There appears little room for argument that professions, trades, callings, or occupations, which because of their intimate relation to public health, including the occupation of barber, may be regulated by legislative act, and municipal ordinance when such power has been granted the municipality, under the police power, enabling the state or such municipality to make needful rules and regulations for the health, safety and welfare of the public. Neither the legislature nor municipal authority can, however, under guise of police power, impose upon barber shops unreasonable, capricious, or arbitrary regulations *Page 380 having no relation to the public health or welfare. (7 American Jurisprudence, pp. 613, 614, secs. 2, 3, 7; Patton v.Bellingham, 179 Wn. 566, 38 P.2d 364, 98 A.L.R. 1076;Chaires v. Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A.L.R. 230;Cooper v. Rollins, 152 Ga. 588, 110 S.E. 726, 20 A.L.R. 1105;Moler v. Whisman, 243 Mo. 571, 147 S.W. 985, Ann. Cas. 1913D, 392, 40 L.R.A., N.S., 629.)
Chapter 7, Title 53, I. C. A. "Barber Shop Inspection and Closing Hours," contains the following provisions:
By section 53-701, I. C. A., the department of public welfare is charged with the sanitary supervision of all barber shops in the state of Idaho in the interest of public health and to prevent the spread of contagious and infectious diseases. Section 53-702, directs the department of public welfare to inspect barber shops as follows:
"The department of public welfare is hereby directed and empowered to inspect the places mentioned in section 53-701, and to make such rules and regulations as are necessary to safeguard the public health, and to prevent the spread of contagious or infectious diseases, which rules and regulations shall be posted and published in the manner provided in section36-303, and any person violating any such rules or regulations, when so posted and published, shall be guilty of a misdemeanor, and upon conviction shall be fined a sum not to exceed fifty dollars."
Section 53-703 provides:
"Upon any such establishment herein being found to be in asanitary condition, by the department of public welfare, and complying with the regulations provided for in the preceding section, a certificate shall be issued by said department, without any cost, good for the year in which it is issued, which shall be kept posted in a conspicuous place. The owner, lessee, or manager of any barber shop . . . . who operates his business in violation of this provision shall be guilty of a misdemeanor, and punished as provided in the preceding section."
Section 53-704, that directly involved herein, provides:
"It shall be unlawful for any person or persons in the state to keep open for business or to work at the barber's *Page 381 trade in any city of the first or second class after the hour of seven o'clock P. M. on any working day; provided, however, that on Saturday and the day preceding each legal holiday said barber shops may be kept open for business until ten o'clock P. M."
Section 9 of Ordinance 1704 of the City of Boise provides to similar effect but with certain dissimilarities, as follows:
"It shall be unlawful for any person or persons, firm or corporation, to operate, maintain, or conduct, any barber shop or place wherein barbering is done, in Boise City, Idaho, to be open for the purpose of business of barbering for revenue, pay, free or otherwise, before eight o'clock A. M. and after six o'clock P. M. on the following days. . . . . (Monday to Friday, incl.) on Saturday of each week said shops or places shall not be open before eight o'clock A. M. or after seven o'clock P. M.
"All barber shops shall remain closed on Sunday and the following holidays to wit: New Years Day, Decoration Day, Fourth of July, Labor Day, Armistice Day, Thanksgiving Day, and Christmas, and when said holidays or any of them fall on Sundays, then the following Monday shall be observed."
From the foregoing statutes and the ordinance it appears that although the owner or proprietor of a barber shop in a city of the first or second class conducts his shop in a clean and orderly manner, complying with the rules and regulations necessary to safeguard the public health, but allows his shop to remain open for business after the hour prescribed, in the case of the statute, or open his shop earlier or permits it to remain open later than the hours prescribed, in the case of the ordinance, he is subject to prosecution. Barber shops or the barber trade may be operated or carried on in all towns, villages or hamlets, other than cities of the first or second class, without restriction as to the hours of opening or closing.
