Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN Say 20, 1939 Lb. W. J. Ddrtez, Secretary

State E3oard of Barber EXamlnare

Austin, Texas

Denr'Slr:

ae to whetti- or or not

only a health die tools, uupplies, or et&- iII Said 8hOpB Qr~~lOPll, them to,work in aaid &@pa re unless said barber or logist or ODhm person has 1004 test showing freedom from otta or oommudoable biosaeo and he6 in h.ia poaseeeion a R&etra- tion aa Identiiioation GertifY.oate mentioned in aaid Health~Certiri,oate Ordinanoe; nor shall any barber, mm- metologiet or suoh other person work in a barber shop OF beauty parlor or *2 Zr. it. J. Dartez, Xay 2C, 1939, Page 2

pursue his trade in connection with barbering or cosmetology in said Cit,y unless he has had said blood..test and has'in hXs possession. such regis- tration and Ideatiiicat%on Certifi- cate. Such certificate shall be *alid for six months only fromdate of ls- suarnce .”

We assIMI) your doubt.ot.the forge of the'above section rests on the ~aonetltutloneIi~y or the attempted regulation.

The power to re@ate~*r the protqa-

tfon of publio health in this day of prophylaxis is established beyond doubt. The aonetltutlonal authorlty.of a- munialpal borparatlon in Tenw to regulate the profession of barbers from a~ ea@itary or health etaudpolnt: has been eetablfehed lntbe case of Eenzal v. city of San Antonlo, 221 SW 237, Cot& of Civil Appeals (error rerueed).

See also 20 A.L.R., page 1108.

In the instant qplmlon we have before

us the right of a aanialpal aarparation to regu' late'aa oaaupatlon after the state hm3 exeralsed tbs le&&etlve control over that oaaupatlon, The aourts or thiri state have held that a business ar oaaupatiti lloensed by state law mss be rem- Unit, by munlaipal late4 rith5.n I reasonable ordisnnaa, it the regulation does not impids the state license, &s "ExPart.e right under the Rrwer,a I.52 SY 106S, a Texas case.

Let us omsiiler~kur etate regulation

ot barbers and aoexmtologlsts with referenaa to phyaiaal examlnatlon. Our ~Tera8 Barber Lau, arti- hle 734a, eeotion 21, subseotion (1) of our'Pena1 Code reads as fol~ws:

"No certificate shall be isauad or *3 I&-. Ii. Jo. Dartez, &.y 20, 1939, Psge 3

renewed unless and until each appli- cant shall'present a health certifi- oate rrozn a regular practicing medical doctor showing that the applicant Is free from any kind of Itieotious or contagious diseases, tuberaulosls, oommunicable diseases, free from the use of euy kind of mDrphIne, cooaine, or other habit-farming drw, or a habitual drunkard and that said ap- plioant shall make affidavit to said medical examinetion that all of said fact6 are true."

The above section requires an eremin- atlon onae a yeer and a health certificate is the require-t of'tha eppliaent. Thus, a blood test Is not necessary to oolpgly with tlm state statute, however, a aertiticete evldemaimga blood test would satisfy the statsrequirement. The alty of Midland, a homrs rule alty, has attempted to etrengthen the requirement as ta the~physiael aondition or barb&s and aosnmtologists. In order to comply with the aity ordinenea It will be necesssry for a barber to have two or not more than three blood tests a year, oae of dish may also be uaed'to qualiry for a state liaense.

Our state law on haird8eseara snd oos- mstologists, art&ale 734b, seotion 10, aubseation (b) of our Penal Code reads ae tollomr:

*All appliaatione for examins- tion and for llaanee shall be acaom- panied by a health certificate by a regularly liaensed doctor of medicine, showing the applicant to be free from any crontagious or Infectious diseasea as determIned by a general examIna- tion and Wasserman blood test.* *4 tir. X. J. Dartez, IGay 20, 19S9, ?age 4

The persons following that profession

tire presently required to hjve a Kasseraan blood test once a year. The Xidland Ordinance will require another such test six months frox the dnte of the last one.

The oourts of this and other states are wont ti sustain any reasonable munioipal regulation for the protection of health and the preservjtion of the lives of our citizens. This is true, thou&h the municipal regulation goes further than state regulation. See 43 Corpus Suris p. 220 axxl Gulf C. k. 9. P. R'. Co. v. Calvert, 32 SK 246, e-or refused. For other authorities holding that.a city may enlarge the requirements of a statute where the regulation moves In the same direction ati not oounter to the state.law, and that suoh regulation ie consistent wit&the state law, see Olson v. Plattville 91 A.L.R. 308 and Spitler v. 'km of b¶uneter 115 A.L.R. 1395.

lkour o lkonthe attempted regula-

tion Is oonsistent ,ith the purpose of'the legis- Iv '. lature to proteot ihe publIa health from the dangers of.skin inieotione, scalp dletiases or any other oontagioue diseases. It go68 further than the state law, but moves in the same direa- tion, ndt.oouuter to it,. axl has a co&mendable purpose.

Wails our state law& have not Uder- taken to regulate portera, they *'regulate as- sietents to barbers and aometologists and. require physical examinations of those peraom. This _ . . . _ -._ attemptea regulation 18 a Ilealth meaeure ana tne

requiremat of blood teeta of porters handling the tools or supplies of a .ahop.Is a reasonable one. It should be a ~timulue to the present ef- forts of State Health Authorities, to eradicate social diseases.

Sr. X. J. Dartez, 6tay 20, 1939, Page 5

~.e are faced with another test of this atteropted regulation. Does it invade a field reserved to itself by our legislature by reason of state legislation upon this mtter?

The ordinance under consideration is designed as a health measure. The power of a city to pass ordinances for the protection of health after the state has passed similar laws seems to rest upon their conformity with the state law upon the m+~ subject. See Mantel v.

State, 117 SW 855.

The aity or Mldland has *posed no sort

of tax upon the barbers Or cosmetologists$ it Zlk8S PO f'8~Uir8IU8at Of mDY?al Character Op Of th8~trad8 name Used and it does not~att8m& to PSS UpOU.the GOIQeteUOy Of the per&Xl tO~mCtiO8 the prOi8SsiOL Those matters 'are left to the controlling State Boards authorized by statute to determine those facts. w8 do IlOt b8li8V8 that the 18gi8latU8 by 8MOting al-tic18 734a and aI%iOle 734b Of Our &HLa) COf38~iUt8ild8d t0 or did usurp the exolussivs power to protsot the publio health in barber and beauty shops. 98 attempted regulation is not ~violative Of stat8 regulation, but is in harmon8yrith it. .It la the opinfoa of this depar$ment

that seotlon 4a or the City Ordinance or Midland, Texas as submitted lx& yoUr letter or April 27, 1939 is a valid regulation and IP obligatory Up&l the p8rtXOUEi WIRd therein.

Toum vary truly ATTOBKgY GEt?XRAL OF TECAS (signed)

BY