199 N.E. 187 | Ohio | 1935
Lead Opinion
The inquiry presented is whether the provisions of the ordinance requiring the closing of barber shops in Zanesville before eight o'clock a. m. and after six o'clock p. m. on Monday, Tuesday, Wednesday and Friday, and before eight o'clock a. m. and after twelve o'clock noon on Thursday and before eight o'clock a. m. and after eight o'clock p. m. on Saturday or days (other than Sunday) before certain named holidays, are within a proper exercise of the police power.
The first question requiring attention is the power of the municipality as to local police regulations generally. Section
In our judgment the word laws does not embrace municipal ordinances and therefore this provision defines the legislative power of the General Assembly of Ohio only. However, under the prevailing constitutional provisions all municipalities derive their power of local self-government and their local police power from the Constitution itself. Village of Perrysburg v.Ridgway,
Section
Section 7 of the same Article provides: "Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this article, exercise thereunder all powers of local self-government."
Zanesville is a charter or home rule city, and in the exercise of its local police power has the same authority to adopt and enforce ordinances as a city which has not adopted an independent charter, namely, "such local police, sanitary and other similar regulations as are not in conflict with general laws."
Are we confronted with such a conflict in the instant case? The Legislature of this state has passed a regulatory measure relating to barbers. Sections 1081-1 to 1081-27, General Code. This act, however, does not purport to cover hours of labor by barbers or the number of hours in a day or week barber shops may be kept open. This latter field has therefore not been preempted by the state law-making body and the provisions under consideration are not in conflict with general laws.
There is, therefore, no question of the authority of the municipality to pass this legislation provided it is within a proper exercise of the police power.
Under the Fourteenth Amendment of the Federal Constitution neither the state nor the municipality, which is an arm of the state, can "deprive any person of life, liberty, or property, without due process of law." Section
These constitutional provisions, however, are always subject to a valid exercise of the police power.
The specific problem involved in the instant case as stated by counsel for plaintiff in error in his brief is "whether the ordinance is reasonable and also how far the police power of the state of Ohio and a municipal corporation can go in regulating business hours."
What is said in the recent case of Nebbia v. New York,
"The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often beenheld, demands only that the law shall not be unreasonable,arbitrary or capricious, and that the means selected shall havea real and substantial relation to the object sought to beattained. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts. * * *
"The court has repeatedly sustained curtailment of enjoyment of private property, in the public interest. The owner's rights may be subordinated to the needs of other private owners whose pursuits are vital to the paramount interests of the community. * * *
"Laws passed for the suppression of immorality, in *291 the interest of health, to secure fair trade practices, and tosafeguard the interests of depositors in banks, have been foundconsistent with due process. These measures not only affected the use of private property, but also interfered with the right of private contract. Other instances are numerous where valid regulation has restricted the right of contract, while less directly affecting property rights.
"The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned." (Italics ours.)
Conditions and restrictions imposed upon business in the interest of the general welfare have taken many and various forms. State regulation prohibiting entirely manufacture of intoxicating liquor has been held valid. Mugler v. Kansas,
The fixing of hours within which various businesses may be carried on has been upheld: (laundries) Barbier v. Connolly,
The right of a state legislature to regulate hours of labor in bakeshops was denied in Lochner v. New *292 York,
Enough authority has been cited to make it plain that hours of business as well as hours of labor may be regulated and restricted in proper cases in the lawful exercise of the police power.
It is next in order to turn to provisions relating to barber shops. It seems to be universally conceded by the courts that the barber trade may be licensed and inspected in the interest of public health and many cases are collected upholding provisions of this character as constitutional and within the police power in 20 A. L. R., 1111, and 98 A. L. R., 1089.
In the case of People v. Logan,
While it is well settled that the barber trade has a *293
relation to public health and safety and may be regulated, yet in the instant case the contention is that the restriction of the hours barber shops may be open goes too far and so constitutes an unjustifiable interference with private rights. In many states it has been held that laws or ordinances which go beyond licensing and inspecting barber shops and limit the hours of business, are not within the valid exercise of the police power. Ganley v. Claeys,
These decisions in the main are based upon the theory that the legislation constitutes an unreasonable attempt to regulate lawful private business and limit the use of private property and has no proper relation to public health and sanitation. These views are grounded on the assertion that barber shops are sufficiently regulated and cleanliness secured by requiring certain standards through licensing and inspection. In two of these cases, Patton v. City of Bellingham, supra, decided December 6, 1934, and State, ex rel. Pavlik, v. Johannes,supra, decided March 15, 1935, there are vigorous dissenting opinions.
