256 N.W. 121 | S.D. | 1934
Chapter 61, Laws South Dakota 1927, is commonly known as the Barber Act, and is entitled as follows: "An Act Entitled, An Act Regulating the Practice of Barbering, Defining Such Practice, Providing for a Board of Examiners and the Issuance of Certificates to Practice Barbering, and Providing Penalties for Violation."
Plaintiff resides in Deadwood in Lawrence county in this state, where for twenty-six years last past he has been engaged in the occupation of a barber, and where he continues to own, operate, and conduct a barber shop. When chapter 61, Laws 1927, went into effect plaintiff complied with all the requirements of the act and of the barber board and paid all fees ($12) to entitle him to receive, and he did receive, a certificate as a registered barber pursuant to the provisions of the act.
Sections 14 and 17 of the original Barber Act (subsequently slightly modified by chapter 209, Laws 1931, in a fashion in no manner material to the decision of this case) are, respectively, as follows:
"Renewal and Restoration of Certificates. Every registered barber and every registered apprentice who continues in active practice or service, shall annually, on or before July 1, of each year, renew his certificate of registration and pay the required fee. Every certificate of registration which has not been renewed during the month of July in any year shall expire on the first day of August in that year. A registered barber or a registered apprentice whose certificate of registration has expired may have his certificate restored immediately, upon payment of the required restoration fee. Provided, however, that no certificate shall be renewed until the applicant shall have presented to the Board a certificate of health from a regularly licensed practicing physician, showing that such applicant is free from any infectious or contagious disease. Said certificate of health shall bear date of issue not more than ten days prior to date of application. * * *
"Fees. The fee to be paid by an applicant for an examination to determine his fitness to receive a certificate of registration to practice barbering is Ten Dollars ($10.00) and for issuance of the certificate Two Dollars ($2.00).
"The fee to be paid by an applicant for an examination to determine his fitness to receive a certificate of registration to *634 practice as an apprentice is Five Dollars ($5.00) and for the issuance of the certificate One Dollar ($1.00).
"The fee to be paid for the renewal of a certificate of registration to practice barbering is Five Dollars ($5.00) and for the restoration of an expired certificate is Seven Dollars ($7.00).
"The fee to be paid for the renewal of a certificate of registration to practice as an apprentice is Three Dollars ($3.00) and for the restoration of an expired certificate is Five Dollars ($5.00)."
Although plaintiff complied with the requirements of the statute at its inception and secured his certificate of registration, he did not, during or prior to the month of July, 1928, secure a renewal of such certificate, nor has he since done so, although he has at all times continued in his occupation of barbering.
After August 1, 1933, the board of barber examiners was insisting that plaintiff procure the renewal or restoration of his certificate if he continued to engage in the occupation of barbering and informed plaintiff (and others) that, if he continued in said occupation without procuring the restoration of such certificate, the board would cause proceedings to be instituted against him for unlawfully engaging in such business.
The barber board does not appear to be demanding that plaintiff, in order to secure a restoration of his certificate, retake the examination provided for in section 9 of chapter 61, Laws 1927, as amended by chapter 209, Laws 1931, but is demanding that plaintiff pay certain fees as a condition precedent to the restoration of his certificate. Whether the total fees demanded amount to $14 or $19 is not entirely clear upon the record before us, nor is it entirely clear as to just how or upon what theory the barber board proceeds in computing the amount demanded. Plaintiff, however, does not seek to raise those precise questions in this case, and we need not here determine whether the amount demanded by the board from this plaintiff is the proper amount to be exacted under the law for the renewal of certificate of a barber who, though once registered, has continued meantime to practice barbering in this state for a period of several years without certificate. We mention the matter only to point out that we do not mean to pass directly or indirectly by any language in this opinion upon *635 the question of whether the demanded fee is or is not correct in amount.
Plaintiff, as we have said, raises no question as to the amount of fee demanded. Neither does he claim that the board is requiring of him any fact showing that he is unable or unwilling to make with reference to his skill, experience, physical health, moral character, or otherwise. He refuses to procure the restoration of his certificate solely and entirely upon the broad ground that the whole Barber Act is unconstitutional, and that he is entitled as of right to engage in the occupation of barbering in this state without complying with the requirements of said act or any part thereof.
