T. E. McRae v. RobbinsT. E. McRae v. Robbins
Challenged by this appeal is a final decree entered by the Circuit Court of Leon County, Florida, sustaining the constitutionality of Chapter 20425, Acts of 1941, Laws of Florida, relating to the occupation of barbering and the operation of barber shops. The Act regulates the minimum prices to be charged for barber services and the hours of operation of barber shops. It authorizes the Barbers’ Sanitary Commission to adopt and enforce reasonable rules, regulations and orders necessary to carry out the several provisions of the Act. The power is given to the Barbers’ Sanitary Commission to grant and renew a barber‘s certificate and to revoke or suspend for lawful reasons a certificate previously granted. It is asserted that the several provisions of the Act can or may be sustained under the police power of the Constitution, but no contention is made as to the applicability of the provisions of Section 30 of Article XVI of the Florida Constitution.
Section I of the Act is a legislative finding that the occupation of barbering and the operation of barber shops are affected with a рublic interest; that it is necessary in promoting and conserving competitive, salutary and sanitary practices among barbers and barber shops that reasonable minimum charges should prevail for barber services in barber shops, and also that reasonable opening and closing hours should prevail; and in the interest of the health, safety and general welfare of the people Chapter 20425 supra was by the Legislature enacted.
One of the questions presented for adjudication is: Do the provisions of Chapter 20425, Acts of 1941, Laws of Florida, empowering the Barbers’ Sanitary
The Barbers’ Sanitary Commission, by terms of the Act, when brought to its attention by a petition of 66 2/3% of the registered barbers of a county, that unfair and unreasonable economic practices prevail among the barbers or barber shops tending to make insecure the economic status of barbers or that the hours of operation are unreasonable and make difficult or inadequate sanitary inspectiоn affecting the health and efficiency of the barbers or the health and safety of the patrons or customers of the shops, and when these conditions are found to exist, then the Commission, after due notice and hearing, shall be authorized to promulgate scales of reasonable minimum prices that shall obtain and prevail and fix reasonable hours for opening and closing of shops in said county, or it may prescribe zones in a county with appropriate varying prices in said zone of a county and hours for the opening and closing of shops, provided such orders, rules and regulations are reasonable and otherwise legal in their adoption and in their operation.
The Legislature determined that the occupation of barbering and the operation of barber shops were “affected with a public interest.”
The constitutionality of price fixing measures has been considered and sustained by this Court. See Miami Home Milk Producers Asso. v. Milk Control Board, 124 Fla. 797, 169 So. 541; Bon Ton Cleaners & Dyers, Inc., v. Cleaning, Dyeing & Pressing Bd., 128 Fla. 533, 176 So. 55; Economy Cash & Carry Cleaners, Inc. v. Cleaning, Dyeing & Pressing Bd., 128 Fla. 408, 174 So. 829; Bristol-Myers Co. v. Webb‘s Cut Rate Drug Co., Inc., 137 Fla. 508, 188 So. 91; Miami Laundry Co. v. Florida Dry Cleaning & Laundry Bd., 134 Fla. 1, 183 So. 759; Mayo v. The Polk Co., 124 Fla. 534, 169 So. 41. Likewise see: 16 C.J.S. par. 690, pages 1445-6; 11 Am. Jur. par. 282, pages 1042-3; Nebbia v. New York, 291 U. S. 502, 78 L. Ed. 940, 54 Sup. Ct. 505; 89 A.L.R. 1469; Old Dearborn Distrib. Co. v. Seagram-Distillers Corp., 299 U.S. 183, 81 L Ed. 109, 57 Sup. Ct. 139; 106 A.L.R. 1476; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L. Ed. 703, 57 Sup. Ct. 578, 108 A.L.R. 1330; United States v. Rock Royal Co-Op., 307 U. S. 533, 83 L. Ed. 1446, 59 Sup. Ct. 993; Mayo v. Lakeland Highlаnds Co., 309 U. S. 310, 84 L. Ed. 774, 60 Sup. Ct. 517; Sunshine Anthracite Co. v. Adkins, 310 U. S. 381, 84 L. Ed. 1263, 60 Sup. Ct. 907; Carter v. Carter, 298 U. S. 238, 80 L. Ed. 1160, 56 Sup. Ct. 855; Olsen v. Nebraska, 313 U.S. 236, 85 L. Ed. 1303, 61 Sup. Ct. 862; Duckworth v. Arkansas, 314 U. S. 390, 86 L. Ed. 294, 62 Sup. Ct. 311, 138 A.L.R. 1144.