In Patton v. Bellingham, Blake, J., in his dissenting opinion, said at page 582: "* * * looking through the pretext and at the reality, the purpose of this ordinance is to curb competition of the chain store character in the barber trade. And it is every whit as justifiable as the laundry ordinance. The chain shops, by working two or three shifts, can keep open twelve, sixteen or twenty-four hours. In order to live, the *294 one or two chair shops must keep open for a like period. Thus through economic necessity, men in the latter shops are forced to work for a length of hours that deprives them of the leisure that makes life worth living. The power of the government to enact legislation to alleviate such conditions is inherent. Such legislation is grounded in the government's 'right to protect all persons from the physical and moral debasement of uninterrupted labor.' "
Some of these dissenting opinions emphasize the idea that barber shop closing ordinances are merely regulations of the hours of labor. There is more substance to this concept than appears at first blush. Barbering is not just like any other business. To merely limit the number of hours per day that a barber may be employed is to fail to protect other shops and especially the one-man shop against the evils arising from chain and all-night barber shops. Better be it said that fixing the hours the shop shall remain open may be to the legislative mind the only effective way to regulate hours of labor in this trade.
In Falco, Prosecutor, v. Atlantic City,
We do not regard this reasoning as "specious," especially in view of the fact that some barber shops are kept open only at night; and this suggestion leads us naturally to the consideration of another phase of the matter.
The judge of the municipal court who heard the case below points out in an opinion filed by him that the barbering done outside the hours prescribed by the ordinance was by residents of the city who worked during the day in other callings or at other labor and sought to supplement the earnings thus gained by running barber shops at night. It is apparent to the open mind that one who has toiled all day will not be fully capable of commanding the needed energy and attention to apply means of sanitation, and to answer the demands of cleanliness, which alone can insure the health of the barber's patrons.
Shall this court say to the municipality that regulatory measures are necessary and proper with reference to barber shops, but that none must be adopted which prevents a man who works during the day at other labor from plying the barber trade at night and thus risking the health of his patrons, when he is unfitted through the travail of a day already done to properly perform his duties as a barber?
There is another consideration which appeals to the legislator as well as to the jurist. Barber shops, which are usually respectable, and operated by law-abiding citizens, may become lounging places for the idle and dissipated, and so a menace to minors, and often in our cities the barber shop in front may be a blind for a den of thieves, professional gamblers, and racketeers behind. This situation is well known, and is even a matter *296 of common knowledge among policemen in our large cities. At the time a certain policy racket man and former bootlegging beer baron, was recently killed in New York City two of his henchmen were shot down in a midnight barber shop of a subway entrance. In the language of the street a "midnight barber shop" is one that keeps open all night. If barber shops may run at all times of the night the number of vicious places of this character will inevitably be augmented. If similar evils may be thwarted by legislation fixing hours that billiard and pool rooms may remain open, why should not the remedy of municipal legislation be applied in the case of barber shops? Such an ordinance therefore has a relation to public morals and safety.
In our judgment this court should not confine the police power within such limits that the public cannot be protected in any case when there seems to be a reasonable basis for exercising the legislative purpose to protect the public health, morals and safety. It has been pointed out that the law-making power is primarily the branch of government that should determine the need of such provisions. We quote again from the case of Nebbia v. New York, supra, at page 537: "So far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. * * * With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the *297 courts are both incompetent and unauthorized to deal. The course of decision in this court exhibits a firm adherence to these principles. Times without number we have said that the legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power."
We are of the opinion that the provisions of the ordinance under inquiry are neither unreasonable, discriminatory, arbitrary nor capricious, and that they bear a "real and substantial relation" to the object sought to be attained, namely, public health, morals and safety.
