Salisbury Beauty Schools v. State Board of Cosmetologists

O’Donnell, J., delivered the opinion of the Court. In 1935 the Legislature by Chapter 282 enacted twenty-six new sections to Article 43 [§§ 395-420 inclusive] of the Annotated Code under the title “Health”, Sub-title “Hairdressers and Beauty Culturists.” 1 The title to the Act proclaimed these sections necessary “To promote the public health and safety by providing for the examination and registration of those who desired to engage in the occupation of Beauty Culture, and to regulate the occupation of hairdressers and beauty culturists; to create a State Board of Hairdressers and Beauty Culturists for the examining and licensing of persons engaged in or teaching said practices, to secure the better education of such practitioners and to provide rules regulating the proper conduct and sanitation of hairdressing so as to prevent the spread of contagious and infectious diseases “Beauty Culture” was described as including: 2 “. . . any and all work done for compensation by any person, which work is generally and usually performed by so-called hairdressers, cosmetologists, cosmeticians, beauticians or beauty culturists and demonstrators of beauty preparations or equipment, and however denominated in ³⁶ so-called hairdressing and beauty shops ordinarily patronized by women, which work is for the embellishment, cleanliness and beautification of women’s hair, such as arranging, dressing, curling, waving, permanent waving, cleansing, cutting, singeing, arching of eyebrows, dyeing of eyebrows and eyelashes, bleaching, coloring, or similar work thereon and thereabout, and the removal of superfluous hair, and the massaging, cleansing, stimulating, exercising, or similar work upon the scalp, face, arms or hands, by the use of mechanical or electrical apparatus or appliances or cosmetics, preparations, tonics, antiseptics, creams or lotions or by any other means, and of manicuring the nails of either sex, which enumerated practices shall be inclusive of the term beauty culture but not in limitation thereof.” 3 Included among those enactments was a section captioned “Student Practice Upon the Public for Pay” which prohibited any school of beauty culture from making any charge “whatsoever for treatment by its students or for materials used in such treatment.” In 1947 the Legislature authorized clinical work by students, after the student had completed 500 hours of fundamental training. The section prohibiting any charge “whatsoever” for treatment by students in schools of beauty culture—the section here in controversy was amended to read as follows: “No school of beauty culture shall, directly or indirectly, charge any money whatsoever for treatment by its students and may charge only for the actual cost of materials used in such treatments, but no charge shall be made for service supplie[s] (sic).” 4 ³⁷ In 1961 the General Assembly undertook to define a “student” as one “engaged in learning or acquiring the knowledge of the practice of hairdressing and beauty culture for tuition or fee in a duly authorized school”; it defined a “school of beauty culture” as a “premises where such instruction was given a student for tuition or fee.” It discarded the mundane terms of “hairdressers and beauty culturists” by providing that wherever that terminology had been used in the statute those who pursued such a calling were thereafter to be scientifically classified as “cosmetologists.” ** 5 At the same session, in supplementation of the prohibition against such schools of beauty culture charging “any money whatsoever for treatment by its students,” the General Assembly enacted a new section [Art. 43, § 537 (b), Ann. Code (1971 Repl. Vol.)] which provides: “It shall be unlawful for any school of beauty culture to advertise a list of prices for services to be performed by students other than by posting such a list within the school building.” Despite this legislative history and revision no steps were apparently taken to enforce Art. 43, § 537 (a) until March 6, 1962, when the members of a newly-constituted Board of Cosmetology, by letter, admonished the various private schools of beauty culture within the State “to reduce their clinic prices to ‘cost of materials’.” The appellants, comprising fifteen (15) separate privately operated schools of beauty culture and the Maryland Association of Beauty Schools, Inc., on March 15, 1963, in the Circuit Court No. 2 of Baltimore City, filed a petition requesting that Art. 43, § 537, be declared unconstitutional and the Board of Cosmetology be enjoined from enforcing it.