The phrase “affected with a public interest” means that the occupation or industry when in operation affects the health, safety and welfare of the people and the public is interested to such an extent that reasonable laws can or may be enacted for its control and regulation. The extent to which an occupation or business may be regulated varies with different kinds of businesses. The Legislature may enact reasonable regulations for barber shops, beauty culture salons, fruit industries, hotels, drivers of automobiles, and similar businesses, on the theory that they “are affеcted with a public interest.” See 16 C.J.S. 1424-5, par. 672.
Whether or not the Barbers’ Sanitary Commission has the power, “when considering the economic status of the barber,” to regulate the individual compensation that shall be made to the barber by proprietors of the barber shop in which he is employed is not presented on this record.
Counsel for appellants cite State ex rel. Fulton v. Ives, 123 Fla. 401, 167 So. 394. This decision construes Chapter 14650, Acts of 1931, Laws of Florida, and the same was held unconstitutional. The unconstitutional
Question five is viz: Assuming that Chapter 20425, Acts of 1941, Laws of Florida, is not unconstitutional ipso jure, is the оrder of the Barbers’ Sanitary Commission, complained of in this cause, an unlawful attempt to exercise the powers lawfully conferred by said Chapter 20425?
The prices promulgated by the Barbers’ Sanitary Commission applicable to Leon County are viz:
“Haircut 50 Cts. All Facial Packs 75 Cts.
Shave 25 Cts. Facial 50 Cts.
Shampoo (Plain) 50 Cts. Combination Facial 75 Cts.
Shampoo (Medicated) 75 Cts. Tonics 25 Cts.
Singe 25 Cts. Neck Clip 10 Cts.
Mustache Trim 10 Cts.”
Counsel point out that the shop operated by the two appellants consists of three chairs, with the appellants each operating a chair and they employ an additional barber; that their rents, utility bills and other overhead expenses are kept at a minimum and that they can operate at a profit and charge forty cents for a haircut and reduce other amounts for the services fixed by the order of the Commission, and that all sanitary rules can be observed and the health, safety and welfare of the public promoted; that the plaintiffs have customers who cannot patronize their shops if the hours fixed by the order are observed; and that the several provisions of the order of the Commission are each unreasonable, arbitrary and discriminatory.
Section 5 of the Act authorized the Commission to adopt and enforce rules, regulations and orders necessary to carry out the provisions of the Act. It has the power by the Act, by an appropriate order, to fix the reasonable minimum prices applicable to a county or zone, as wеll as the opening and closing hours of barber shops. These orders can be rescinded or modified, or substitute orders promulgated. Statutes delegating rule making and enforcement powers to officers and boards for effectuating a declared policy of the law are numerous and generally are by the courts sustained. See Mayo v. The Texas Co., 137 Fla. 218, 188 So. 206. While the delegated power under a statute to make reasonable rules, orders and regulations can or may be sustained, it does not follow as a corollary that the orders and rules so made are always reasonable, as distinguished from unreasonable and arbitrary orders which are violate of due process guaranties. Such statutes do not confer on a board or commission arbitrary or unlimited powers not granted by the terms and provisions of the Act.
Section 3 of the Act grants the power to the Barber Commission, after due notice and hearing, to regulate barbers and by order to adopt a scale of reasonable minimum prices to be charged for barber services and to fix the opening and closing hours of shops within the area. The terms or provisions of the Act fail to make the orders, rules and regulations of the Commission prima facie reasonable but for enforcement purposes the order fixing a scale of reasonable minimum prices and the hours of opening and сlosing barber shops adopted by the Barber Commission are assumed to be prima facie reasonable, and within the power of the Commission to adopt, if supported by
The bill of сomplaint alleges that pursuant to notice given to all registered barbers of Leon County, inclusive of plaintiffs, on December 17, 1941, the Barber Commission by order adopted a scale of minimum prices to be charged for barbers’ service and fixing the hours for opening and closing barber shops in Leon County which the Barber Commission concluded were reasonable and fully authorized by the terms and provisions of the Act. The bill of complaint alleges that the aforesaid order fixing a scale of minimum prices for barber services and the hours of opening and closing shops are unreasonable, unwarranted, arbitrary and violative of due process guaranties and that the аforesaid orders are not authorized by the terms and provisions of the Act.