Constitutional guaranties must be observed and rights thereunder protected; on the other hand the rights of the public or a considerable part thereof must be conserved by restricting, through valid exercise of police power, the individual who seeks to operate his business so as to be a public menace. "Individual liberty" is a comprehensive term but man must be ever mindful that the liberty of one person should end where that of others begins. A business that is harmful to the many may be curbed by legislation within prescribed limitations to prevent the harm; and at the same time the right of property must always remain entitled to protection and subject to reasonable and proper regulation. The police power is not static and must ever be exercised in the light of changing conditions. To continue to apply principles in accord with circumstances no longer existing and to refuse to curtail new evils from fear of demolishing outworn precedents is to close the eyes to the necessities of the times and thus fail to give to constitutional guaranties their true import. Altered social surroundings may impart to long standing constitutional provisions a "new content and new meaning" and require *298 an application and interpretation previously unthought of. Where new evils detrimental to public health, morals and safety spring up due to the march of civilization, the evils must be met by proper police regulations and such regulations are of necessity within the police power. Such evils have now come to light in the instant case and to deny power to cope with them is to deny the effectiveness of the police power itself.
As we are of the opinion that the ordinance was a valid exercise of the police power, the judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, DAY and ZIMMERMAN, JJ., concur.
JONES and MATTHIAS, JJ., dissent.
Dissenting Opinion
In my whole judicial experience, covering thirty-five years' service on the Appellate and Supreme Courts of this state, I have seldom encountered a legal contention that presented as little judicial merit as the one advanced by the city of Zanesville in the present case. One reading the majority opinion may well wonder what the real crux of this controversy between the city and the barber is. In the syllabus no mention is made of Section
(1) The pertinent portion of that constitutional provision reads: "Laws may be passed fixing and regulating the hours of labor * * *; and no other provision of the constitution shall impair or limit this power."
On June 6, 1934, this court, in Village of Brewster v. Hill,
The foregoing section was adopted at the same time that Article XVIII, Section 3, was adopted. Two distinct subjects were presented in separate constitutional sections; one, the regulation of "the hours of labor" (Article II, Section 34), was confided to state legislative authority by the phrase"laws may be passed"; the other, the adoption and enforcement of "police, sanitary and other similar regulations" (Article XVIII, Section 3), was confided to the municipality. The provisions of Article II, Section 34, ex proprio vigore, definitely and separately seized the subjects — the fixing and regulating the hours of labor and the establishment of minimum wages — and made them amenable of state-wide legislative control where they should be, since, by the method of statutory control, such state scheme would have the merit of having uniform operation over all barber shops in the entire state under Article II, Section 26, and would not make licensed barbers criminals for an act done in one portion of the state which was lawful elsewhere.
The Municipal Court held the ordinance constitutionally invalid; the Court of Common Pleas, in affirming the Municipal Court, likewise held the ordinance invalid. When the case was submitted to the Court of Appeals, that court, apparently not being apprised of our decision in the case of Village ofBrewster v. Hill, *300 supra, rested its decision chiefly on Article II, Section 34, as a ground for reversal of the two lower courts. The appellate court held in effect that the phrase, "laws may be passed", included municipal ordinances. From statements made in oral argument before this court last October, it appeared that counsel for the city were not advised of our decision in theBrewster case, supra.
One of the chief duties of a court of dernier resort is to be consistent in its rulings, so that the bench and bar may ascertain the legal principles controlling decided cases. It is not an infrequent occurrence where lawyers cite the same case in support of their divergent views. The dissenting members of this court adhere to the legal principle announced in Villageof Brewster v. Hill, supra, which distinctly held that the phrase, "laws may be passed", applies to state law only and not to municipal ordinances, as in the instant case; and where any Ohio court so construes the phrase, "laws may be passed", so as to read, "laws (and ordinances) may be passed, fixing and regulating the hours of labor", such a construction is equivalent to an amendment of Section 34, Article II, by judicial fiat.
(2) While we think the foregoing conclusion is absolutely dispositive of this case, there is another and compelling reason why the judgment of the two lower courts should be affirmed and the appellate court reversed. We have always held that police and sanitary regulations are subject to control by state and municipal authorities and, where a state has not acted, a home-rule city may enforce reasonable regulations which are not in conflict with state law. These principles have been announced so often by this court that it seems unnecessary to cite cases in their support. But that feature does not reach the fundamental legal point in issue in this case. The trade of barbering is, like many others, a lawful business. The question to be determined is whether a city council can impose upon the shop's owner or upon his employees, in invitum, *301 certain, particular hours of a day which they must employ, and those only, in the conduct of such business. Were the question of inspection or sanitation of the shop in issue in this court, the right of regulation would not be questioned; but the police power does not enter the picture in this case. Section 10 of the ordinance fixing the hours of labor in Zanesville barber shops does not purport to be an inspection or sanitary measure. It is purely an hour-fixing ordinance. Many of our fields of activity are subject to the exercise of the police power. In this state, filling stations, restaurants, hotels, factories and manufacturing establishments are subject to the exercise of police power; but it does not follow that those establishments are subject to municipal regulation in respect to the particular hours when labor is to be employed. Neither the N. R. A. in the heyday of its activities nor the American Federation of Labor has asked for such drastic regulation of American labor and industry. While they may have sought a five or six-hour day or a thirty-hour week, they sought no legislation prescribing when those particular hours or days should be employed.
