Revne v. Trade Commission

et al. TRADE COMMISSION REVNE v. (192 563.) April 5, P. 2d 1948.

No. 7061. Decided Law, fixing S., by legisla J. 16 C. Constitutional see. 137. Price See note, body, See, also, see A. L. R. 985. tive or administrative Am. Jur. 549. Giles, Gen., Atty.

Grover A. and A. Brennan and. John Ottoson, Attys. Gen., C. N. Asst. for appellants.

Stewart, Hanson, City, Cannon & of Salt Lake for re- spondents.

PRATT, Justice. Andrew Revné and the interpleaded barbers plaintiffs maintaining single chair barber on the outskirts of shops the business districts of their communities where respective many sought working of their clientele their services after hours; maintaining and where théir presumably expenses their little were not as much shops as the located in shop the center of the business district. Act,”

Pursuant to our Price “Barbers and Hour Chapter Laws of Utah defendant “Utah State Barber following Board” promulgated restrictions upon prices and hours of work for barber shops:

“Price Schedule” “Hair cut .$0.65 Shave .40 (children years) Hair cut under 14 .50 clip only (ladies only) Neck .25 Singe .65 Shampoo-plain .65 Shampoo-Oil Mange. 1.00 Shampoo-Fitch dandruff remover.75 Massage-Plain (head, neck) face & .65 Face steam .60 Tonic .25 Razor honed . .65

“No service than less .25 barber, open shops nor “Barber shall not be business shall operate apprentice permitted as a barber student Monday, p. after 6 before the hour of 8 o’clock a. m. nor o’clock m. on Friday Tuesday, Wednesday, Thursday, Saturday, except that shops may open Saturday days holidays remain on before until p. m., except further, specified 7 o’clock that customers at the time be serviced.” court, instituted action the lower Plaintiffs this before Judgment Act, Declaratory under the of our provisions have void. this barbers law declared unconstitutional and favor, The lower court and the defend- found plaintiff’s act, the de- ants Section 5 of the barbers appealed. Under fendant, Utah, Trade is the enforcement Commission agent. following the act to this extracts from are pertinent

discussion: * * * 1. “Section “(2) ‘Organized representative group’ any organi- and means composed duly collectively acting

zatzion licensed barbers for the fixing purpose negotiating agreements price and á scale of minimum closing days opening representing per and and and hours cent or any city county more of the licensed barbers within or the state Utah. 2. “Section Scale of Minimum Prices —How Fixed —Increase. prices agreed signed upon, “Whenever a scale of minimum have been by organized representative group, and submitted to the board and power approve agreement the board shall have such and shall de- city county by clare and establish within such or official order the prices any barbering usually minimum and all work or services performed shops. power in-barber The board shall have to and shall make and establish a differential minimum schedule in favor of colleges operating in accordance with barber law of not more than 70 per prices public cent of the minimum to the for similar services in shops. approving agreements barber Before such the board within thirty days by after such schedule is submitted shall determine inves- suggested tigation proposed prices whether such and scale of minimum shops and sufficient to is reasonable enable barber in such district to keeping purposes operate minimizing in in with this act and relieving danger public safety. to the health and “Any desiring person to intervene in such determination shall file writing application days in within verified ten after such schedule prices proposed setting minimum submitted to the board out grounds fully person such claims to be interested. Upon filing application public such board shall cause to be held hearing applicant repre- present at which the shall be entitled purpose proper in sented the manner it shall deem fit and for the investigating hearing grounds. and such determining prices “In minimum take reasonable the board shall necessary particular city into consideration the costs incurred in the county maintaining shops clean, healthful, and sanitary barber in a and wages condition and also the and are cus- commissions which tomarily paid employees shops in such and barber shall take into affecting pro- consideration other facts and conditions the barber public safety relation fession its to the If and health. the board investigation public hearing shall find after or a prices provide fixed in adequate such districts are insufficient ser- protecting safety vice for health and such minimum may be from increased time to time. “Section 3. Power to Fix Hours Service. power approve “The board shall have and official order to days shops may open establish when hours remain agreements fixing opening closing days business whenever such signed by any organ- and hours have been and submitted to board representative group ized and the board shall like have public hearings investigate

to conduct and to the reasonableness and propriety agreement of the hours fixed such as is conferred under 2 of this act. section “Section 4. Board Orders Filed with Trade Commission—In Force Year. One charged approving schedules of to be of the board “All orders fixing opening agreements hours for barber services provided be filed with the days as herein shall for barber period in force and effect for a remain and shall trade commission approval of such order and shall be year the date after of one date, anniversary rescinded, annually upon unless modi- renewed approved promulgated by agreement fied, replaced a new procedure pro- being signed under the and submitted after board act. 3 of this 2 and vided sections ination of Barbers. as require barber * * * “Section “The are necessary in Utah and enforce trade commission ” See 8. General also, to be Chapt. 29, administering made Powers ^[*****] annual hereby of Trade physical Laws of legally and vested with such examination of Commission— Utah enforcing qualified 1945. medical this act and shall Physical Exam- general powers every physician, licensed

159 9 10 for violations of Sections and provide penalties charges, act which misdemeanor and deprivation include 12 of the Act that of license to Section practice. provides invalidity any declaration of shall part license affect other the annual provides Section parts. required, re- it shall and license fee and provides quired city county in which minimum price districts agreements agreements day and and hours opening act, under the and with shall such operative expire agreement. finding being court,

The lower after the act was order, against by a and enforced Andrew Revne cease desist findings of fact and as conclusions of law: included these as findings (From fact.) mentioned, interpreted “6. That the statutes hereinbefore as and as applied aforesaid, attempted so and defendants or as enforced said enforced, provi-

to be are invalid and unconstitutional and violate the 11, I, 2, 7, 24, 25, V, 1, 26, 27, sions of Article Sections Article Sec- VI, 1, 26, therof, tion and Article Section and subsection 16 and XII, Utah, Article 20 of the Constitution of the Section State and provisions of the Constitution of the United States of America known V and XIV. as Amendments provisions designated “7. That the of said statute as the ‘Barbers requiring p. and Hour Act’ barber to close at 6 O’clock m. Price days, requiring charge on secular barbers to the minimum service, forth, proper hereinbefore set is not valid or exercise, police powers unlawful and is an extension of the of this regulation barbering profession, regula- State said general no tions bear reasonable relation to the health and regulations promulgated welfare and such therein are statutes therefore invalid.” (From law.) the conclusions of provisions Chapter 16, 1945, “1. That the Session Laws Utah 5, 11, particularly 2, 3, 4, 6, 7, 10, 13, thereof, Sections being designated Act, Act also as the Price said Barbers and Hour provisions and unconstitutional and violate the are invalid of Article 24, 25, 27, V,