The bill of complaint alleges that plaintiffs’ shop consists of three chairs and they each operate a chair and employ one barber; that by applying rigid economy while operating, the utility bills, laundry expenses, and other incidentals were always maintained at a low level, and by exercising frugality in maintaining at a minimum all over-head expenses they were thereby in a position to render to the public approved barber services and were able to operate their shop at
The Barber Commission filed a motion to dismiss the bill of complaint on seven different grounds and one of which was that there was no equity in the bill of complaint. The facts, well pleaded in the bill of complaint, are admitted to be true for the purpose of a ruling on the motion to dismiss. If there is equity in the bill of complaint the motion to dismiss should be denied. See Matthews v. Wilkerson, 132 Fla. 753, 182 So. 439. The hours for opening and closing barber shop and the scale of prices fixed for barber services are alleged to be unreasonable, unwarranted and violative of the due process guaranties, and these serious allegations of fact are admitted to be true on the motion to dismiss. We think these allegations are sufficient to require an answer on the part of the Barber Commission and on these issues testimony can be taken and the rights of the parties adjudicated in an orderly manner. See Board of Barber Examiners v. Parker, 190 La. 214, 182 So. 485; Beaty v. Humphrey, 195 Ark. 1008, 115 S.W. (2nd) 559; Hoff v. State, 39 Del. Rep. 134, 197 Atl. 75; State Board of Barber Examiners v. Blocker, 176 Ga. 125, 167 S. E. 298; West v. Chesapeake & P. Tel. Co., 295 U.S. 662, 55 Sup. Ct. 894, 79 L. Ed. 1640.
The order of the lower court sustaining the constitutionality of the Act is hereby affirmed. That part of the decree sustaining the order dated December 17, 1941, adopted by the Barber Commission holding as a matter of law that the prices and hours were lawful is reversed with directions that an order be entered allowing the defendants below to file an answer and that testimony be taken on the issue of whеther or not the aforesaid order was reasonable, or unreasonable, or unwarranted or violative or due process guaranties, and that further proceedings be had in the lower court not inconsistent with this opinion.
It is so ordered.
WHITFIELD, TERRELL and THOMAS, JJ., concur.
BROWN, C. J., concurs in part and dissents in part.
BUFORD and ADAMS, JJ., dissent.
WHITFIELD, J., concurring with CHAPMAN, J.:
The Circuit Court properly decreed the statute to be valid as against the attack made on it, the service performed being “of a public nature.”
That portion of the decree which adjudicates that the order of the administrative commission is a con
The Commission has only the delegated administrative authority confered by the particular statute; and the order made by the commission should be predicated upon evidence and facts found to show compliance with the statute under which the delegated authority is exercised. The order made should contain statements of ultimate facts found showing that the statutory authority was followed and that the order made by the administrative commission has adequate support in evidence duly adduced and considered with findings thereon warranting the order. 51 C.J. pp. 60, 65; Wichita R.R. Pub. Util. Comm., Headnote 6, 260 U.S. 48, 43 Sup. Ct. 51, 67 L. Ed. 124; 3 Pond‘s Pub. Utilities, Section 890, pp. 1769 et seq. Neither the order of the commission nor the judicial decree states that the scale of minimum prices is reasonable or that the hours prescribed are reasonable.
Plaintiffs have a right to maintain the suit, and the portions of the decree adjudging the order by the commission acting under delegated authority, to be constitutional and lawful, is on this record clearly erroneous and should be reversed. See
While the essentially legislative and judicial “powers of government” as stated by
Where a statutory board, commission or officer or other tribunal or agency is lawfully given administrative and limited quasi-legislative or quasi-judicial authority or duties, such authority or duties must not inсlude any substantive legislative or judicial powers
When facts are to be considered and determined in the administration of statutes, there must be provisions prescribed for due notice to interested parties as to time and place of hearings with appropriate opportunity to be heard in orderly procedure sufficient to afford due process and equal protection of the laws in any official action taken under the delegated authority. The statutes and the principles of organic law require testimony to be adduced and facts found thereon upon which the administrative orders are to be made.
The evidence adduced at hearings in fixing rates and hours of service must be taken down and made a part of the record of the administrative proceedings, and specific findings based on such evidence must be made and entered in the record as a necessary predicate for the order made, so that such order together with the evidence and the findings thereon may be reviewed in appropriate judicial procedure. Such administrative orders made without a record of the evidence adduced
In this case no evidence appears in the record to support the administrative order that is by the circuit court adjudicated to be constitutional and lawful.
