiff relies much on Banghart v. Walsh,
"The right to follow any of the common occupations of life is an inalienable right. (Allgeyer v. Louisiana,
We deem that the last sentence of § 5846-4, as applied to plaintiff, a duly qualified and licensed beauty culturist, and others similarly situated, contravenes Minn. Const. art.
As supporting the conclusion reached may be cited Keith v. State Barber Board,
Order reversed.
PETERSON, JUSTICE.
I dissent.
MR. CHIEF JUSTICE GALLAGHER, being engaged on the pardon board when this case was argued, took no part in the consideration or decision of the case.
MR. JUSTICE HILTON, incapacitated by illness, took no part.