I, 2, 7,11, VI, Article Section Sections Article thereof, XII, 1 and subsection 16 Sections and Article Section Utah, provisions of the Constitution of the State of United of America known Constitution States as Amendments V 160 restraining plaintiffs an order and XIV. That entitled enforcing provi- from

the defendant Trade Commission Utah sions of said statute.” grounds Included within the the lower court adopted adjudication unconstitutionality, basis for its delegation legislative authority. that If unlawful little no that is a correct view of the act there is need further discussion of the matter. litigants

Counsel for the have cited the authorities pro issue, con- and con that some of each of which we shall upon sider, at to arrive our views of the matter. act, constitutionality

In of such an the de support cites, among others, pilowing fense the f cases: Herrin v. 1471; Arnold, 392, 977, P. 2d 119 A. L. R. 183 Okl. 57, Examiners, 45 Arnold Board Barber N. M. 109 P. v. 2d 779.

Qn rely the other such cases as plaintiffs upon hand 844; Forge al., v. Ellis et 175 Or. 154 P. 2d La Hollingsworth Examiners, Ind. Board v. State unconstitutionality their N. E. 2d belief light viewed in the of a power. act for discussion as the We have selected above cases questions therein involved were almost identical with those The the two groups, case. distinction between present wording believe, of the act in- we lies in the difference It in each case. that distinction which accounts for volved reached. results opposite quote (b) (c) The Herrin case: paragraphs We to the the Oklahoma Statute barber’s pertaining price state, 59 Okl. Ann. 102.: Sec. St. § Board, making “(b) investigation, fix, after such shall usually performed order, the minimum for all work official shop. a barber Board, investigation “(c) upon That if the after either made complaint representative group own initiative o/¡ barbers, the minimum determines so fixed are insufficient provide properly keep healthful services to the sanitary, authority vary then the Board from time time shall have the, or re city for a barber’s work in. each' or town fix ours.) affected (Italics this act.” Particular “fix,” attention is invited to the italicized words vary refix,” “to or and “either its own initiative or upon barbers,” upon of a complaint representative of group as these are the expressions foundation for the court’s effect, that opinion the act not is unconstitutional. In filing agreement decision holds that of a of merely way initiating of the barbers is a convenient 75% act, may board’s but that the board act its upon initiative, may fix such as it deems prices reason- own able under the In other circumstances. words the board’s power is merely one or It approval disapproval. has duty ascertaining responsibility facts itself. The Arnold case: The New Mexico law like the is Okla- homa law. The board is not limited to action upon petition It barbers. its own initiative. upon 75% (b) ques- of both Paragraph laws is the same. Here too the tion of an unlawful power is dis- cussed, citing the court the Herrin approving case of Oklahoma and similar cases. discussing

Before let cases us consider the plaintiff’s wording Throughout (quoted) of the Utah Act. the sections it tois be noted that the board’s are powers limited to ap- agreements, and, inferentially least, proval at disapproval. provision authorizing We have no the board to fix prices, hours, nor own initiative and no authoriz- provision ing “vary investigation. it to or refix” prices hours after increasing existing It limited to if the then are insufficient for the of the act. It purposes is noted (section quoted) schedules prices and hours final, year year that become and active from are those “agree- included in the board’s “order” of “approval” ments,” they rescinded, remain until modified, the law agreement by a “new replaced approved and promulgated” by The effectually the board. board’s hands are bound to agreements initiated of the barbers of the ter- 70% ritorial unit involved. citations:

Now as to plaintiff’s The : 847] 154 P. 2d Forge Or. La case [175 statute, far as so Oregon Utah like this statute is has court is what and this concerned board say: possible, reasonably should, if urged, however, that the act “It is rather it constitutional given render which would a construction construction, that, unconstitutional, under a reasonable than authority granted fix schedules board is means prices regard contained to schedules without on its own initiative county. seventy per of a the barbers agreements cent of made question would different admissible construction Were this an suggested give mean- but, the statute presented, in our only it, after it. For it ing but to rewrite be to construe would not signed ‘agreed upon, prices’ and submitted has been of minimum ‘scale seventy per licensed cent of the examiners’ board of barber to the county to act at all. The authorized that the board is barbers ‘approve consideration, then, investigation such after board * * * prices.’ the minimum agreements’ and establish and ‘declare granted agreement approve author- an it is fail to if it should But might prices find to be ity which it scale of a different' to establish ceases, authority and, and unless There its and sufficient.’ ‘reasonable county seventy per of the submit of the licensed barbers cent until prices containing agreement which the a of minimum scale sufficient,’ another price ser- of barbers’ and finds to be ‘reasonable board charge price every unregulated barber is free to and vices remains or otherwise. it and sufficient’ whether be ‘reasonable he chooses from becomes the more evident this construction correctness of “The provides that all of the board orders an examination of which § period price a of approving remain in effect for one schedules shall approval order, year of such ‘and shall be after the date anniversary rescinded, annually upon modified date unless renewed promulgated by agreement, approved replaced a new or board, procedure provided being signed under the and submitted after added.) seventy (Italics Thus, per it is cent S this act.’ in section of board, county, not the which determines barbers of the licensed price shall effective for more than a schedule continue or not whether had, though year, and, schedule effect to a even one due conditions, insufficient, change become unreasonable and and the powerless terminate, find, suspend would be so it should board seventy per registered schedule, modify cent of barbers keep prices by simply county refraining those in effect could in the anything. doing from 163 attempted delegation authority in the “The of here differs from that supra, Arnold, of statute Oklahoma sustained Herrin v. statute Mexico sustained in Arnold Board Barber New v. Ex aminers, supra. (183 In the former case 82 P. 983 Okl. 2d [119 1471]) A. L. R. with or court said that hoard without ‘the agreement’ (46 the submission of an and in the M. 109 latter N. granted 787), ‘authority vary P. 2d that the board was or refix” “to act, price.’ Oregon from time to time the Under preponderant majority board must either take is offered ‘a what group’ nothing.” or do Hollingsworth gives The case: The Indiana law the board too, among approval but has some added power, features which is that if the specifically providing disapproval insufficient, However, or excessive. it has no authority to establish founded its own initiative. upon activating The of barbers in this state is percentage 80%. reasoning Oregon Upon basis similar to Court, the Court of Indiana declared Supreme sec- Supreme 4 unlawful tions of the act unconstitutional as an delegation legislative authority. of that Sections equivalent 3, quoted act are the our act. of sections recognize, course, legislature may We that the properly delegate body duty of ascertain some administrative ing the facts of a law are to provisions function, also, initi one methods of ating activity body on of that administrative part of the citizens concerned. petition Such is not in and of itself defective as procedure improper delegation legislative authority. question of an im legislative authority lies embedded in proper granted body. the extent of the to the administrative give way must If the interests of those of a class, the effect is that simply class to permit particular body will the administrative and the upon its impose public, to the not. public be results beneficial safety a health was enacted as This law measure in govern of the interest the interest should public, functioning. However, in the procedure provided its its given interest is second to the public activation place directly majority af- interests of a of the profession 70% If that such fected the law. we could properly presume only act interest and would would the public 70% argu- might there when that interest necessitated action be that no it can said ment for law. No doubt upholding occur, harm to the can as the board stands between public grant but, the law was not passed that public, 70% injured. long certain so as the was not class benefits public safety The law was health passed public protect authorizing of certain and hours establishment interest, yet way, no on behalf there is public majority security if to initiate such the specified public, refuse, reasons, act. No other barbers selfish is of citizens initiate the schedules. board group given own initiative. not to act for the public subjected the interests of a interest public Thus antagonistic very interest. who to that public group They cannot do the interest harm action— they would do not stop board that —but presumably give either, any aid, they may as remain inactive. have to which defeats its the law creates a static situation Thus own Price schedules opening purpose. under the law when properly promulgated