Under those circumstances, plaintiff refusing to comply with the act because he claimed it unconstitutional in toto and the board threatening to cause proceedings to be instituted against him for violation of the act, plaintiff commenced the present action asking that the state barber board and the state's attorney and sheriff of Lawrence county be permanently enjoined from enforcing the provisions of the Barber Act and from interfering with or arresting this plaintiff on account of his noncompliance therewith.
To plaintiff's complaint defendants demurred on the ground that it did not state facts sufficient to constitute a cause of action. This law issue coming on for disposition below, the learned trial judge, after hearing argument, duly made and entered an order overruling the demurrer, from which order the defendants have now appealed.
[1] While it is true as a general rule that the validity of a statute creating a criminal offense cannot be determined by enjoining the commencement of a prosecution thereunder, nevertheless appellants appear to concede in the instant case that upon the allegations of the complaint respondent is entitled to at least a portion of the injunctive relief sought if the Barber Act be held unconstitutional. Cf. Joseph Triner Co. v. Shanks [1921]
[2] In this, as in every other case involving the constitutionality of legislative action, all reasonable intendments must be indulged *636
in favor of the statute, which should be upheld unless its infringement of constitutional restrictions is so plain and palpable as to admit of no reasonable doubt. State ex rel Botkin v. Welsh (1933)
Respondent in his brief outlines his attack upon the statute in the following language:
"Respondent challenges the validity of the law on various grounds which are as follows:
"1. The act is invalid as it attempts to gain its legality as a measure authorized under the police power when in truth and in fact, it is not a measure entitled to be characterized as a police power law for its terms do not include any provisions necessary or needful for the proper protection of the health of the people of South Dakota.
"2. The act bears no such relation to the public health as will sustain it as a police or sanitary measure.
"3. The practice of barbering insofar as the public welfare and comfort outside of and beyond what is included in its claimed health and safety provisions, are so insignificant as not to lend color to any right claimed under the police power of the State as shown by the terms of the Act itself.
"4. That the Barber Board under the Laws is not needful or necessary as the State, County, City and Town Boards of Health have full jurisdiction over barbers and barber shops and the law is not necessary as a sanitary or health measure.
"5. That the Barber Act violates section eight (8) and section nine (9) of article Eleven (11) of the Constitution of the State of South Dakota in that it is provided that no tax shall be levied except in pursuance of a law which shall distinctly state the object of the same to which the tax only shall be applied and that the tax levied and collected for State purposes shall be paid into the State Treasury.
"6. That said act violates section Two (2) of article Eleven (11) of the Constitution of the State of South Dakota in this that said tax is in violation of the provision that a tax may be levied for a public purpose while the law on its face shows its purpose is a private one for the establishing of a barber commission and the payment of compensation to the members thereof and no necessary or needful service being performed for the public. *637
"7. The Law grants arbitrary and capricious power to the Board of Barber Examiners and is in no way needful to protect the public health.
"8 That said act violates section Two (2) of article Eleven (11) of the Constitution of The State of South Dakota, in that it exempts certain persons of the same calling, making the tax unequal and not uniform and therefore said act is class legislation and void.
"9. The act makes the Board of Barber Examiners judge, jury, prosecutor and from its decision no appeal is provided for and therefore its provisions violate sections one (1) and two (2) of article six (6) of the Constitution of the State of South Dakota and section 1 of article fourteen (14) of the Constitution of the United States of America.
"10. That the fee to be paid is a license tax and not a mere license and is levied by the State and collected not by the State but by the Barber Board and said Board is not required to account to any public official, but is merely required to report to the Governor. No limit is placed on the Board. The more barbers the more money for the Board to handle as its members please without limit.
"11. That section sixteen (16) of the Barber Act violates section one (1) and two (2) of article six (6) of the Bill of Rights of the Constitution of the State of South Dakota and section 1 of article Fourteen (14) of the Constitution of the United States of America in that it attempts to deprive citizens of South Dakota of life, liberty and property without due process of law."