After a hearing the lower court (Jones, J.), on April 10, 1963, without prejudice, issued an interlocutory injunction (and maintained the status quo) ³⁸ against the enforcement by the Board of the statute, pending decision on the merits. See Md. Rule BB70 c. After a demurrer on behalf of the Board had been overruled (Perrott, J.) and its Answer filed, both the appellants and the Board filed Cross-Motions for Summary Judgments—each alleging that there was “no genuine dispute as to material fact.” After a hearing on the respective motions—but before they were decided—the appellants, on January 12, 1972, filed a petition to amend their complaint and to ask, by way of alternative relief, that the court pass an order construing the phrase “the cost of materials”, “so as to allow a reasonable schedule of prices to be charged by the beauty school clinics.” 6 The Chancellor (Cardin, J.) on January 17, 1972 by his memorandum and decree, denied the appellants’ Motion for Summary Judgment, granted the Board’s Motion and declared that the provisions of Art. 43, § 537 (a) were constitutional. At the same time, “at the request of counsel”, the court retained jurisdiction over the subject-matter relating to any “schedule of prices” and referred that issue to the Board “in order that they may promulgate rules and regulations by which the ‘cost of materials’ may be determined.” The appellants, from the decree upholding the constitutionality of the statute, here contend: (a) that it was error for the trial court to have denied their Motion for Summary Judgment because the pleadings “established a genuine dispute as to material facts”, (b) that it was error to grant the Board’s Motion for Summary Judgment upon the uncontroverted facts presented by the pleadings, (c) that Art. 43, § 537 (a), limiting the charges made in beauty school clinics to “cost of materials” is unconstitutional and invalid, and (d) that the State Board of Cosmetology is estopped, or barred by ³⁹ laches, from enforcing the statute “by virtue of the prior rules, regulations and policy of the Board.” (a) and (b) RULING ON MOTIONS FOR SUMMARY JUDGMENT The appellants, in support of their contention that their Motion for Summary Judgment was improperly denied and the Board’s Motion erroneously granted, contend that no allegations of facts were made by the Board attempting to controvert the allegations set forth in their petition; that the “regulations and practice of the Board should have been given weight in view of the reliance [thereon] by the beauty school industry for a period of twenty-eight years”; and that the Board had failed to controvert the appellants’ allegations that they had expanded their facilities, made improvements and established new schools in reliance upon the practice authorized by the Board, nor was their allegation controverted that in the event they were limited to charging the “cost of materials”, then tuition would have to be increased.

The Board, by its Answer, admitted the majority of the allegations made by the appellants, but denied that it “by its rules and regulations had allowed the schools to reflect in their charges the cost of administration and the cost of materials.” It was further denied that the provisions of Art. 43, § 537, were not a valid exercise of the police power and denied that the appellants would suffer “irreparable injury.” As to the remainder of the appellants’ allegations, the Board pleaded that it was “without knowledge”—amounting to a denial, under Maryland Rule 372 a 2. 6a The appellants earnestly argue that the Answer filed by the Board established a genuine dispute as to material facts and it was thus error to grant the Board’s Motion; by the same logic—though they allege the pleadings establish a genuine dispute as to material facts—they contend that they were entitled to summary relief.' ⁴⁰ The function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not an issue of fact is to be tried and if there is none, to cause judgment to be rendered accordingly. Greenwell v. American Guaranty Corp., 262 Md. 102 , 277 A. 2d 70 (1971); Trustees of Broadfording Church of the Brethren v. Western Maryland Railway Co., 262 Md. 84 , 277 A. 2d 276 (1971). The purpose of the hearing on the motion, at the trial level, is to decide if a real dispute as to material facts does exist and if the pleadings, depositions, admissions and affidavits (if any) show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law, summary judgment should be granted. Brown v. Suburban Cadillac, Inc., 260 Md. 251 , 272 A. 2d 42 (1971).