hours become of the Act. One in that step promulgation the provisions agreement If, then, ques- barbers. 70% given locality or not a shall have such tion as to whether or, modified, already if or rescinded law promulgated existence, it is hard to is left to the whim this group, legislative authority conclusion that has been escape delegated or surrendered to that class. This is improperly where the law is in existence and is submitted not a case voters, a to whether not it as group, the local political locality. circumstances, in that Under such accepted shall be facts, they the local vote could well be accepted if were interest, not the vote but so as in local public 70% locality, an economic group, barbers initiatory creation of such a local law. to the protective step confined the public this act is properly We believe justifying interest. at Prices and hours established a time yoke may subsequently them the neck of become around majority if the the of a choose to refrain from class action. 4,

Sections 3 and of the act unconstitutional legislative authority. improper judgment the lower court is affirmed the given. reasons

WADE, J., concurs.

LATIMER, (concurring). Justice However,

I concur in I the results. desire elaborate fully controlling more on two I believe are principles action. The one is Mr. present first discussed right PRATT Justice in his involves the delegate to an administrative agency. The one second of whether involves principle not the act can be held constitutional under the broad both, of the state. elected police powers have to discuss although holding on former decisive of case. fatally

While I believe record is deficient in certain matters, view factual of the fact that have parties necessary assumed existence facts matter have this court, record, determined this I shall treat so as the question to important be determined is not it is procedural; constitutionality of the act. discussing There is no reason for whether or against offends the due clause-of process the United States against Constitution for the reason that if offends Article state, judgment Section of the constitution of this the trial court must affirmed. setting controlling

Before out some of the provisions act, I call desire to first attention to the three separate agencies directly in the overall participate operation agency enforcement of the act. The first with which need deal Trade Commission we of Utah. Under (5), question under the act in Subsection Section 5 of Utah, 16A-2-13, this Section Laws Chapter charged body enforcement with and is supervision consisting Board, agency act. next the State Barber The is governor. by the the While of members three appointed rules, required all and enforce Trade Commission is to adopt carry regulations necessary out to the provisions and orders to act, with power the Board is vested State Barber is to such discretion as make and exercise such decisions designated agency by the The is the act. last permitted “organized in which is defined and group” representative the act follows: Utah, 1, Laws 1945: Section of

Chapter “* * * group’ any (2) ‘Organized representative means collectively acting organization duly composed of licensed barbers fixing price agree- purpose negotiating and of minimum the a scale days representing per opening ments and and hours county city cent or more of the barbers within or licensed state Utah.” rules

In order to the manner which the appreciate regulations binding barbers, are so as to be on all adopted, necessary the Whenever is detail be taken. steps agree city county within of the licensed barbers or 70% agree days or the a scale minimum prices upon agreement or the remain open, 'hours when shops organized by the is executed or representative group With- submitted to State Barber Board approval. agreement submitted, days in 30 after is Board investigation required determine whether suggested scale of minimum and the prices proposed days hours of work reasonable and are such as to with operate enable the barber keeping days the act. after Within submission purposes days or schedule of schedule of proposed work, any may intervene and if person and hours of there intervention, hearing shall be held petition given board is the board. ap- agreement and after to declare prove approval charged worked, publish and the hours to be agreement. as set forth in the the Trade Com- Apparently authority mission of the neither state has nor the power schedules. It approve disapprove adopted appears agency to be the enforcement is bound decisions of the State Barber Board.