TERRELL, CHAPMAN and THOMAS, JJ., concur.
BROWN, C. J., concurs in part and dissents in part.
BUFORD, J., dissents.
BROWN, C. J., dissenting in part and concurring in part with the opinions of Justices CHAPMAN and WHITFIELD:
I cannot agree that the present Act, Chapter 20425, Acts of 1941, eliminates those features of Chapter 16799, Acts of 1935, which caused this Court to hold the price-fixing provisions of the former statute unconstitutional in the case of State ex rel. Fulton v. Ives, et al., 123 Fla. 401, 167 So. 394. Applying the principles laid down by this Court in that case, the price-fixing provisions of the present Act are, in my opinion likewise unconstitutional. I am also inclined to the view that the recent 1941 Act now before us attempts to delegate to the Barbers’ Sanitary Commission, an administrative board consisting of “three practical barbers” created by Chapter 19183, Acts of 1939, the legislative power of fixing “reasonable prices” for barbers’ services, without establishing a sufficiently definite rule by which the board is to determine
Florida‘s first price-fixing experiment dealt with a great public utility, the railroads. This was back in 1887. The Legislature in that year adopted a statute, Chaрter 3743, establishing a Railroad Commission. This statute was repealed in 1891. A new Railroad Commission Statute was adopted by the Legislature in 1897, during Governor Bloxham‘s second administration. See Chapter 4549, Acts of 1897. The first statute did not provide any vocational qualifications for the commissioners, but the Act of 1897 did make a temporary provision of that nature. It provided that the Governor should appoint three railroad commissioners, one to be “learned in the law,” one to be “of experience in the railroad business,” and the third to be “engaged in agricultural pursuits.” However, these appointees were to hold only until their successors were elected and qualified in the next general election in 1898. The Act provided for the election of three railroad commissioners at the next general election, and in subsequent elections, “without regard to vocation.” After the Act of 1897 was adopted, the Governor appointed as one of the three commissioners, Mr. H. E. Day, a prominent and highly respected citizen of Florida who was an experienced railroad man. He was elected by the people in 1898, but was defeated in the next election. So, Mr. Day was the only “railroad man” who was ever appointed to or elected as a member of the Railroad Commission. The
As we have seen, the Act now before us confers price-fixing powers upon an administrative board consisting of “three practical barbers,” and the Act by its language shows that it was adopted to protest and promote the economic status of a deservedly popular group, the barbers of Florida, by giving the commission the power to fix the price of barber services and thus prevent price-cutting and destructive comрetition among the barbers. I do not for a moment think that the purpose of the framers of this Act was to impose unreasonably high or exorbitant prices upon the general public. I am sure that the purpose of the Barber Sanitary Commission Act of 1939, Chapter 19183, and of the present Act, Chapter 20425, considered together, was to raise the standards of sanitation and efficiency in the conduct of the barber shops of Florida, as well as the educational and training prerequisites of the barbers themselves, and to protect and promote the economic status of the barbers, both the operating barbers and the employed barbers. But the Act does placе tremendous authority in the hands of this three-man commission, by which it can, acting with the power of the State of Florida behind it, put out of business any barber who charges less than the price fixed by the commission. And of course if this Act is upheld the legislature can later provide a commission of physicians to prescribe minimum fees to be charged by doctors to the public for their services,
Our Constitution contemplates the largest possible degree of individual freedom consistent with the general welfare.
In all other respects I concur in the opinion of Mr. Justice CHAPMAN, and in the concurring opinion of Mr. Justice WHITFIELD, as well as in the judgment of reversal.
BUFORD, J., dissenting:
I am unable to concur in the conclusion reached as reflected by the proposed judgment following the opinions prepared by Mr. Justice CHAPMAN and Mr. Justice WHITFIELD.
I can agree that in the main the legal principles applicable in cases of this sort are correctly stated in that opinion, but I think they have not been therein properly applied. As I construe the allegations of the appellant‘s bill therе is no averment that the prices and hours fixed by the challenged order are not reasonable, fair and justified when applied to the majority of the affected places of business within the fixed area, nor are there any allegations that the prices and hours are unreasonable and arbitrary as to the particular area in which appellants place of business is located. But the allegations are to the effect that the regulations are unreasonable, arbitrary and unlawful when applied to plaintiffs (a) because the plaintiffs while being within the affected area are in position to operate their particular place оf business at less expense than is required of others engaged in such business within the affected area and (b) because plaintiffs have a clientele which can be more conveniently served at hours different from those prescribed in the order or regulation.
