I agree that established legal principles are as stated in the very able opinion prepared in this case by Mr. Presiding Justice ELLIS, for the Court, but I cannot concur with the conclusion reached by the reasoning in that opinion when those legal principles are applied to the facts involved here.
It is conceded that the conducting of the barbers' trade or profession is an activity affected with public interest so that the Legislature in the exercise of lawful police power may impose on those engaged therein reasonable regulations and require them to meet certain standards of training and efficiency, of physical condition and of sanitary conditions and appliances to safeguard the public health and, therefore, facilitate public welfare. The barbers' is among the oldest of the honorable professions involving the necessity of personal physical contact between the skilled and specially trained operator on the one hand and large numbers of individual members of society constituting the public on the other. The barber is not only an important factor, but he is a necessary adjunct to social welfare and personal hygiene and comfort.
The practice of the barbers' profession is so essentially associated with personal contact that the transmission of disease from operator to the person operated on, and vice-versa, as well as from one being operated on to another in like position, is a constant hazard. It is indeed hard to reach the conclusion that any commercial activity is any *Page 434 more fully and clearly affected with public interest than is that of the barber.
Realizing the above stated condition to be true, legislatures in many states have imposed burdensome regulations on those engaged in practicing the barbers' profession in serving the public for compensation. The courts have uniformly upheld such legislative power. Florida has adopted such legislative Acts and the Court has sustained such Acts as being within the reasonable exercise of police power. See DiLustro v. Penton, 106 Fla. 198,142 So. 898; State, ex rel. Garrison, v. Reeve, 104 Fla. 196, 159 So. 817.
May the Legislature impose heavy and expensive burdens on those engaged in a business greatly affected with the public interest, which burdens are imposed for the protection of the public and at the same time be denied the power to protect those on whom the burden is placed from unfair and ruinous competition and destructive methods. I think not.
The barber is not a private contractor. He is a public contractor. He takes all who come to his chair in apparently good condition, that is, all apparently free from filth, vermin or infectious or contagious diseases, just as a common carrier takes all freight tendered in apparently good condition. He takes those who in apparent good condition come for his services in the turn in which they come. Perhaps nowhere is the "first come, first served" rule more universally and rigidly enforced than in the barber shop.
The conducting of the barbers' profession, I maintain, is an essential activity incident to the welfare of every community in Florida. Some may take issue with this statement on the theory that one does not necessarily require the services of a barber. The answer is that such service is required by everyone who is to maintain a position of respect *Page 435 in the community. It may not be necessary for one to use the services of a common barber, but it is essential for the public to do so. It may not be necessary for one to use milk. Even substitutes which never had any connection with a cow are used and often recommended in lieu of milk. Nevertheless, in this country, milk is judicially and legislatively recognized as an essential to public welfare and the industry of producing and distributing milk is both regulated and protected.
The provisions of the Act are sufficiently set forth in the opinion by Mr. Presiding Justice ELLIS to make it needless to repeat them here.
The feature of the Act which brings it in conflict with organic law as is contended by the relator is that which purports to authorize the State Board of Barber Examiners to fix minimum prices for barber work in the several counties of the State of Florida.
Section 12 of the Act, Chapter 16799, Acts of 1935, provides a reasonable and adequate method by which the Board as a fact-finding body may arrive at and determine the amount of the minimum prices which in fairness and good conscience should be charged and received for barber work in each of the several counties so that an average barber practicing his profession in that locality could reasonably be expected to earn enough to pay the expense incident to conducting that business in compliance with the law and to provide a sufficient wage to support him and his lawful dependents.
There is no question in this case by which the reasonableness of the price fixed by the Board for barber work in Duval County is challenged.
It is not contended that the Board has acted arbitrarily and without substantial evidence to support its findings. *Page 436 The challenge is that the Legislature was, and is, without power to enact and make effective such statutory provisions as those contained in Section 12 of the Act, either based on the legislative finding of the existence of an emergency or otherwise.