Mr. Justice PRATT in his has set forth some of constitutionality the authorities which have on passed wording of similar statutes. he While as indicates brought uniformity the various statutes has lack about a holdings, delegation legis- in the to discuss the prefer lative from two of view other than the points strict wording First, goes of the act. whether or not our act be- yond delegation limits in the permissible functions, agencies. Second, to state whether or not the act goes legis- beyond permissible limits functions, agency lative because it an administrative permits be controlled of a representative group profession guide adequate agency without standards either the the group. dealing

An inspection cases with the constitution- wage ality of barber and hour acts that indicates a number during of them were passed the National In- period Recovery Act, 195, shortly thereafter, dustrial 48 Stat.

and had as their purpose prevention what the various legislatures had determined were unfair methods compe- tition. I allude to this fact for the reason that two important by the cases Court of the Supreme United States L. R. [A. Poultry States, Schechter Corporation v. United 295 U. S. 1570, involving 55 S. Ct. 79 L. Ed. A. L. R. 947] constitutionality Recovery of the National Industrial question legislative Act have on the passed holdings While the of that court in powers. those cases binding may not on court this so as to us from preclude determining legislature go limits which our in delegating legislative its power, nevertheless the same involving delegation of law principles power involved, reasoning by court is of distinct and the that arriving at a solution of this help proper problem. quoting the important prin Before what believe to be of the United announced Court ciples Supreme States, point I desire to out some differences between Recovery two Act passed acts. The National Industrial was during by mem when it was believed period depression Congress stand bers some business improvement necessary a nation-wide ards was to overcome the effects of by any such em Our was not surrounded depression. reasoning ergency. Accordingly, if we follow the United Court announced in the case Wilson States Supreme New, 332, 333, v L. Ed. 243 U. S. 37 S. Ct. . there, 1917E, 938, A, 1024, L. R. A. Ann. would Cas. delegate legislature be less reason for our its functions in this I. A. That case than there was in the N. R. cases. emergency court in the Wilson case held that while does not emergency may create for the power, furnish occasion If, therefore, exercise of the United States Supreme power. Congress right Court could not find that to exercise had delegate authority on that occasion and unusual President, why there is reason we strain less should to find a reason for our to exercise its delegate authority unusual a board when we are high period inflation and prices. Another difference the Federal under the between cases N. I. R. A. and the one is under the N. R. A. present I. President of the United could the initiative, States his own

investigate if conditions and he found abuses contrary inimical to the interest and to the purposes could, hearing notice, of the act he after present industry. a code for the approve particular Under our act agency .right the administrative has no to initiate and in- vestigate merely on its own. It can or I approve, assume agreement organized to an disapprove, acceptable right that fundamentally, representative group. So to delegated solely life into law has breathe our been to mem- industry agency, and not to the bers state and once agency to the act is takes life administrative powerless it, remaining of control the control with members the pro- delegation of in that fession. This is importance around the Trade and the power State Commission passes control of the Barbers’ Board and vests the operation directly law in a interested individuals who are group the economical features of the act.

These differences are to for the of illus- referred purpose trating that the act under attack was not conceived in an emergency that threatened welfare of state nor was any it to correct unfair frowned purposed labor practices legislature. delegation on Rather it an attempted delegated of powers more than under the those sweeping delegation arbitrary I.N. R. A. and a a more permits granted unreasonable exercise the powers without right any abuses, to correct or eliminate announced without declared reason its enactment.

Passing now to the two United States Court Supreme authority govern- cases have selected as for the principles ing legislative Refining in Panama power, Ryan, 388, 421, 241, 248, v. S.U. Company S. Ct. Hughes L. Ed. Mr. Chief Justice for the speaking court said: “* * * Congress manifestly permitted is not abdicate legislative to transfer to others the essential functions with which Undoubtedly legislation adapted is thus vested. must often be complex involving a conditions host details with which the national Legislature directly. cannot deal The Constitution has never been regarded bility denying Congress necessary as resources flexi- practicality, perform which will enable it to its function laying policies establishing standards, down leaving while making selected instrumentalities the pre- subordinate rules within scribed limits the determination of facts to policy which the Legislature apply. declared capacity Without give anomaly authorizations that sort we should have of a many calling which in circumstances for its exertion would be futility. recognition

abut But the constant necessity and valid- ity provisions range of such and the wide authority administrative developed by which has been means of them cannot be allowed to ob- the, authority scure limitations of delegate, if our constitutional system is to be maintained.”

170 dissenting his limits opinion in his

Mr. Justice Cardozo question of whether majority to from dissent Congress the discre- to control standards set up not at 293 S. 434 of U. at he page of the Said president. tion 55 Ct.: 254 of S. page * “* * to delegation uphold there need is I concede whereby reasonably clear act a standard of the discover in the terms lacking deny governed. that such standard is must discretion by prohibitions permitted when the respect this section implications What a whole. is as all its reasonable considered with pivotal inquiry.” is becomes

the standard A. L. of A. followed in case This decision was 529, 55 495, States, 295 at page U. S. v. United Schechter 947, 1570, R. 843, 97 L. 837, L. Ed. A. Ct. at S. page Quoting from opinion: was re-emphasized. the principle power. Legislative question We “Second. The gen- pertinent recently to review the decisions and had occasion question. govern principles Pan- which this the determination eral 241, 388, [446], Ryan, L. Ed. 55 S. Ct. v. 293 U. ama Co. S. Ref. legislative provides, ‘all herein The Constitution 446. Congress States, granted which of the United shall vested Representatives.’ § and House Art. 1. consist' of Senate shall Congress authorized ‘to make all laws which shall be nec- And the carrying general powers. essary proper into execution’ its Congress permitted to abdicate or Par. 18. The Art. § the essential functions with which it is to others transfer recognized necessity repeatedly adapting have thus vested. We complex involving legislation a host conditions of details with which Legislature directly. pointed cannot deal out in the the national We regarded Co. that the has Panama Ref. case Constitution never been Congress necessary flexibility denying prac- resources perform ticality, laying will its function in which enable down establishing standards, leaving policies and while to selected instru- making prescribed of subordinate rules within mentalities limits policy by determination facts which the as declared Legislature apply. recognition But is to we said that the constant necessity validity provisions, range of such and the wide authority developed has been of administrative means them, authority cannot be allowed to obscure the limitations of the delegate, system if our constitutional is to be maintained.” foregoing was two cases The announced principle Board of Rowell v. State court the case followed this following P. 1. Agriculture, 2d 98 Utah of quotation 98 358 of Utah from the at page is taken 3 at of 99 P. 2d: page legislative may delegate not surrender its “That

power is elemental. may, however, through provide “It for administrative the execution agencies legislative may upon policy, confer and such administra duty determining question tive officers certain and the existence of facts which the or execution certain effect may dependent. policy of its McGrew v. Industrial Com mission, 203, Morgan 608; States, 96 Utah 86 P. 2d v. United U. S. ** 773, 999, 68 S. Ct. 82 L. Ed. 1129. majority Mr. Justice dissented in from part Wolfe However, general his dissent conceded the opinion. prin- involved in ciples his of de- powers, point he was that found certain ade- parture standards quately set forth.