A bare allegation in a general way that there is a dispute as to material facts is never sufficient to defeat a motion for summary judgment. Melbourne v. Griffith, 263 Md. 486 , 283 A. 2d 363 (1971); nor is the mere filing of an Answer to a bill of complaint necessarily fatal to a motion for summary judgment, particularly where the Answer does not warrant a finding that there is a genuine dispute as to material facts between the parties. Burrell v. Frisby, 212 Md. 181 , 129 A. 2d 75 (1957). Even where it is shown that there is a dispute as to a fact, when the resolution of that factual dispute is not material to the controversy, such dispute does not prevent the entry of summary judgment.

Shaffer v. Lohr, 264 Md. 397 , 287 A. 2d 42 (1972); S. L. Hammerman Organization, Inc. v. Community Health Facilities, Inc., 264 Md. 37, 50 , 284 A. 2d 599, 605 (1971); Meola v. Bethlehem Steel Co., 246 Md. 226, 239-40 , 228 A. 2d 254, 262 (1967); a dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment. Daniel v. Kensington Homes, Inc., 232 Md. 1, 13 , 192 A. 2d 114 (1963); Parklawn v. Nee, 243 Md. 249, 254 , 220 A. 2d 563 (1966); Rooney v. ⁴¹ Statewide Plumbing, 265 Md. 559, 564 , 290 A. 2d 496 (1972). As aptly stated by Judge Powers, for the Court of Special Appeals, in Knisley v. Keller, 11 Md. App. 269, 272-3 , 273 A. 2d 624 (1971), “. . . The function of the trial judge [in connection with a motion for summary judgment] is much the same as that he performs at the close of all the evidence in a jury trial when motions for directed verdict or requests for peremptory instructions require him to decide whether an issue requires resolution by a jury, or is to be decided by the court as a matter of law.” See also Rooney v. Statewide Plumbing, supra.

In reviewing the propriety of the granting of a summary judgment our concern is primarily with deciding whether a factual issue does exist which is material to the resolution of the controversy. See Brown v. Suburban Cadillac, supra; Rooney v. Statewide Plumbing, supra. Where the record shows that there is no such genuine dispute as to any material fact necessary to resolve the controversy as a matter of law, and that the movant is entitled to judgment, the entry of summary judgment is proper. S. L. Hammerman Organization, Inc. v. Community Health Facilities, Inc., supra.

As a general rule constitutional questions are not to be dealt with abstractly and this court will not decide constitutional questions except when concrete and specific issues are raised by actual ones. See Hammond v. Lancaster, 194 Md. 462, 471 , 71 A. 2d 474, 479 (1950) (Motion to Stay denied, 339 U. S. 908 ); Tanner v. McKeldin, 202 Md. 569, 580 , 97 A. 2d 449, 454 (1953); Givner v. Cohen, 208 Md. 23, 37 , 116 A. 2d 357, 363 (1955); State v. Cherry, 224 Md. 144 , 167 A. 2d 328 (1961); Board of Public Welfare v. Myers, 224 Md. 246, 252 , 167 A. 2d 765, 768 (1961). The provisions of the Uniform Declaratory Judgments Act (Art. 31A) have been invoked to obtain a declaration whether or not a statute is constitutional, when the complainant alleges that he will be directly damaged, in person or in property, ⁴² if the statute is enforced; that such enforcement will result in infringement of his constitutional rights and that the defendant, who is charged with the duty of enforcing the statute, is enforcing it, or is about to enforce it. Davis v. State, 183 Md. 385 , 37 A. 2d 880 (1944); Tanner v. McKeldin, supra; Liberto v. State’s Attorney, 223 Md. 356 , 164 A. 2d 719 (1960); Bruce v. Director, Dept. of Chesapeake Bay Affairs, 261 Md. 585 , 276 A. 2d 200 (1971).

