Schneider v. Duer

Shehan, J., delivered the opinion of the Court. Richard F. Schneider, the appellant, filed a suit in ³²⁸ equity in the Circuit Court for Baltimore City, in which the constitutionality of chapter 371 of the Acts of the General Assembly of Maryland of 1935, to regulate the trade of barbering, is brought into question. A demurrer to the amended bill of complaint in this case was sustained, and from an order dismissing the bill this appeal is taken. J. Bernard Wells, the states’ attorney for Baltimore City, and!

Arthur W. Duer, Robert W. Smith, and Vincent A. Cinquegrani, are defendants and appellees. The state’s attorney is made a party defendant because he is empowered and directed to prosecute, in the City of Baltimore, upon the part of the State of Maryland, all cases in which the State may be interested. The other three defendants constitute the “Board of Barber Examiners of the State of Maryland”; appointed in pursuance of power and authority contained in the above Act of Assembly. These appointments are claimed to have been illegal because of the alleged unconstitutionality of said act creating that board.

The bill of complaint charges that the Act of 1935, ch. 371, and each and every part thereof, is invalid, illegal, and unconstitutional and in contravention of the Bill of Rights, the Constitution of the State of Maryland and that of the United States, and prays that it may be so decreed, and that the defendants be enjoined from enforcing it. The question here presented is: In the exercise of the police power, has the public such a general interest in the occupation of barbering that the Legislature may, through reasonable police regulations, exercise supervision of this occupation in order that the health and safety of the public may be preserved and not endangered; and, assuming that such regulatory authority and-power does exist, then has it been so exercised that the provisions of the act can be upheld as valid and not an invasion of the constitutional rights and guarantees, of those whom it is intended to affect? The legislative policy of this State has heretofore been expressed by the Act of 1904, ch. 226, and on two occasions that act has been before ³²⁹ this court, in the cases of State v. Tag, 100 Md. 588 , 60 A. 465, 467 , and Criswell v. State, 126 Md. 103 , 94 A. 549 . In neither of these cases was the constitutionality of the Act of 1904 attacked, this court expressly saying in the Tag case that the constitutionality of the act was conceded (not decided).

In both cases the question of classification of certain persons, and, consequently, their right to engage in the trade of barbering, were the only questions submitted for decision. So this court for the first time is called on to pass upon the constitutionality of the questions here involved. This Act of 1904 was incorporated in the Code and became a part of the health article (article 43, sec. 269 et seq.), and as such is repealed and re-enacted with amendments by the Act of 1935, ch. 371. The principal difference in these two acts grows out of an effort by the Legislature to bring into supervision, under more exacting regulations and tests, the barber school and its students and apprentices in barber shops; to enlarge the powers of the “State Board of Barber Examiners of the State of Maryland”; to establish divisions, grades, and tests of those who desire to engage in this trade, beyond or in addition to those already prescribed.

Sections 269 to 272 inclusive of the act provide for the appointment and qualifications of the three members of the board, with salaries per annum of $1,500 each, and, generally, provide the legal machinery for the operations of the board; then follow numerous sections providing educational, physical, and manual qualifications for barbers, students, and apprentices; those who are engaged in the trade, and those who wish to be, are divided into classes, and from the members of each class there are exacted license fees and charges. The act imposes numerous rules, regulations, and requirements on these schools and shops, and upon those engaged therein are imposed fines, forfeitures, and remjoval from the activities of the trade for stated crimes, and lastly legal procedure, including the right of appeal, is provided. The act is not so framed or arranged with respect to ³³⁰ its numerous sections as to be referred to in sequence, in relation to the subjects and objects involved. This in general is an outline of the act whose constitutionality is being attacked, and this is the sole question in this appeal.

The precise question presented for consideration in the above cited cases was whether certain provisions of the Act of 1904 could be sustained, which provided for divisions of barbers into classes, some of whom are subjected to the terms of the act and others exempted. The Act of 1904 provided that those engaged in this occupation at the time of its passage should be wholly exempt. Thus arose the question in controversy. The validity of the entire act as a police regulation affecting the health and security of people was not directly involved.

This court sustained the contention that this division did not invalidate that act. Such ruling, however, in some respects carries with it an implied recognition of the constitutionality of the act; otherwise the entire act would have been held invalid, and the provisions under attack, equally with all other provisions, would have been held illegal, but it must be observed that in those two cases there are no clearly defined limits of the legislative authority in dealing with this trade. But in the case of State v. Tag, supra■, the court went further than an implied recognition of the constitutionality of the Act of 1904. It was there said: “When a statute is inexplicable, contradictory, or altogether absurd it may be declared void, apart from any constitutional objections.

Campbell’s Case, 2 Bland, 209 . But this Act of 1904 does not appear to us to be subject to any of these objections. It is conceded [not decided] to be constitutional.” • In the Criswell case the question presented was substantially that in the Tag case, with the same result. A better definition of the authority and of the limitations of the Legislature, as it relates to the trade of barbering, is given by this court in the recent case of Dasch v. Jackson, 170 Md. 251 , 183 A. 534, 540 , known as the “Paper Hangers’ Case.” Therein it is stated that: “Perhaps the ³³¹ farthest point reached by the tide of regulation of labor and industry is marked by the Barbers’ Act, which was before this court in State v. Tag, 100 Md. 588 , 60 A. 465, 466 , and Criswell v. State, 126 Md. 103 , 94 A. 549 , and upheld.