Passing being for the moment the of the law problem brought only into existence on'the demands of those inter- in ested test the desire to profession, present from any, legislature. of the standards if set standpoint Under both the price-fixing provisions the act and the days and hours the same are provisions, standards pre- following: consist of the scribed. These 16A, 1943, being

Title U. C. A. Chapter Chapter Utah, Laws of 1945: Sections and Minimum 2. Scale Prices —How “Section Fixed —Increase. * * “* determining prices In reasonable minimum the board necessary take into shall consideration costs par- in incurred city county maintaining shops in ticular clean, health- sanitary wages

ful, and condition and also the and commissions which customarily paid employees shops such barber and shall take any other affecting into consideration profession facts and conditions the barber public safety to the in its relation and health. If the board investigation public hearing find after shall the minimum provide districts are adequate fixed such insufficient ser- safety public such minimum protecting health and vice from time to time.” be increased to Fix Hours of 3. Power Service. “Section power approve order official board shall have “The open for busi- days remain and hours when barber establish closing days fixing opening agreements such ness whenever organized by any signed to the board and submitted have hours been group like to con- representative have and the board shall pro- hearings investigate reasonableness and to duct agreement' conferred under priety as is the hours fixed such 2 of this act.” Section the “hours of service” provision consider If we first set aót, required the standards to determine how we are guide determination a proper forth furnish worked, days are to be open. the shops hours in Section only are listed factors to control the board The to main- (a) necessary incurred cost and are these: condition; sanitary clean, healthful, and tain the in a shop customarily wages (b) paid and commission which are (c) any factors other and shops; barber employees affecting re- the barber profession and conditions safety and health. to the lation public (a) (b) have no reasonable Obviously and Subdivisions legis- service, if the so that with the hours connection days and within framework of hours erected a lature has build, must the structure be created must which the board (c). the whole subsection opens up This Subsection borrowing safety and the words and health field public Poultry in the Scheehter Cardozo’s opinion from Mr. Justice case, * * * canalyzed power delegated within banks that “The vagrant.” overflowing.

keep It is unconfined and it from organized may Anything and representative group safety limits and health within the of public recommend required is not to approve The board the law. can become recommendation, it no to make its own has but might investigation necessary in the what be to determine health, safety interest of it must either public accept nothing. the group’s recommendation or do act, To accomplish purposes representative group permitted recommend and the permitted board closing days to determine what hours and opening safety inimical to the To reason public and health. that hours of have a opening barber shops safety reasonable and health is to relationship public suggest overlook the practical aspect problem. just healthy just will be as as safe whether morning ones at 10 o’clock in shop and closes at 7 evening

o’clock in the it as will be if the are opened doors morning at 9 o’clock in the closed at o’clock in the evening. If any of work hours have relation- reasonable safety to the ship they only or health of the could public, safety effectual a health they measure if limited the day number of hours or week per that the individual barber get was to work. He permitted tired or if careless required excessively, to work but if the intended long to relieve the individual barber from hours working neglected prescribe hours for them it to so If provide act. hours can remain shop directly safety affect the open health and then public, necessarily stores, that the follows hours all butcher shops, cafes, stations, service all other re- establishments delegate main have the same effect. To open to a board the right to control all members of the business world circum- general only by clause, health scribed and welfare would be more than an unlawful it would powers legislature. an abdication of It is impossible guide to find definite standards in the board, act to good other than its discretion to what is and proper safety legislature for the health and of the The public. has general not declared the of the policy law in to respect hours and has not set opening the standards control which are to and circumscribe the representative making in and the Barber Board group their decisions. On delegated contrary, it has the to both the most sweeping of right including determine to powers, the standards. and the establish policy right arguments on It would redundant present be will days shops select group representative rights these approve of the Board to closed and the remain apparent. The lack of recommendations. same standards days many legislature on how declared no policy has nothing in I find remain open. a week a barber shall shop agree- from would the board approving the act that prevent days a week requiring to remain seven ments the shops open might though they either requiring two. Even close guide given unreasonable, group no the representative be legislature deems reasonable to what or the board as might recommend dif- Each area group or unreasonable. days would within its power ferent board be thusly days It of work all. would scatter approve only with in different areas state barber shops judgment a check reasonable or unreasonable as of what is it made. to assume proper on the laws While unwisely arbitrarily, by not act what standard board will Certainly can determined? has this be any. furnished just as nebulous. There

The standards set guide are no It can representative standards group. agreeable any recommend to members. In price determining recommendation, reasonableness to take into consideration the in- board is directed costs maintaining clean, curred in in a healthful condition, wages sanitary and the and commissions but where the act is condition or employees, paid high limitation on how the price be set? Cannot one controlling factors, namely wages, be the medium of the trade members can control the to be charged? may the owner of profit What the shop include return on What his investment price? shall be con- charge sidered as reasonable? What items can he as ex- arriving at reasonable What penses price? if period, figure? any, for a cost base can be used Is the

175 charged maintaining based on cost of the most expensive main- sanitary in a or the establishment condition cost taining These the one-chair in the same condition? shop questions have are that the usual standards show posed has by been and that board proposed usually been of that per- vested with far excess legislation. mitted in this type agencies many to set

While administrative permitted measuring instances, rates has in all some stick prices legislative body. by In cases been the federal prescribed Act, Emergency C. A. under 50 U. S. Price Control seq., 901 et was directed Appendix, administrator § give designated during consideration to prevailing prices adjustment base with administrative period prescribed affecting disturbing for compensate enumerated factors states, certain prices. In the milk control acts various were basic set forth. Where standards purposes primary just no than fix standards have been set other that a board minimum wholesale and retail for reasonable prices setting milk, out the act has been held to insufficient Jackson, 296, 188 88 N. H. A. In standards. Ferretti v. setting 474. rate-fixing agencies utilities, up purposes guiding to be the act and some standards accomplished legislative have been bodies. prescribed In the case of Carter Carter Coal U. S. v. Company, 1160, L. Ct. 80 Ed. United States Supreme S. Court Coal Conservation Act uncon- held the Bituminous delegation stitutional an unlawful because of this act the fix- One of powers. ing provisions permitted majority coal fails and while section, constitutionality of that particular on the pass dissenting Mr. Cardozo treats it in his His Justice opinion. interesting in that it refers to some of stand- decision is He, however, act. does not mention ards set forth that, are to be in con- items the act considered prescribed, of costs. Said he at 298 U. S. computation nection with L. Ed. 1200: 56 S. Ct. “(3) objection Finally, and in answer to the third to the statute price-fixing provisions, no there has been excessive legislative power. to be fixed the District Boards following they the commission must must conform the standards: just they weighted average equitable; must take account of the production price area; they of cost for each minimum must not be unduly prejudicial preferential or or as between as between districts producers nearly district; they possible within a must reflect as as kinds, qualities, the relative market value of the various sizes coal, points delivery consuming area; at in each common market affording producers