The legislative finding and declaration was in part as follows:
"Section 1. LEGISLATIVE FINDING: STATEMENT OF POLICY: — This Act is enacted in the exercise of the police power of this State and its purposes generally are to protect the public welfare, public health, public safety and public morals. It is hereby declared that unfair, unjust, destructive, demoralizing and uneconomic trading practices have been and are now being carried on in the operation of barber shops in the State of Florida, and that unfair competition exists between the individual barbers of this State to the extent that prices have been reduced by such unfair competition to the point where it is impossible for an average barber, although working regularly, to support and maintain in a modest manner, a family. That such conditions constitute a menace to the health, welfare and reasonable comfort of the inhabitants of this State. That in order to protect the well-being of our citizens and to protect the health of the families and other dependents of the barbers of the State of Florida, and the respective patrons of the barbers of the State of Florida, and promote the public welfare and due to the personal touch and contacts manifested and exercised in the barber business, and the subsequent necessity for well nourished, strong and healthy persons to engage in the barber business, the barber profession is hereby declared to be a business affecting the public health, public interest, public safety and public morals."
The petitioner contends that the State Board of Barber *Page 437 Examiners has no lawful right to decline to issue to him a permit to engage in the business or profession in which he will be allowed to do barber work for the public because he has violated the rule of the Board as promulgated in regard to the fixing of minimum prices to be charged in Duval County and that he may lawfully disregard that rule because to be compelled to comply with it is to abrogate his right to contract which abrogation violates Section 1 of the Declaration of Rights of our State Constitution and the XIV Amendment to the Federal Constitution. The Constitution not only guarantees to the citizen the right to live, but it imposes the duty on him to so live that others may also live. It enunciates the doctrine of "live and let live."
Neither Section 1 of the Declaration of Rights or the XIV Amendment to the Federal Constitution guarantees to any citizen the right to pursue his own life, the acquisition of property, the enjoyment of liberty or the quest for happiness at the cost of the sacrifice of like rights vested in other members of society, or when in such pursuit he jeopardizes the public health, the public morals or the public welfare. A citizen has the right under the Constitution to acquire property, but no informed person will contend that one has the right to acquire all the property and thereby pauperize all other citizens. To determine the limit by the amount of property which may be owned or controlled by any individual or group may become a necessary legislative activity. We may safely say that the rights guaranteed under the constitutional provisions above referred to are limited to that sphere wherein the exercise thereof by one citizen or group of citizens will not abrogate or make impossible the exercise of like or other constitutional rights by other citizens or groups of citizens.
Upon the construction above stated must rest, to a great *Page 438 extent, the foundation of judicial decisions which uphold the power of the Legislature to fix rates to be applied to and by common carriers and other public utilities and the power to establish and enforce minimum prices on such commodities as milk, all of which legislative enactments abridge the individual's right to contract with regard to the affected commodities.
So the power unquestionably exists in the Legislature to enact law which may effectually limit or abridge, or even control, the right to contract and which may write the terms of the contract which the parties are bound to observe and abide. See authorities cited by Mr. Presiding Justice ELLIS supporting the statement in his opinion, "That freedom, however, is not an absolute, but a qualified right, and is, therefore, subject to reasonable restraint in the interest of the public welfare." See also Everglades Sugar Land Co. v. Bryan, 81 Fla. 75, 87 So. 68; State, ex rel. Davis, v. Rose, 97 Fla. 710, 122 So. 225; Whitaker v. Parsons, 80 Fla. 352, 86 So. 247.
In the case of Nebbia v. New York, 291 U.S. 502, 54 Sup. Ct. Rep. 505, the Supreme Court of the United States, speaking through Mr. Justice ROBERTS, said:
"Under our form of government the use of property and the making of contracts are normally matters of private and not public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. As Chief Justice MARSHALL said, speaking specifically of inspection laws, such laws form `a portion of *Page 439 that immense mass of legislation which embraces everything within the territory of a State * * * all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State * * * are component parts of this mass.'"
Justice Barber said for this Court:
"* * * it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every Act of legislation, which it may deem to be conducive to those ends; where the power over the particular subject, or the manner of its exercise, is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified and exclusive."