In State’s Attorney v. Triplett, 255 Md. 270 , 257 A. 2d 748 (1969), and in Hunt v. Montgomery County, 248 Md. 403 , 237 A. 2d 35 (1968), the summary judgment procedure was used in actions brought under the Uniform Declaratory Judgments Act to pass upon the constitutionality of statutes. In Triplett, supra, Judge Barnes, for the Court, after pointing out that “. . . every presumption favors the validity of the statute and it will not be held to be unconstitutional and void unless it plainly contravenes a constitutional provision,” stated: “In our opinion, the Chancellor should not have granted a summary judgment declaring the Act unconstitutional as denying due process of law and the equal protection of the law. There may be cases involving statutes where the denial of due process of law and of equal protection of the law are clear on the face of the statutes or upon consideration of quite limited evidence, but, in our opinion, the statute involved in the present case is not of this type, especially in view of the issues arising in regard to the possible restrictive effect of the provisions of the title of the Act upon the construction of the language in the body of the Act.” (Emphasis supplied) [ 255 Md. at 285-6 , 257 A. 2d at 755 .] In Hunt v. Montgomery County, supra, a bill for declaratory relief was heard on demurrer, by agreement of the parties; a declaratory decree was entered declaring ⁴³ the rights of the parties and entering judgment for the defendants without the demurrer having been ruled upon. We noted there that since there was no genuine dispute of fact, and as the answer to the contentions turned solely on questions of law, the declaration entered by the court could be treated as a summary judgment.

Chief Judge Hammond, after citing Borchard, Declaratory Judgments, 369-70 (2d Ed. 1941), stated: “Borchard, op. cit. p. 432, says further: “A question has been raised by a series of cases in New York, whether a motion to dismiss a complaint or a motion for judgment on the pleadings may be entertained and granted in an action for a declaratory judgment, or whether, as in Neubeck v. McDonald [ 220 N.Y.S. 761 ], the trial court, in the exercise of its discretion, should refrain from entertaining such a motion until the trial shall have clarified the facts and enabled the court to determine whether the complaint has any basis in fact or law. Since such motions are entertained in actions for coercive relief, there is no reason whatever why they should be rejected in declaratory actions. Where motions are granted it indicates that the court either finds no ‘cause of action’ or lacks jurisdiction or can decide on the face of the pleadings, without the taking of evidence, that either plaintiff or defendant is right, a decision which is appealable. On the other hand, where the court refuses to entertain or grant the motion, it is apparent that the court is unable to determine the issue presented by the motion on the complaint or the pleadings and wishes to hear evidence from both sides before making up its mind.

There is no basis, therefore, for the suggestion that the declaratory action in this respect differs from any other proceedings.” “In the case before us we think Judge Clapp ⁴⁴ permissibly found that there was no genuine dispute of fact and that the answer to the contentions of the parties turned solely on questions of law which the parties had agreed to submit to the court. This being so, there was every reason to declare how the controlling law governed the essentially undisputed facts. American Auto Ins. Co. v. Indemnity Co. (E. D. Pa.), 108 F. Supp. 221 , aff’d 228 F. 2d 622 . “The appellant’s present claim that there existed a genuine factual dispute is inaccurate.

There is no dispute as to the operative facts which led to the filing of the petition and which are therein alleged. The claimed dispute is as to legislative and administrative history, and the only facts as to these proffered are not challenged by the appellees and, as we indicated earlier, lend as much support to the appellees’ interpretation of the statutes as they do to that of the appellants.” [ 248 Md. at 413-414 , 237 A. 2d at 40 .] Although the appellants alleged in their petition that “since 1935, by its rules and regulations,” the Board has allowed the schools to reflect in their clinic charges the cost of administration, including the cost of materials, and alleged in their Motion for Summary Judgment that such charges “were approved by regulation and practice of the Board,” no copies of any such purported rules or regulations were filed as exhibits accompanying their petition or Motion. Indeed, we take judicial notice, as we did in Wrenn v. Vincent et Vincent of Langley, Inc., 235 Md. 466 , 201 A. 2d 768 (1964) (involving an identical contention), that no such rules or regulations have as yet been filed with the Clerk of the Court of Appeals pursuant to the provisions of Art. 41, § 9 and § 246 of the Annotated Code. In Wrenn, supra, we stated: “. . .