It is not contended that the ordinance is invalid in requiring barber shops to be closed on Sunday. I think it may be conceded that statutes or ordinances prohibiting barbers from keeping their shops open or working at the barber's trade on Sunday is a legitimate exercise of the police power. *Page 382 (Re Caldwell, 82 Neb. 544, 118 N.W. 133; Ex parte Kennedy, 42 Tex.Crim. 148,58 S.W. 129, 51 L.R.A. 270; Stark v. Backus,140 Wis. 557, 123 N.W. 98; cases cited in note 20 A.L.R., p. 1114.)
The issue presented is the reasonableness of the provisions of the statute and ordinance in prescribing the hours at which barber shops may open and when they must close. Police regulation of the use or enjoyment of property rights and the right to labor can only be justified by the presence of public interest. The right to acquire and own property and deal with and use it as one chooses and the right to labor as one will, so long as the use or the exercise of the right harms nobody, is a natural right to which the police power is subordinate. The right may be limited only to the extent necessary to subserve the public interest. Therefore, the owner or the laborer has the constitutional right to make any use of his property or his labor as he desires so long as he does notinterfere with or threaten the safety, health, comfort orgeneral welfare of the public. Can it be logically contended that the closing of a barber shop, where a lawful and legitimate business is being conducted, inures to the public safety, health, or general welfare? Is it necessary to close a legitimate place of business to insure the safety, health, or general welfare of the public? The question, simply states, is: Does the law have a real or substantial relation to the public interest in the matter regulated. (Mugler v. Kansas,123 U.S. 623, 661, 8 Sup. Ct. 273, 31 L. ed. 205.)
It may be conceded, frankly, that the validity of an ordinance establishing a closing hour for barber shops has been sustained. (Falco v. Atlantic City, 99 N.J.L. 19,122 Atl. 610.) The majority of the cases directly considering such question, however, have reached the opposite conclusion, the well founded statement in 7 American Jurisprudence, page 617, section 8, stating:
"The majority of the cases which have considered the validity of ordinances containing provisions requiring barber shops to be closed at a certain fixed time on secular days have reached the conclusion that such provisions have no reasonable relation to the admittedly proper exercise of *Page 383 the police power in regulating the profession of barbering. Any such regulations depend for their validity upon the nature of the business sought to be regulated; that is, the nature of the business must be such that the public health, morals, safety, or general welfare is, or might be, affected by such business being permitted to remain open or continue after certain hours. With regard to barber shops, such a regulation bears no reasonable relation to the public health or general welfare; nor can it be supported on the theory that it will aid the enforcement of proper inspection regulations."
Conceding that under the exercise of the police power the state or city may regulate the hours and conditions of labor with respect to barbers it cannot be logically contended that the ordinance or the statute by their terms attempt to limit the hours of labor, but merely dictate the hours which barber shops must remain closed. The owner, lessee or manager of such business is prohibited from carrying on a properly conducted, legitimate, lawful, and wellnigh indispensable business except within designated arbitrary hours. Obviously the working hours of barbers can be effectually regulated by ordinance or statute specifically designating their hours of work and without closing the shop.
"A barber's working hours can be effectually regulated, without closing the shop in which he works, by an ordinance specifically designating his hours of work. To close the shop, therefore, in order to prevent overwork by barbers therein, unnecessarily interferes with its operation, and is unreasonable." (Knight v. Johns, 161 Miss. 519, 137 So. 509.)
"It is contended by respondents that it is necessary to limit the hours that a barber may labor, in order to prevent fatigue with its consequent hazards to the general public. It will be observed that the ordinance does not by its terms limit the hours of labor at all, but merely attempts to limit the time within which a shop may be kept open. If a shop remained open twenty hours of the day, working two shifts of ten hours each, or kept open twenty-four hours of the day, working three shifts of eight hours *Page 384 each, or four shifts of six hours each, there would be no violation of any regulation as to the hours of labor." (Patton v. Bellingham, supra.)