If the order of the Barbers’ Sanitary Commission was contrary to the essential requirements of the law or it constituted a palpable miscarriage of justice and
In Miami Laundry Co. v. Fla. Dry Cleaning & Laundry Board, 134 Fla. 1, 183 Sou. 758, it is said:
“Courts are not authorized to adjudicate quеstions of public policy involved in such regulations or to conduct an inquiry into questions of fact pertaining to matters of policy, but where the Legislature has made such an investigation and determination, unless shown to be clearly arbitrary, erroneous or unwarranted, the courts will approve them. American Jurisprudence, Vol. 11, page 823.
“The Legislature is accordingly the judge of when the facts are such that a given business should be regulated under the police power or when it is affected with a public interest to such an extent as to require regulation. If the regulation enforced has some reasonable relations to the legislative purpose and is not arbitrary or discriminatory, the requirements of due process are satisfied. In its last analysis, government, regardless of the form it takes, is nothing more than an instrument to preserve an ordered society. Laws are nothing more than rules promulgated by government as a means to an ordered society.
“It would be a strange anomaly to hold that the complexities in society had become such that the
legislature was powerless to grant appropriate relief against abuses arising therefrom.”
If such allegations as these are held to be sufficient, if sustained by proof, to constitute a basis for being relieved of the necessity of complying with the order or to warant the court in granting injunction against the enforcement of the regulation, then such regulations can have no force and effect and the result would be that each place of business in a given area would be entitled to have prices and hours fixed according to its individual best interest. See Miami Laundry Co. v. Fla. Dry Cleaning & Laundry Board, 134 Fla. 1, 183 Sou. 758, 119 A.L.R. 956 and annotated notes.
The regulations such as are here under consideration are upheld only because of the paramount public interest and, while the regulations may, as is alleged, in this case, work a hardship on some individuals, they must nevertheles, be upheld and enforced to protect the paramount public interest. When the welfare of the individual runs counter to the welfare of the public, then the individual must yield to the public welfare. This principle is universally recognized.
Indeed, the power to fix prices and hours has been recognized to be vested in the legislature as a means to protect the public welfare. To uphold such legislation it is recognized that maximum prices may be fixed to protect the public against the cupidity of those who engage in the sale and distribution of essential commodities and this may be done although the right of individual contract is thereby limited. On the other hand, the power rests in the Legislature to fix minimum prices at which certain articles essential
The power of the Legislature in this regard was not always recognized. Its full recognition has come within recent years but that it does so exist is no longer open to question. See Miami Laundry Co. v. Fla. Dry Cleaning & Laundry Board, supra; Nebbie v. State of New York, 291 U.S. 502, 78 L. Ed. 940; 89 A.L.R. 1469, West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L. Ed. 703, 108 A.L.R. 1330; Herrin v. Arnold, 183 Okla. 392, 82 Pac. 997; Olsen v. Nebraska etc., 313 U.S. 236, 61 Sup. Ct. 862, 133 A.L.R. 1500; Tagg Bros & Moorhead v. U. S., 280 U.S. 420, 50 Sup. Ct. Rep. 220, 74 L. Ed. 524.
Stated in another way, the rule is that if plaintiff‘s place of business is located within the area as to which the regulations may reasonably and lawfully be applied, then plaintiff cannot be heard to say that the regulations are unreasonable and arbitrary when applied to him and to his place of business on the ground that because of peculiar circumstances surrounding the conduct of his business the regulation will work a hardship on him and because of which he can perform the service for less price and because of which he should be allowed to disregard the regulation as to hours.
This must be true because if the regulations are not applicable to one who is within the properly designated zone or area, then that one being excepted from the operation of the regulations destroys the uniformity of aрplication of the regulations and no one may be bound by the regulations. The recognition of a contrary rule would result in the abrogation of every principle upon which price fixing statutes have been upheld and would foster the cutting of prices and other unfair trade practices which such regulations are designed to eliminate.
If the place of business of the plaintiffs is so located that it should be excluded from the affected area the statute (Sec. 3A Chap. 20425, Acts of 1941) makes ample provision for that question to be presented to the Administrative Board for determination and if such determination be adverse, then review thereof by the courts may be had on certiorari.
There is nothing in the bill of complaint to show that the place of business of the complainant is not within the most favorable part of the affected area. There is nothing to show that the regulation is
It is my opinion that the action of the Circuit Court was without error.
ADAMS, J., concurs.