We may note that Code, 1963 Supp. Art. 43, § 548, empowers the State Board of Cosme ⁴⁵ tologists to ‘prescribe such sanitary and safety rules as it may deem necessary, with particular reference to the precautions necessary to be employed to prevent the creating and spreading of infectious and contagious diseases,’ and that Code 1957, Art. 43, § 544, gives the Board power to ‘prescribe reasonable rules * * * generally for the conduct of persons * * * affected by this subtitle.’ We may take judicial notice that no rules under this provision (or its statutory precursors) have been filed with the Clerk of the Court of Appeals pursuant to Code, 1957, Art. 41, §§ 9 and 246.” [ 235 Md. at 470, n. 2 , 201 A. 2d at 770 .] The appellants’ reliance upon the alleged existence of rules and regulations of the Board, to say the least, is misplaced. It must additionally be pointed out that the parties in their Cross-Motions for Summary Judgment each represented to the court that there was “no genuine dispute as to any material facts in this matter.” 7 The Chancellor, in his memorandum, stated: “All parties having assured the court, both in their oral arguments and Memoranda, that there is no genuine dispute as to any material fact, disposition is forthwith made upon those Motions.” 8 The actions of an attorney within the scope of his employment are binding upon his client under the ordinary principles of agency. McGinnis v. Chance, 247 Md. 393, 399-400 , 231 A. 2d 63, 67 (1967); Bob Holding Corp. v. Normal Corp., 223 Md. 260 , 164 A. 2d 457 (1960); 7 C.J.S., Attorney and Client, § 79 (1937); and 7 Am.Jur.2d, Attorneys-at-Law, § 100 (1963). This is particularly true concerning the stipulation of counsel in open court.

See Posko v. Climatic Control Corp., 198 Md. 578 , 84 A. 2d 906 (1951); citing Bloom v. Graff, 191 Md. 733, 737 , 63 A. 2d 313, 315 (1949); 9 Wigmore, Evidence ⁴⁶ (3d ed.), § 2594; 2 Jones, Evidence (2nd ed.), pp. 1759, 1761. The affirmative representation by appellants’ counsel in the trial court that there was “no dispute as to any material facts” and the concessum thereon is determinative of this contention. 9 Notwithstanding the lack of evidence of the promulgation of such alleged “rules and regulations” relied on by the appellants, and notwithstanding the concessum that there was “no genuine dispute as to any material facts”, our independent appraisal of the record convinces us that the resolution of whatever factual dispute may have been raised by the pleadings was not material to the legal issue, as to whether or not Art. 43, § 537 on its face was a valid exercise of the police power of the State. The pleadings and the Motions presented the lower court with a “concrete and specific issue.” It was not error for the trial court, without the taking of testimony concerning the allegations made by the appellants to render summary judgment on the limited issue of the constitutionality of the Section on its face. (c) THE CONSTITUTIONALITY OF THE STATUTE The appellants in their attack upon the constitutionality of Art. 43, § 537 (a), contend that it is an invalid exercise of the police power because it has no “relationship with the health, safety or welfare of the people”; that as a “price control” statute it imposes unreasonable and unnecessary restrictions arbitrarily interfering with private business and lawful occupations and that it is discriminatory in that no such equal restrictions are imposed “in the barber school clinics.” The statute reads as. follows: “§ 537.

Student practice upon the public for pay prohibited (a) It shall be unlawful for any school of ⁴⁷ beauty culture to permit its students to practice beauty culture upon the public, under any circumstances, except by way of clinical work upon persons willing to submit themselves to such practice after having first been properly informed that the operator is a student and after the student has completed 500 hours of fundamental training. No school of beauty culture shall, directly or indirectly, charge any money whatsoever for treatment by its students and may charge only for the actual cost of materials used in such treatments but no charge shall be made for service supplie [s].” 10 In Allied American Mutual Fire Ins. Co. v. Comm’r of Motor Vehicles, 219 Md. 607 , 150 A. 2d 421 (1959), Judge Hammond (later Chief Judge) concisely defined the "police power” of the State. He stated: “. . .