to the end of the in the several districts substan- tially opportunity dispose competitive the same to their a coals on as any basis has heretofore existed. The minimum for district shall yield return, per ton, weighted average net less than the of the per tonnage total price area; costs net ton of the the the any mine, yield fixed, maximum for if a maximum is shall a return * * *” plus profit. than not less cost a reasonable affecting validity Another reason the of the act is that adequate the has also to failed furnish territorial guides. delegated or limits It has to of the members 70% right profession of the the to determine whether the recom- only city apply mended scale shall in a or whether it shall country. apply provides to the whole The act that when any city county of the licensed barbers within or 70% agree price, approved the same County example, board. If we use Lake Salt as an who determines the territorial limits? If of the licensed 70% county City barbers reside in Salt Lake and make county, they recommendations for whole of the are not only permitted prices open- set scale of and hours of ing City, shops in Salt Lake but in addition can force county require- comply all other barbers in with the They part county ments. can elect to or bind all they appears see fit. It unreasonable that the barbers operating metropolitan in a operating area where costs of higher considerably opening a business are hours closing are different than in the rural areas should power prices working have to set the and determine the county. operators say for all hours in the It is no answer to can determine board whether or paid not the to be in the rural and hours to be are reasonable for worked no or areas. board has discretion set than schedule other that recom- hours opening can mended It profession. accept members designated nothing. territory by the or do barbers Another illustration the lack of act standards govern agency discretion of administrative right lower, authority vary, the Barber Board no has given modify It been refix has no discretion to prices. it downward. Once schedule submitted approves barbers, unless it can powerless 70% get recission, the same barbers to percentage petition Thirty-one modification or cent of the revision. barbers per remaining control members of the operations only of the act can profession, repeal divest minority regulate the business. This delegated any has been this without restraint 31% or of or standards control. scale of hours and the opening adopted continue in board regardless changes force and effect of in economic con- ditions, and of the of unless members the pro- 70% agree fession to release the the board from approved schedules, Permitting the and hours are frozen. effectively members of the to profession barber so stall re- right abuses, denies to the Board the to vision Barber correct injustices, mistakes, delegate right or and to this is an un- lawful of It is a transfer of powers. complete legislature pass functions. If the can to a small percentage particular members business or pro- right following the fession to from the fluctu- prevent conditions, of economic ations then it can permit small of all members and percentage businesses professions require majority the to other and members the public generally one-way to tread a price street. To not realize control, way that without to always standards this would eyes our would be for us to close up, what all others are to see. able .. the in that the is defective

I am of the that act guide the administrative to control and lack standards agency uncon- agency, unfettered and the to be permits may may trolled, judge not and the sole what territory judge of what welfare of the and the sole people there- county by the and controlled profession, in a shall be delegated fore, This are and sweeping. too broad renders act unconstitutional. on similar barber bills

Most the authorities passing unconstitutionality constitutionality have treated the being act, exercise from the proper standpoint agreement are authorities All police power. subject the in- police power profession legislature has welfare. Our own terest recognized health and public rather comprehensive this passed regulations subjecting promul- rules barber shops gated requiring individual Board of Health and State qualifications to have their barbers have certain they right subject the event to cancellation in practice guilty Title See Chapter conduct. unprofessional C. A. 1943. enactments are to protect pub- U. These directly affect health lic from the practices Certainly health welfare insofar as public. concerned, other welfare has enacted sanitary adequately insure condition of shops measures to contagious of infectious prevent spread diseases. of this

It is most difficult to believe intent act is health and welfare of This has protect public. already When the mask is cast aside we see been protected. act, which is to be familiar claimed altruistic prin- nothing in- but is more than to permit ciple, to It cost of service substitutes public. crease legislature for the will of will profession energy unnecessary initiative and it stifles individual when is good. may It public do so increase protect owners, of the individual this shop some but income has no to the reasonable relationship public health welfare. right legislature

Under certain conditions the has the working wage minimum prescribe scales and maximum hours. Were this act sustainable under principles dealing subjects, enunciated in cases the act with those undoubtedly however, Here, would be we constitutional. are not confronted with such an act. There are maximum no hours for the provided individual barber. The act permits day to remain shop 24 hours a if the open board approves. stay Under the schedule adopted shop permitted days days. 10 hours on some open hours on other It reasonably could not be contended the in- tended those hours to maximum hours labor for an individual schedule, barber. Under the em- proposed required stagger union shifts, members would ploying holding Iso can see no reason for act assures em- shorter hours. The ployees schedule the man prevent longer working who works alone in his from shop than be- closing hours, tween the prescribed opening but even long for him the hours set are effectively too aid his health and welfare. reasoning

Similar can be directed towards the minimum wage wage feature. There no act, set and no prescription the individual barber share in the increased If price. can be set members of the might eventually profession be that the employee benefited, will be even hardly but so this is remote and can affecting be considered as the health and welfare of the Insofar as the public. provisions the act control owner, he liberty is at perfect to direct the increased revenue high wages to his own benefit. While employees tendency have a to aid the health and welfare of the public generally, wages certainly low high to the employee to the do profits employer not have this effect. Had the legislature intended this act to be for the benefit of the good, or for the employee it would not have been difficult to so If provide. the act claimed, is as beneficent as

180 delegate to would the it is inconceivable the laudable the to defeat of the profession power 31% of the law. purposes Noble v. in the case