This subject is not a new one in this country. Since the year 1923 the courts of final jurisdiction of seven different states have passed upon this exact question, and each has denied the constitutional power of municipalities to fix the hours of labor in barber shops. The case of Falco, Pros., v. AtlanticCity,
As heretofore stated, the courts of last resort in seven states have passed upon the exact question we have under consideration and each has held that an ordinance regulation prescribing the hours to be employed in a barber shop is unconstitutional, unreasonable and void. Those states are Georgia, Wyoming, Louisiana, Mississippi, California, Washington and Minnesota.
In the Georgia case, Chaires v. City of Atlanta,
In State, ex rel. Newman, v. City of Laramie, 40 Wy., 74,
In the case of City of Alexandria v. Hall,
In the case of Knight, Chief of Police, v. Johns,
In the case of Ganley v. Claeys,
In the case of Patton v. City of Bellingham,
The latest case we find dealing upon this exact subject, decided March 15, 1935, is State, ex rel. Pavlik, v. Johannes, reported by the Supreme Court of Minnesota in
I do not often quote from cases at such length and do so now merely to show the general unanimity of decisions among the states of the Union upon this grave and important legal question. Despite the fact that, since 1923, the courts of last resort of all those states have held these ordinances void, the majority opinion quotes the views of a dissenting judge in support of such an ordinance; but I rest my decision upon the well-considered conclusions reached by the courts of those seven states, which I consider to be a restatement of the law in our American jurisprudence.
This ordinance may be such that would receive the approval of a Soviet or Fascist regime; but its Alpha and Omega amounts to a regimentation of both labor and industry. Why are the closing hours at six o'clock p. m. or on Thursday afternoons so sacrosanct? The public welfare is the welfare of the people. They best know when they desire such service and the trade can be depended upon to render that service at the hours the public demands it. Thousands of neighborhood shops exist in Ohio communities having many more thousands of customers employed in daytime work in offices, shops and factories, customers who have little or no opportunity of seeking a barber's service before *305 six p. m.; nor have they such opportunity before eight a. m., when they must be at work or on their way thereto. Shall that portion of the public be deprived of their liberty of action by the ipse dixit of some municipal council? I concur in the conclusions reached by the courts named in this dissent and hold that the ordinance in question is arbitrary, unreasonable and places an undue restraint upon the personal liberties of the public and upon those engaged in the pursuit of a lawful business.
Dissenting Opinion
The majority decision is contrary to well-established principle and the opinion supporting it is against the overwhelming weight of authority. The ordinance involved is one dealing with the occupation of barbering, which is a lawful trade or business. The sole question presented by the demurrer is the validity of Section 10 of the ordinance, which makes it an offense to operate a barber shop at any time other than the precise portion of the day fixed in the ordinance. It seeks to impose a penal restriction not upon the number of hours per day one may engage in the employment or practice of barbering, but prescribes the precise hours during which such business may be conducted and makes it unlawful to operate or conduct or maintain any barber shop in the city at any time other than the particular periods designated.
If we look to the further provisions of the ordinance, we find no requirements as to sanitation and nothing therein making it in any sense a sanitary measure. If any purpose is indicated thereby other than to compel compliance with an arbitrarily prescribed uniform period of the day during which the occupation or practice or trade or business of barbering may be carried on in the city, it is the exaction of a fee for a license in addition to that now required by statute.
If, however, this ordinance may be regarded as a regulation of the hours of labor, it is unauthorized for *306 the reason that that power has been specifically conferred upon and limited to the law-making power of the state by the provisions of Section 34 of Article II of the state Constitution.
The concession in the majority opinion that "the word 'laws' does not embrace municipal ordinances and therefore this provision defines the legislative power of the General Assembly of Ohio only" is decisive of this case and requires the reversal of the judgment of the Court of Appeals.