Essentially the police power of a state is no more than the power to govern. Baltimore Gas Co. v. State Roads Comm., 214 Md. 266, 279 ; Capital Transit Co. v. Bosley, 191 Md. 502, 514 . The power justifies regulations designed to promote the public convenience or the general prosperity, as well as those to promote public safety, health and morals, since it extends to the satisfying of great public needs and the promotion of the general welfare. Maryland Coal and Realty Co. v. Bureau of Mines, 193 Md. 627 ; Bacon v. Walker, 204 U. S. 311 , 51 L. Ed. 499 ; C. B. & O. Railway & Drainage Comm’rs, 200 U. S. 561 , 50 L. Ed. 596 ; Nebbia v. New York, 291 U. S. 502 , 78 L. Ed. 940 .

The current thinking of the Supreme Court would seem to be illustrated by Williamson v. Lee Optical Co., 348 U. S. 483 , 99 L. Ed. 563 , where the Court, in effect, held that state legislation, imposing reg ⁴⁸ ulations under the police power to correct an evil at hand, is valid if it might have been thought by the legislature that the particular measure was a rational way to correct it.” [ 219 Md. at 616-7 , 150 A. 2d at 427 .] See also Bruce et al. v. Director, Dept. of Chesapeake Bay Affairs, 261 Md. 585, 596 , 276 A. 2d 200, 206 (1971). The Legislature exercises a large discretion in determining what the public welfare requires, in what may be injurious to the general welfare of the public and also what measures are either necessary or appropriate for the protection and promotion of these interests. A. & H. Transp., Inc. v. Mayor and City Council of Baltimore, 249 Md. 518 , 240 A. 2d 601 (1968); Maryland Coal and Realty Co. v. Bureau of Mines, 193 Md. 627 , 69 A. 2d 471 (1949); Davis v. State, 183 Md. 385 , 37 A. 2d 880 (1944). The exercise by the Legislature of the “police power”, of course, is subject to review by the courts, but the exercise of such power will not be interfered with unless it is shown to be misused or abused, or where it is shown to be exercised arbitrarily, oppressively or unreasonably.

Maryland Coal and Realty Co. v. Bureau of Mines, supra; McBriety v. City of Baltimore, 219 Md. 223 , 148 A. 2d 408 (1959); Davis v. State, supra; Liberto v. Mayor and City Council of Baltimore, 180 Md. 105 , 23 A. 2d 43 (1941). 10a The wisdom or expediency of a law adopted in the exercise of the police power of the state is not subject to judicial review and such a statute will not be held void if there are any considerations relating to the public welfare by which it can be supported. Davis v. State, supra; State v. J. M. Seney Co., 134 Md. 437 , 107 A. 189 (1919). Such a statute is presumed to be valid and one attacking its validity has the burden of affirmatively and clearly establishing its invalidity; every intendment is in favor of the validity of the statute where there is a ⁴⁹ substantial relationship between its object and the means employed to attain that object. Fuller v. County Commissioners of Baltimore County, 214 Md. 168 , 133 A. 2d 397 (1957); Grant v. Mayor and City Council of Baltimore, 212 Md. 301 , 129 A. 2d 363 (1957).

If any state of facts reasonably can be conceived that would sustain the constitutionality of the statute within the exercise of the police power, the existence of that state of facts as a basis for the passage of the law must be assumed. Gino’s v. Baltimore City, 250 Md. 621, 637 , 244 A. 2d 218, 227 (1968); Eutaw Enterprises v. Baltimore City, 241 Md. 686, 693 , 217 A. 2d 348, 353 (1966). In Dobres v. Schwartzman et al., 191 Md. 19 , 59 A. 2d 684 (1948), in holding that the Baltimore City Zoning ordinance prohibited the operation of a beauty parlor in a residential-use district and in affirming the action which denied the appellant such use, we stated that the provisions of Art. 43, §§ 471-496 (1939 Code) 11 were a proper exercise by the Legislature of its “police power”. 12 The Supreme Judicial Court of Maine had before it in Maine Beauty Schools, Inc. v. State Board of Hairdressers, 225 A. 2d 424 (Me. 1967), the precise issue here raised—the constitutionality of a 1965 amendment to the Maine statutes which prohibited the making of any charge by schools of hairdressers and beauty culture for the services by student operators and prohibited such schools from making any charges other than the reasonable cost of supplies and materials. The court recognized that “. . .