The Court of Arkansas Supreme say 191, Davis, 156, 189, this to had 204 Ark. 161 S. W. 2d . a similar act: about “* * * only purposes to confer of the Act were The real and price appellants (1) schedules on to establish minimum (2) paid barbers; for their minimum to be to barbers commissions shops. services; (3) opening hours for barber Now ‘protection

just purposes the three have with what connection these general prosperity,’ public safety, health, or with welfare and them, perceive. How can the barber either of is difficult pays charges shave, commission the owner for a haircut or or the shop public opens barbers, closes affect or the hour the or visionary safety, health, prosperity? welfare or Such connection is * * *” and not' real. in the v. Court of Tennessee case State Supreme 258, Greeson, Tenn. 124 S. 2d adopted W. dissenting the Louisiana of Chief Justice O’Niell of opinion rehearing of the case of Board court which was filed Parker, Barber Examiners Louisiana v. La. following quote the of that 182 So. 512. portion We on of 124 2d: found S. W. page “ only question authorizing in these cases whether ‘The a statute may charge public board to fix the minimum fees a barber really protect public disputed his services tends health. It is not may endanger public health, that the barbers’ trade is one which regulation by subject Legislature. which is therefore But Legislature prescribing not see an act of the how the minimum do delegating public authority fees, prescribe to a board the —or may charge fees, pro- barber for his services can —that' tendency public tect, protect, only ap- or have a health. The Legislature way protect propriate public health, can welfare, promote public respect, sanitary in that is to establish regulations, requirements and to maintain cleanliness in the guard against unhealthy barbers, prescribe qualifica- shops, efficiency, and to and standards of enforce them tions means of examinations, by requiring apprenticeship. terms of If a barber requirements efficiency, with all complies and all of the sanitary regulations, laid the Board Health or down possibly endanger public Examiners, Board of Barber cannot ” * * or the health welfare. The in the case of State Board Court of Indiana Supreme 552, Cloud, 44 E. 2d Barber Examiners 220 Ind. N. v. of 972, 977, arrived at the conclusion: same might “While is conceivable that result in better shorter hours beyond himself, purview of health the barber of such end is provides limiting shop Act. It for when be orders hours kept open. any par- It does not limit the hours of labor of The barber. daily permit plus ticular order would him work ten hours three Saturdays days preceding holidays. additional hours on In Patton City Bellingham, 566, 364, v. 1076]; Wash. 38 P. 2d 98 A. L. R. [179 of Paille, Opinion 347, v. State of the Justices N. H. 9 A. 2d [90 663]. 10, City v. State Johannes Minn. 259 N. W. and Eanes v. [194 537] 531, 896], Detroit Mich. 272 N. W. [279 the courts decided that of object legislation prescribing open barbers’ health not the was of ing shops of hours barber and with this conclusion we agree. nothing peculiar There is in the work of a barber that calls special legislation protect for parte class his health. See Ex App. 424, any viewpoint Boehme Cal. 2d 55 P. 2d From [12 559]. we are unable therefore to see a substantial relation between the provisions of this act and the health. The same conclusion was Knight 519, City reached v. 509]; Johns Miss. [161 137 So. 388]; County 32; Denver v. Schmid City Colo. 52 [98 P. 2d Eanes v. of Detroit, 896]; 531, Mich. 272 N. W. [supra]; [279 v. State Paille of City Kuhn, Opinion Louisville v. Ky. of 684, the Justices [284 851]; W. [supra]; parte S. 2d v. State Greeson Ex [22 Kazas Cal. App. 962], 2d 70 P. 2d In Ex parte Kazas the District Court 4th Appeal, Dis- trict, California, 22 Cal. 2d App. 70 P. 2d arriving conclusion, at a following similar statement reveals: apply welfare,’ descriptions “When we ‘general these to the facts case, of the legislation instant we conclude question that here

does fall within their terms. The purpose ordinance does not promote prosperity of the citizens of Bakersfield nor of con- siderable class It' concerns itself them. with the welfare aof small group within a If class. we assume that there exists in Bakersfield deplorable and chaotic condition industry of trade and which the portrays, ordinance we question: are confronted specific What remedy proposed are advised that there the ordinance? We forty-six families and their in Bakersfield. The barbers cent, city. population per compose more than could not fixing price alone. ordinance for barbers The ordinance is a that legislates alone. It recites ordinance for the benefit barbers barbering unemployment To ameliorate trade. there is wide charged haircuts a minimum that condition it fixes purport of the the welfare to consider shaves. The ordinance does not cent, city population per nor the effect on them of the other charged cutting fixing hair or their the minimum to be shaving on conclude that face their masculine faces. We affirmatively appears legislation was not in- ordinance it Bakersfield, promote general people but welfare of the tended only group composing very proportion popula- a small small city.” tion holdings with are consistent those

Other cases whose quoted could be cited from could referred to and others However, contrary as far as result. have reached delegates ascertain, so no act which have been able to does not of the much to members power profession of the the to act independently repre barber board permit revise, modify, or its own sentative adopt group yet This has been sustained. peculiar or hours of work fol in our act to me to make applicable seems provision lowing language majority from Mr. Justice Sutherland’s case, found at 298 S. in the Coal U. Carter opinion L. Ed. 1188: S. Ct. delegates power to fix maximum hours “That subdivision part producers namely, produc- and the ‘the labor to miners — tonnage production of the annual national ers of more than two-thirds year’ preceding and ‘more than the mine for the calendar one-half employed’; producers and to of more workers than t'wo-thirds of the during preceding tonnage year annual calendar and a ma- district jority delegated power miners, there is to fix group wages effect, respect' or of districts. in for the district The subject minority, wages hours, pro- the dissentient is to either of majority, the will since, or miners both to of the stated ducers minority submit, refusing to at once incurs the hazard enforce- compulsory provisions of of the drastic the act to which ment we have ‘accept,’ choice, in these referred. To circumstances is not to exercise a to force.

but to surrender power is, effect, majority in power “The conferred minority. unwilling regulate This is affairs of delegation form; for it is not even most obnoxious its in disinterested, presumptively body, but an official to an official or to the private persons often are adverse be and whose interests *” ** same business. interests of others affirming judgment. For reasons I concur these (concurring). McDONOUGH, Chief Justice Mr. in the I concur. I concur result also under con- effect that statute LATIMER to the Justice legis- delegation of an unconstitutional sideration constitutes lative power.