While that occupation may have some conceivable relation to the public health, (State v. Armeno, 29 R.I. 431 , 72 A. 216 ), there is much force in the statement found in Timmons v. Morris (D. C.) 271 Fed. 721, 724 , that ‘The court is convinced that, in so far as the practice of barbering is concerned, the public welfare and comfort—outside of, and beyond what is included in its health and safety—are so insignificant as not to lend color to any right claimed under the police power of the state.’ ” In view of these cases, it must be held that the occupation of barbering is a trade or calling that may be subjected to police regulation, so far as the health and safety of the public is concerned. The barber trade is one of those occupations that, in the interest of public health and safety, has been recognized in many states as a proper subject or field of police regulation. Marx v. Maybury, 284 U. S. 691 , 52 S. Ct. 5 , 76 L. Ed. 583 ; State Board, of Barber Examiners v. Blocker, 176 Ga. 125 , 167 S. E. 298 ; Banghart v. Walsh, 339 Ill. 132 , 171 N. E. 154 ; Clark v. State, 169 Miss. 369 , 152 So. 820 ; State v. Lockey, 198 N. C. 551, 152 , S. E. 693; State v. Conragan, 54 R. I. 256, 171 A. 326 ; Mundell v. Graph, 62 S. D. 631, 256 N. W. 121 ; State v. Nolan, 161 Tenn. 293 , 30 S. W. (2nd) 601 ; Gerard v. Smith (Tex.

Civ. App.) 52 S. W. (2nd) 347 ; Ransone v. Craft, 161 Va. 332 , 170 S. E. 610 ; State v. Briggs, 45 Or. 366 , 77 P. 750 , 78 P. 361 ; State v. Wester, 135 Wash. 32 , 236 P. 790 ; State v. Zeno, 79 Minn. 80 , 81 N. W. 748 ; Patton v. Bellingham, 179 Wash. 566 , 38 P. (2nd) 364, 98 A. L. R. 1076, 1077, and annotations, pp. 1088 to 1096; Ex parte Lucas, 160 Mo. 218 , 61 S. W. 218 ; Cooper v. Rollins, 152 Ga. 588 , 110 S. E. 726 , 20 A. L. R. 1111, and annotations; 17 R. C. L. 555.

The appellant had long been engaged in the occupation of barbering, and conducted a barber school at the time ³³² lie instituted this suit. The record and acts of assembly do not clearly show the nature and functions of these schools, but it may be presumed that they are institutions for the instruction of students who desire to become proficient in, their chosen trade, and, like many other persons, having selected a calling of a useful and harmless character, such as carpentering, bricklaying, and painting, requiring some technical knowledge of the trade, engage themselves with men of experience in order that they mjay be better equipped for their work. Under this act it is sought to establish an elaborate plan of regulation of the barber and his shop, and also to regulate barber schools. This trade is neither highly technical nor exceptionally difficult, and its nature is understood by persons generally, and many regulations found in this act seem to be unnecessary and unreasonable in safeguarding public health or security.

The same and possibly additional reasons may be assigned for the regulation of the barber school as for the barber shop, but only for like purposes and to the same extent. These schools are frequented by the public. The services there performed are similar to those in the barber shops, except that inexperienced men are there employed in barbering and in learning that trade by practical experience. In them the same precautions as to health and sanitation are desirable as in properly regulated barber shops.

This act, as it relates to barber schools, goes far beyond these precautions. Acts creating boards or commissions, with numerous officials and paid employees, complicated legal machinery, and elaborate plans for the supposed purpose of regulating simple trades and callings, well known and understood by the public, the expenses of which come out of the pockets or earnings of those engaged in the trade, should be viewed with care and examined with diligence to ascertain whether such acts and regulatory measures are designed to safeguard the public welfare, or for other purposes not sanctioned by law and beyond the limita ³³³ tions prescribed by the letter of the Constitution and by judicial interpretation. This court has recently said in Dasch v. Jackson, supra: “There must of necessity be somewhere a limit to the right of the state to regulate the common useful and harmless activities of life.” It should be remembered and held constantly in mind, in considering this question, that the barber trade is one of those callings and activities just referred to, and the question here presented should be considered and disposed of in the light of that characterization of this trade. Under this act persons desiring to engage in that occupation are met with requirements entirely out of proportion to the character and purposes of this trade and the safeguards that seem just and fair to the public.

They constitute an arbitrary prohibition rather than a reasonable approach to a lawful and chosen work. These restrictive measures strike at the foundation of the trade, in that they wrongfully and illegally interfere with those who wish to engage in it, and, if strictly enforced, few would be able to accept this calling and engage in its activities. This constitutes an unreasonable and illegal exercise of police power. In speaking of the guarantees afforded by the Fifth and Fourteenth Amendments to the Constitution of the United States, and by article 23 of the Declaration of Rights of the Constitution of Maryland, in Dasch v. Jackson, supra, this court, through Judge Offutt, has said, “Property within the meaning of that guarantee, includes the right to engage in those common occupations or callings which involve no threat to the public welfare, to exercise a choice in the selection of an occupation, and to pursue that occupation in one’s own way so long as one does not interfere with the rights of the others.” And in that case it is further stated: “ ‘No man’s liberty is safe if the Legislature can deny him the right to engage in a harmless calling.’ * * * ‘The right to follow any of the common occupations of life is an inalienable right. * * * The right to follow any of the ordinary call ³³⁴ ings of life is one of the privileges of a citizen of the United States.’ ” Justice Bradley, speaking for the United States Supreme Court in Butchers’ Union etc., Co. v. Crescent City etc., Co., 111 U. S. 746 , 4 S. Ct. 652 , 28 L. Ed. 585 , laid down these principles.

Also see supporting cases cited in Dasch v. Jackson, supra. The provisions of this act clearly contravene these principles of the law. We cannot consider at length and in detail all the objections that may be rightfully urged against the validity of this act. Such would carry this opinion beyond reasonable bounds.

But we will refer specifically to some of the provisions that seem especially objectionable and affect the constitutionality of the entire act. In order to