The health, safety and welfare of the public is concerned from standpoints of sanitation, minimization or spread of communicable diseases and professional and technical competence of those who propose to practice the profession.” The court observed that the Legislature was confronted ⁵⁰ with contentions by school operators that the economics of their operation did not permit tuition charges to their students to be sufficient to operate the schools, without income from such “practical demonstrations,” as a result of which, the public was invited to come to such schools for beauty work, performed by students, and received such services for a charge less than that made for comparable services by registered public beauty shops; and that the registered shops contended that such practice on the part of the schools was in effect the operation of “cut-price” beauty shops, making the profit motive on the part of such schools prejudicial to both student training and the industry. It was also noted that under the practice of treating the “model”—the patron-customer at the school—reduced the amount of constructive criticism between the instructor and the student to the detriment of the student and that this aspect of the school operation reduced the competence of its graduates to the detriment of subsequent licensed employers and of the graduating students themselves when they attempted to become independent operators. In holding that: “Our statute is not per se constitutionally unequal and discriminatory in application, and the establishment and posting of ‘the reasonable cost of supplies and materials used’ to govern the charge to the ‘model’ is valid,” the court pointed out in its opinion: “Emphasis on vocational training on the one hand and emphasis as a business enterprise on the other need not be irreconcilable, but if the legislature has found that it is, it is within its prerogative. . . . [djuring the legislative course of this proposition, that body concluded that service to the public by these schools without price control was detrimental to the student training and ultimate competence. It follows from such finding that the public interest in its exposure to the abundance of beauty aids on the market, many of which involve personal injury where ⁵¹ inexpertly applied, is a matter of health, safety and welfare.” [ 225 A. 2d at 428 ] 13 In Toebe Academy of Beauty Culture, Inc. v. Kelly, et al., 239 Wis. 103 , 300 N. W. 476 (1941), the Supreme Court of Wisconsin was called upon to rule on the lawfulness and reasonableness of an order promulgated by the State Board of Health which prohibited schools of cosmetology from charging patrons more than the reasonable cost of materials used.

The Wisconsin statute provided: “A school shall provide its students with subjects for practical work. The charge made for materials used shall not exceed the reasonable cost thereof. No school shall advertise for patrons to be used at the clinical work.” In implementation of the statute the Board of Health issued an order that: “No school may charge a patron more than the reasonable cost of materials used” and set up a list of services and a determination of “reasonable cost of materials consumed in the rendition of each [such] service.” The rule also provided that any school might apply to the Board for an order establishing other maximum amounts of “cost of materials” upon furnishing adequate proof that the cost of the materials used by them did exceed those set by the rule. That court, after observing that “If a beauty school, so-called, practices cosmetic art it becomes a beauty parlor, the services being rendered by the students rather than by operators and apprentices,” and after pointing out that by statute no person shall engage in the practice of cosmetic art unless he or she has been licensed by the Board to do so, stated in its opinion: “It is considered that the chapter in question as applied to the teaching of cosmetic art is not ⁵² a price fixing statute.

The power to fix the price of materials used is an exercise of police power to prevent imposition upon the public and evasions of the provisions of the statute. The schools of cosmetic art are not engaged in the business of selling materials, they are engaged in qualifying students to become practitioners of the art. There seem to be many sound reasons for requiring schools of cosmetic art to remain within their particular field in the exercise of the power of the state to promote the health, safety and general welfare of the public.” [ 239 Wis. at 110 , 300 N. W. at 479-80 ] In Schwarze v. Clark, et al., 188 Okla. 217 , 107 P. 2d 1018 (1940), the Supreme Court of Oklahoma held that a rule promulgated by the State Board of Barber Examiners which provided that barbering students shall not be allowed to charge any compensation, directly or indirectly, for services rendered by them as students in any barber school or college was not capricious, arbitrary, unreasonable or oppressive, and did not abridge the constitutional rights of the owners of such barbering schools or