WOLFE, (concurring). Justice I are fundamental problems

As see this case there three Although three to a certain involved. concepts that, interwoven, analysis requires inextricably extent clear be, they insofar should be separated purposes three consideration discussion. The concepts refer, are these: state, (1) exercise proper The power regulate the barber trade. This powers, proposi- police tion on two case at bar: takes aspects regulate (a) The of the state prices. power regulate (b) of the state conditions of sani- tation.

(2) regulate state conditions sani- Attempt by the tation controls. imposition (3) through delegation Exercise of to an police powers question administrative board. This involves the of definite- delegatee regulatory of standards which ness must conform. I In this shall insofar as opinion, attempt, possible, I various shall treat them keep concepts separate. they in

order which are enumerated. Certainly health, from the standpoint arose, affected with a interest. ifAnd the situation public 1932, ruining as in that unbridled busi- competition was all ness, might then all business be affected in- with a public terest in that it tois welfare that public business should come a standstill. And when sends competition prices on, down to a carry where business cannot point even the regulation may although for the prices be welfare public regulation involved, health public reasons not be ordinarily nor is the one business considered to be affected dissenting with a interest. In a public in Rowell opinion v. Agriculture, 353, State Board 365, 1, 6, 98 Utah 99 F. 2d I out pointed that was held in Nebbia v. Peo ple State York, New U. S. Ct. S. 78 L. Ed. 89 A. L. R. depend right prices “the of a fix did not on whether state to the busi- monopolistic enjoyed state, a ness was from nature franchise depend nor did it on whether the business was affected or clothed with public purposes interest sense were to furnish services universally public as, transportation, heat, such light, used power. public water and The touchstone of interest is whether necessary economic to make it desirable or occasion is such as for the regulated public be business to welfare.” quoted then from the court as follows: “ upon proper by ap- ‘But there can no doubt that be occasion and propriate regulate measures of its business state aspects, including prices charged products for the com- ” modities it sells.’

But we are not now in such economic situation that large destroy cut-throat threatens all or a competition segment economy, we of business. Rather have an inflated is, the chief at ad- problem present, rapidly vancing goods not, of all services. It and it successfully necessary could not be contended that it is at charged a floor under this time place they for the various services barbers render. The barber industry interest, only at this time affected with n as brings a to relates to health. This us considera- public tion second proposition: regulate

It me for health and that the to appears power being guise safety here as a is used public permit industry hours to fix schedule of and its its own course, conjure of work. Of one aup relationship be- income and tween hours sanitation meagre the revenues are too of work that a where shop long, day, in a one-chair too shop, the business especially .or sanitary thoroughly as a more prosperous not be kept one; remote and I but the relationship haphazard barber, logically if A doubt such inference can be made. cleanliness, housewife, like a trained in will ideas keep revenues; his clean one not so small despite trained shop may exhibit an revenues. despite ample unkempt shop And ordinarily will not competition plays part. People pat- all, dirty way ronize a But the short and direct above shop. the avowed of the statute accomplish would purpose regulation require by certain minimum standards Tacking fixing cleanliness sanitation. scheme going of sanitation around Robin Hood’s purpose Barn and then not the result It desired. accomplishing regulations Avould to enact direct and clear re- be feasible garding and sanitation. Definite Cleanliness standards legislature if could have been laid down at least might, I the Barber Board. think the cases, industry, certain leave to an trade or profession regulatory industry, to initiate codes for such trade power including business even respecting practices, profession at affect times when practices competition, especially dog-eat-dog may be destructive of all business competition large segment thereof, or a or lead to its centralization in But there semi-monopoly ownership. should monopoly body administrative with representing be some duty regulations, to ascertain whether they reasonably view of what accomplish, purpose designed that end. as respects note of distinction should make perhaps regulation industries subject those of rates between subject principle pub- to the free enterprise

which are dealing regulatory with statutes lic The first utilities. on the very limited utility rates provided filing consequent of a regulatory on the bodies part say that if utility. I am not prepared schedule the constitutional, were otherwise the law under consideration might limiting or to mere disapproval the power approval my the concurrence on bald I to place not be valid. prefer no reasonable between relationship that there is proposition of the act and the means the purposes police purported fact, I no exercise of the police In see accomplishment. powers. three, question

Turning the number now to proposition of standards: LATIMER, reference to

In the of Mr. opinion Justice fact, my I think I should call attention to the as did concurring in the case of opinion McGrew v. Industrial Commission, my 96 Utah 85 P. 2d dissent- ing in the case of Rowell v. State Department of Agriculture, Utah P. 2d that the standards and guides required largely what is ac depend feasible to legislature. adequately the complish result desired the narrow; they may quite In some cases in other cases rigid require minutely To broad. guides defined standards or regulated where the matters to be are of such a might require flexibility, nature toas needed rem- prevent legislature Otherwise, required edies. would be to antici- might all situations arise and itself pate possible guide situation, require- a rule or to fit each such supply might ment which be palpably impossible.

Roughly, the measure of the detail content of standards guides or is subject regulated what the matter or to will Otherwise, admit of. practically could not regulate might exercise its what acutely need regulation diversity because the regu- complexity involved, lative problems would not practically admit setting sufficiently kept It should be detailed standards. general rule real heart in mind that as a agent may is to define area in which administrative regulation required act; as to the field of broader subject greater diversity and com- matter regulation, plexity problem involved in such n broader have to be standards. legislation, constitution-wise,

A of this vulnerable feature “organized representative that in actual effect the regulation group” makes the to hours fixes approval on in of the Barber Board and that such remains bare change “group” until seek to such it. Such effect machinery adequately constitutionally protect does not public. the interests point above, I attention to the shall call Pertinent determining named in' the act

that one factors “wages prices” commis- “reasonable minimum customarily paid employeesin to the sions which Certainly compensation shops.” in cases where charge journeymen percentage split made barbers is a proprietor, it such barbers and to the customer between point up would be to the where business would seem materially pecuniary reduced, it to the interest of would be prices. proprietor “up” both barber proposed make such a increase it would seem to And higher group” “representative not so much the reason for consequence words, of it. In scale as the other minimum the barbers may encourage “representative group” enlarge “take” in order to increase the barbers’ taken into in fix- factor which is consideration main ing minimum scale.

Case Details

Case Name: Revne v. Trade Commission

Court Name: Utah Supreme Court

Date Published: Apr 5, 1948

Citation: 192 P.2d 563

Docket Number: No. 7061.

Court Abbreviation: Utah