The contention in the majority opinion that closing of a barber shop at a specified hour is no different in principle than regulating the hours a barber may work is not based upon sound logic. Several barbers may work in one shop, the hours of each individual may be regulated as to length of time, yet by working in shifts or at different periods of time continuous operation of the barber shop would be possible without requiring any barber to work longer hours than he was by law permitted. To arbitrarily close barber shops at a specified hour tends to limit the hours of labor of barbers as a class while to regulate the hour of the individual barber and permit barber shops to remain open extends the hours of labor of barbers as a class.
It will be noted that section 53-704, I. C. A., provides it shall be unlawful for any person or persons in the state to work at the barber's trade in any city of the first class or second class after the hour of 7 o'clock P. M., thus denying the right of a barber to care for the sick at hospitals, in homes, or elsewhere after 7 o'clock P. M. A violation of such provision would subject a barber to prosecution.
It will be observed that under section 9 of Ordinance 1704 of the City of Boise all barber shops shall remain closed on the Monday following any designated holiday which falls upon Sunday, thus denying to the barber the right to work on a secular day, limiting his earnings whatever his necessities may be and denying him the right to make a livelihood on such days. Such a provision closing barber shops on Monday following the Sunday upon which a holiday falls is arbitrary and unreasonable and bears no relation to the public health, safety or general welfare.
There is no real merit in the contention that the ordinance and statute should be upheld upon the theory that they facilitate adequate inspection, thus inuring to the public health. Certainly opportunity exists without absolute closing of barber shops for reasonable inspection. The following cases have referred to such contention and have reached the *Page 385 conclusion that inspection does not require, authorize or permit the fixing of arbitrary closing hours.
"It is suggested by respondents in their brief that the closing of the shops at an early hour would facilitate inspection by the authorities and members of the board of inspection. But certainly ample opportunity now exists for reasonable inspection, and certainly the situation does not call for an absolute closing of the shops in order that inspectors may go upon the premises; otherwise the right of inspection would not be an incident of regulation, but would be a lever by means of which the business would be largely controlled." (Patton v. Bellingham, supra.)
"Another reason given for the validity of the ordinance is, that it is designed to fix a reasonable time within which the city inspectors may inspect barber shops in order to ascertain whether the city's sanitary and health ordinances are there obeyed. . . . . As we understand the argument, the necessity for the barber shop closing ordinance arises because of inconvenience to the city's inspectors of inspecting such shops during the hours the ordinance requires them to be closed. It does not, and could hardly be made to, appear that such inspection must be continuous, covering every hour a barber shop is open; and to compel the closing of barber shops between certain hours, because it will be inconvenient for the city to then inspect them, when they are open at other hours amply sufficient for such inspection, would unnecessarily and unreasonably interfere with the operation thereof." (Knight v.Johns, supra.)
Fallaciousness of reasoning with reference to the convenience of inspection by reason of such closing provisions is aptly disclosed by the widely divergent argument with respect thereto contained in the two foregoing cases. In the first it was argued that inspection would be facilitated by giving inspectors opportunity to go upon the premises during the hours the shops were closed. In the second case it was urged that inspections must be made when the shops are open and in the absence of closing regulations inspectors were compelled to work long hours, placing too much burden on the inspectors. *Page 386
"The possible suggested difficulty is that inspectors cannot be on duty at all hours of the night, without placing too great a burden on the municipality. Perhaps, to those who are familiar with the times and methods of inspecting barber shops, this reason would seem absurd. If, for instance, in the administration of such an ordinance an inspection is made of each shop once a month, once a week, or even once each day, there would seem to be no substantial reason for the claim that the closing of the shops at 6 in the evening was at all necessary to facilitate inspection. . . . . We are not willing to suppose that the absence of closing regulations might render effective inspection impossible. We may grant that it might render it more inconvenient and perhaps more expensive. If that be so, a weighing of the conflicting interest, that of the barber to pursue a useful occupation so long as he complies with the sanitary regulations, and that of the public to have the shop inspected — makes it reasonable to suppose that the Legislature, in granting the power to license and regulate without mention of the inconvenience and expense of inspection, if not covered by the license fees, should be borne by the public, instead of intending, that the city authorities should fix an arbitrary closing hour." (State v. City of Laramie,40 Wyo. 74, 275 P. 106.)