And Chief Justice TANEY said upon the same subject:
"But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State possesses a quarantine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same powers; that is to say, the power of sovereignty, the power to govern man and things within the limits of its dominion. It is by virtue of this power that it legislates; and its authority to make regulations of commerce is as absolute as its power to pass health laws, except insofar *Page 440 as it has been restricted by the Constitution of the United States."
"Thus has this Court from the early days affirmed that the power to promote the general welfare is inherent in government. Touching the matters committed to it by the Constitution, the United States possesses the power, as do the States in their sovereign capacity touching all subjects jurisdiction of which is not surrendered to the Federal Government, as shown by the quotations above given. These correlative rights, that of the citizen to exercise exclusive dominion over property and freely to contract about his affairs, and that of the State to regulate the use of property and the conduct of business, are always in collision. No exercise of the private right can be imagined which will not in some respect, however slight, affect the public; no exercise of the legislative prerogative to regulate the conduct of the citizen which will not to some extent abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public need."
And further, in the same opinion, it is said:
"Legislation concerning sales of goods, and incidentally affecting prices, has repeatedly been held valid. In this class fall laws forbidding unfair competition by the charging of lower prices in one locality than those exacted in another, by giving trade inducements to purchasers, and by other forms of private discrimination. The public policy with respect to free competition has engendered State and Federal statutes prohibiting monopolies, which have been upheld. On the other hand, where the policy of the State dictated that a monopoly should be granted, statutes having that effect have been held inoffensive to the constitutional guaranties. However, the State or a municipality may itself *Page 441 enter into business in competition with private proprietors, and thus effectively although indirectly control the prices charged by them."
And it is also said:
"But we are told that because the law essays to control prices it denies due process. Notwithstanding the admitted power to correct existing economic ills by appropriate regulation of business, even though an indirect result may be a restriction of the freedom of contract or a modification of charges for services or the price of commodities, the appellant urges that direct fixation of prices is a type of regulation absolutely forbidden. His position is that the Fourteenth Amendment requires us to hold the challenged statute void for this reason alone. The argument runs that the public control of rates or prices is per se unreasonable and unconstitutional, save as applied to businesses affected with a public interest; that a business so affected is one in which the public itself might appropriately undertake, or one whose owner relies on a public grant or franchise for the right to conduct the business, or in which he is bound to serve all who apply; in short, such as is commonly called a public utility, or a business in its nature a monopoly. The milk industry, it is said, possesses none of these characteristics, and, therefore, not being affected with a public interest, its charges may not be controlled by the State. Upon the soundness of this contention the appellant's case against the statute depends."
Then we come to the statement of the principles of law which appear to me to govern the case at bar, when we find in that opinion the following language:
"We may as well say at once that the dairy industry is not, in the accepted sense of the phrase a public utility. We think the appellant is also right in asserting that there *Page 442 is in this case no suggestion of any monopoly or monopolistic practice. It goes without saying that those engaged in the business are in no way dependent upon public grants or franchises for the privilege of conducting their activities. But if, as must be conceded, the industry is subject to regulation in the public interest, what constitutional principle bars the State from correcting existing maladjustments by legislation touching prices? We think there is no such principle. The due process clause makes no mention of sales or of prices any more than it speaks of business or contracts or buildings or other incidents of property. The thought seems nevertheless to have persisted that there is something peculiarly sacrosanct about the price one may charge for what he makes or sells, and that, however able to regulate other elements of manufacture or trade, with incidental effect upon prices, the State is incapable of directly controlling the price itself. This view was negatived many years ago. Munn v. Illinois, 94 U.S. 113. The appellant's claim is, however, that this Court, in their sustaining a statutory prescription of charges for storage by the proprietors of a grain elevator, limited permissible legislation of that type to businesses affected with a public interest, and he says no business is so affected except it have one or more of the characteristics he enumerates. But this is a misconception. Munn and Scott held no franchise from the State. They owned the property upon which their elevator was situated and conducted their business as private citizens. No doubt they felt at liberty to deal with whom they pleased and on such terms as they might deem just to themselves. Their enterprise could not fairly be called a monopoly, although it was referred to in the decision as a `virtual monopoly.' This meant only that their elevator was strategically situated and that a large portion of the public *Page 443 found it highly inconvenient to deal with others. This Court concluded the circumstances justified the legislation as an exercise of the governmental right to control the business in the public interest; that is, as an exercise of police power. It is true that the Court cited a statement from Lord Hale's De Portibus Maris, to the effect that when private property is `affected with a public interest, it ceases to be juris privati only'; but the Court proceeded at once to define what it understood by the expression, saying: `Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.' (p. 126.) Thus understood, `affected with a public interest' is the equivalent of `subject to the exercise of the police power'; and it is plain that nothing more was intended by the expression. The Court had been at pains to define that power (pp. 124, 125) ending its discussion in these words:
"`From this it is apparent that, down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular; it simply prevents the States from doing that which will operate as such a deprivation.'