[3] With reference to respondent's contentions numbered 5,, 6, 8, and 10, which attack the validity of the law if it be viewed as a tax measure, it needs only to be said that the Barber Act is not and does not purport to be a law for the raising of public revenue. As we had occasion to point out in State ex rel Botkin v. Welsh, supra, while border line cases may present difficulties, nevertheless the broad distinctions between an exercise of the police power and an exercise of the taxing power are very plain. That the statute before us is most inartistically drawn and that it is extremely difficult to reconcile many of its provisions in matters of detail and particularly matters of administration is undoubtedly true, as we have heretofore said in Curran v. Bowell (1928) *638
[4] That the business of barbering so directly affects the health and welfare of the public as to be subject to control and regulation under the police power appears universally to be held, so far as we have been able to discover, in every state where the question has been presented. See comprehensive annotation and collection of cases, 20 A.L.R. 1111. Indeed respondent himself concedes this to be true in the present case. In this connection, however, respondent urges an argument which may best be indicated by quoting from his brief as follows:
"This appeal is taken by appellants and the entire brief of appellants is devoted to whether or not the authority is vested in the legislature under its broad police power to pass such an act. *639 Respondent admits that the Legislature may pass such a law under its police power, providing, however, the law is necessary and needful for the public health, sanitation and welfare, but contends that the act must in itself be a health or sanitation or welfare law and must contain provisions within its enactments that clearly show it to be such a law. This barber act, respondent contends, does not meet this requirement and has for its purpose of creation of jobs for three barbers, unskilled in medicine, health regulations, sanitation or other required education to aid the public or the barbers. In other words, some of the barbers of South Dakota wanted a barber law. The legislature gave them what they wanted. The barbers pay the money. The Barber Board collects the money and the Barber Board spends the money. The Barber Board examines the barbers. The Barber Board tries the barbers and the Barber Board has full right and authority to act as judge, prosecutor, jury and witnesses. Nothing in the law that puts one cent in the State Treasury; no accounting is made. The Barber Board must make a report to the Governor. When the Barber Board shall work, the number of days, the miles and the mileage, etc., shall be determined by the sweet will of the same Barber Board. On the other hand, what does the Barber Board do for the barbers of the State? And what for the public? Surely they collect the fees and pay their own salaries, mileage, per diem, and arrest and convict other barbers if they refuse to pay the fee. It is idle to say the three ordinary Barber Board members are in a position to promote the health, sanitation or welfare of the people of this State. The only thing in the act that squints at a health regulation is the provision which reads as follows:
"`The board shall have authority to make reasonable rules and regulations for the provisions of this Act and prescribe sanitary requirements for barber shops and barber schools, subject to the approval of the State Board of Health, and any member of the Board or its agents or assistants shall have authority to enter upon and to inspect any barber shop or barber school at any time during business hours. A copy of the rules and regulations of the Board shall be furnished by the Board to the owner or manager of each barber shop and barber school, and such copy shall be posted in a conspicuous place in such barber shop or barber school.' Thus it will be seen that the State Board of Health, an institution long in *640 existence with full power to regulate, control and protect the sanitation and health of the public in and out of barber shops and barber schools, was in existence long before this Barber Board Act and the State, County, City and Town Boards of Health can far better regulate barber shops all over the State than can one high salaried and two per diem and mileage consuming barbers. With this statement of the position of respondent we contend that the South Dakota State Barber Act does not meet the requirements necessary to make it a valid police power enactment. If it is not then it must fall of its own weight."
[5] If it be once conceded that the business or occupation of barbering is a proper field for the exercise of the police power and that the classifications made by the Legislature are reasonable, then what the Legislature sees fit to do by way of regulation and control lies very largely in the legislative discretion so long as its requirements are not unreasonable or arbitrary. Cf. State ex rel Sharpe v. Smith (1931)
The views urged by respondent have neither the charm of novelty nor the claim to deferential consideration which might arise from previous judicial approval. An examination of the many cases cited in the note to which we have previously referred (20 A.L.R. 1111) will disclose that many states have enacted statutes similar in general scheme and structure to our own. Against these statutes these same arguments have been often advanced and as many times rejected by the courts. In addition to the cases found in the annotation, see, also, Banghart v. Walsh (1930)
[6, 7] The statute here involved contains a "saving clause" (section 23) similar to that considered in the case of State ex rel Botkin v. Welsh (1933)
The order appealed from is reversed.
All the Judges concur.