An examination of the authorities will disclose that a majority of the cases which have considered the validity of statutes or ordinances containing provisions fixing the hours within which barber shops may be open for business have reached the conclusion, upon various grounds, that such provisions are an unconstitutional invasion of the right to earn a living, and consequently a denial of due process, having no reasonable relation to the admittedly proper exercise of the police power in regulating such profession.
"The occupation of barbering is a lawful business, and, so far from being an obnoxious one, it is now considered well-nigh indispensable. It may be conceded, as we have already conceded, that its relation to the public is such as to render it amenable to proper regulation, to the end that the public may be protected against the spread of communicable diseases and unsanitary practices. In so far as *Page 387 the ordinance seeks to require that such shops shall be operated in a clean and sanitary manner, and by clean and competent barbers, it is a wholesome measure and a valid exercise of the police power. But, in our opinion, the avowed object of the ordinance bears no real or substantial relation to the reasonable protection of the public. It belongs rather, in the category of unreasonable restrictions upon the right of a citizen to engage in a useful and lawful calling and to acquire and possess property and to so use it as will not interfere with the rights of others. The ordinance seeks not merely to regulate a business, but to dictate its operation." (Patton v. Bellingham, supra; Knight v. Johns, supra; State v.Laramie, supra.)
"In fact, the business may be regarded as indispensable in the present development of our civilization, if we have regard to the requirements of decency and cleanliness. . . . . And in addition to this, those engaged in domestic service and in the various branches of such service are detained in the discharge of their duties in this employment to an hour that would prevent their availing themselves of the service rendered in barber shops, if such shops are closed at the hour of 7 o'clock. The section of the ordinance with which we are now dealing is therefore void, as being unreasonable, upon the ground which we have stated above, and other grounds could be adduced if necessary. And it is discriminatory because it selects one particular lawful business that is in no wise obnoxious, and requires those operating this business to close at a very early hour, but leaves unregulated as to hours of closing various other businesses." (Chaires v. Atlanta,164 Ga. 755, 139 S.E. 559, 55 A.L.R. 230.)
"A statute prohibiting barbers to carry on business after 12 o'clock on Sunday or on a legal holiday, and applying to no other class of labor is unconstitutional as special, unjust, and unreasonable, working an invasion of individual liberty, since it is based upon no distinction to justify singing out that class of laborers. . . . . The laboring barber, engaged in a most respectable, useful, and cleanly pursuit, is singled out from the thousands of his fellows in other employments, and told that, willy nilly, he shall not *Page 388 work upon holidays, and Sundays after 12 o'clock noon. His wishes, tastes, or necessities are not consulted. If he labors, he is a criminal. Such protection to labor carried a little further would send him from the jail to the poor-house." (Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, 32 L.R.A. 664.)
In Brown v. City of Seattle, 150 Wn. 203, 272 P. 517,278 Pac. 1022, it was held an ordinance purporting to make it unlawful for any shop conducted for the sale of meat and meat products to keep open for business after 6 o'clock in the afternoon, was an unconstitutional exercise of police power, not tending in practical manner to prevent sale to the public of unwholesome meat.
If it is lawful to permit barber shops to remain open continuously in larger cities than we have in Idaho as is apparently conceded in the majority opinion, can it be logically contended that in Idaho cities of the first and second class of lesser population may be arbitrarily closed during certain hours?
If the statute and ordinance above referred to regulated the hours of labor of the individual barber we would have an entirely different question, but they do nothing of the kind but to the contrary simply padlock a legitimate place of business depriving the owner, lessee or proprietor of the right to the use of property without due process of law and are therefore in my opinion unreasonable and void.
Dereliction in the conduct of one or more barbers by permitting liquor to be sold in their places of business or permitting other violations of law or good morals would not justify the conclusion that in the interest of public health, public morals or general welfare that all barber shops should be closed at an arbitrary hour. I think it will be conceded that places other than barber shops have been more derelict. Dereliction of this kind in isolated cases may be found in practically all lines of business.
The judgment of the trial court should be sustained.