"In the further discussion of the principle it is said that when one devotes his property to a use `in which the public has an interest' he in effect `grants to the public an interest in that use' and must submit to be controlled for the common good. The conclusion is that if Munn and Scott wished to avoid having their business regulated they should not have *Page 444 embarked their property in an industry which is subject to regulation in the public interest."
Further quotation from that opinion need not be indulged here. The holding definitely was: that if the industry is subject to regulation in the public interest, there is no constitutional principle which bars the State from correcting existing maladjustments by legislation touching prices. So I think the conclusion logically follows that if the Legislature has the power to regulate the practice of the barbers' profession and to fix and establish standards of fitness to engage in the profession and to fix and establish standards of sanitation to be observed in the performance of barbers' work under the exercise of police power, then the Legislature may also through the medium of a fact-finding board, determine and fix minimum prices which may be charged by those engaged in the barbers' profession within designated areas, so as the public may be provided with the services of skilled barbers, free from contagious disease, conducting their barbers' work under sanitary conditions, complying with standards in this regard fixed by law, and which will at the same time afford the average skilled barber so engaged a fair return on his investments and his labor.
As is pointed out by Mr. Justice ROBERTS in the case of Nebbia v. New York, supra, this is just what has been upheld as being within the legislative power in the numerous cases referred to in that opinion. It also appears to me that the statute of New York, the price-fixing feature of which was under attack in the case just referred to, was upheld not because the milk industry was affected with paramount public interest, but it was upheld because it regulated in this regard an industry which was soaffected with public interest as to be subject to legislativecontrol under the police power, and, it being admittedly subject to control under *Page 445 police power, that control could, in part, be exercised by price fixing. That the Legislature has not attempted by price-fixing to protect the nurse, the physician, the dentist or the lawyer from pauperism resulting from price cutting, or to protect the public from a mass effort on the part of those engaged in one or the other of those professions to overcharge and thereby place the service rendered by those engaged in such profession beyond the reach of the average citizen is probably not because of lack of legislative power to render such protection, but may be because the need for such protection has not become evident.
There may be some invalid provisions in the Act which are not here involved and which the relator is not in a position to question. With such provisions we are not now concerned.
I think there is much immaterial matter stated in Section 1 of the Act involved. The emergency which will warrant such legislative action is merely the existence of a condition the result of which will work great hardship and injustice upon those rendering the service affected with public interest or upon those entitled to receive and have the benefit of the service rendered. Whether or not such a condition exists is first to be determined by the Legislature. The legislative determination in this regard may be reviewed by the courts on proper presentation, but on such review the question to be determined is one of fact and not one challenging legislative power. I find no reason, either in law or logic, why the Legislature may not protect the earning power of human hands engaged in a service materially affected with public interest such as that of the barber, with the same sanctity which it may, and does, protect by fixing rates, the earning power of dollars invested in railroads and other utilities which render service affected with public interest, *Page 446 when it has imposed burdensome legislative regulations on both under its lawful police power solely because of the fact that the field of activity of each is affected with the public interest.
I think the opinion and judgment in the case of Schecter v. United States, 79 U.S., Law Ed. 888, has no application to the case at bar because in that case the Court held the Act under consideration invalid because the enactment thereof was beyond the power of Congress.
For the reasons stated, I think the alternative writ should be quashed.
TERRELL, J., concurs in conclusion.