The sole question presented for our consideration is as to the validity of the ordinance and statute quoted in the foregoing opinions. Appellant *Page 389 contends these enactments are a proper exercise of the police power of the state and respondents contend they violate article 1, section 13, of the Constitution of Idaho, wherein it is provided that no person shall be deprived of liberty or property without due process of law, and the Fourteenth Amendment to the Constitution of the United States which prohibits the state from depriving any person of liberty, or property, without due process of law.
The police power was discussed in In re Crane, 27 Idaho 671,151 P. 1006, L.R.A. 1918A, 942. Therein we said:
"No fixed rule has been discovered by which to determine whether or not a statute of the nature of the one under consideration is a proper exercise of the police power, but it may be said the questions propounded to the courts are: Does the statute purport to have been enacted to protect the public health, the public morals, or the public safety? Has it a real and substantial relation to those objects, or is it, upon the other hand, a palpable invasion of rights secured by the constitution? Questions as to the wisdom and expediency of such legislation address themselves to the legislative, not to the judicial branch of the government."
In that case we quoted from the opinion delivered by Justice Harlan in Mugler v. Kansas, 123 U.S. 623, 8 Sup. Ct. 273,31 L.ed. 205, as follows:
"But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health or the public safety. *Page 390
"It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of the statute, Sinking FundCases, 99 U.S. 700, 718, 25 L. ed. 496, 501, the courts must obey the constitution rather than the law-making department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. 'To what purpose,' it was said in Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 167, 2 L. ed. 60, 70, 'are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.' The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution."
The Supreme Court of the United States in Lawton v. Steele,152 U.S. 133, 14 Sup. Ct. 499, 38 L. ed. 385, said, with respect to the police power:
"To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the *Page 391 public interests arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts."
The Supreme Court of Wyoming, in State v. City of Sheridan,25 Wyo. 347, 170 P. 1, 3, 1 A.L.R. 955, quoted from Adam Smith's Wealth of Nations, Book I, chapter 10, as follows:
"It has been well said that, 'The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The. patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.' "
The business of the barber, properly conducted, is in no sense a menace to public health, public morals or public safety. It may be, and in this state it has been, regulated so as to safeguard the public health and to prevent the spread of contagious or infectious diseases by improper or unsanitary practices. (I. C. A., Title 53, chap. 6 and secs. 53-701,53-702, 53-703.) The lessening of the hours during which barber shops may be kept open would not assist in improving sanitary conditions therein.
It has been urged that the closing of shops, in conformity to the statute and ordinance here under consideration, would aid in sanitation inspection. In what way inspection would be promoted by shortening the hours during which the shops might be kept open is not apparent. (Ernesti v. City of Grand Island,125 Neb. 688, 251 N.W. 899.)
The following statement by the Supreme Court of Louisiana inCity of Alexandria v. Hall, 171 La. 595, 131 So. 722, 724, applies to this case: *Page 392
"Besides, the requirement in the ordinance that barber shops shall be closed at 6:30 p. m. throughout the year, with certain exceptions, is not really an appropriate measure for the protection of the public health, as the alleged necessity for the restriction in the ordinance bears no reasonable relation to public health, is not supported by anything of substance, but rests, in our opinion, upon mere conjecture. . . . .
"A minority of 20 per cent. of the barbers in the city of Alexandria are opposed to the ordinance in question. The clear purpose of the ordinance is to make all barbers close their shops at the same time. No thought of the health of the community, in our opinion, was in the minds of the barbers or of tile city council, when section 4 was written into the ordinance, closing all the barber shops during the week days at 6:30 p. m., except on Saturdays, when they must be closed at 9 o'clock p. m. Besides, adequate health provisions are taken care of in the uncontested provisions of the ordinance."
(See, also, Ganley v. Claeys, 2 Cal. (2d) 266,40 P.2d 817; Ex parte Kazas, 22 Cal.App. (2d) 161, 70 P.2d 962;Chaires v. City of Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A.L.R. 230; Saville v. Corless, 46 Utah, 495, 151 P. 51, Ann. Cas. 1918D, 198, L.R.A. 1916A, 651; Patton v. City ofBellingham, 179 Wn. 566, 38 P.2d 364, 98 A.L.R. 1076.)
The Chief Justice says in his opinion:
"Among the many reasons that have been suggested for such legislation, there is one that requires no speculation in this state but has found its way into the records of this court, and that is: Some of the less scrupulous and cautious members of those engaged in the barbering business have allowed their places to be used as meeting places, where back rooms have been turned into rendezvous for illicit use of intoxicants and immoral conduct. (See State v. Parris, 55 Idaho 506,44 P.2d 1118; State v. Paris, 58 Idaho 315, 72 P.2d 865.)"
Although the name is not spelled alike in the two cases, the appellant in each case is the same person, and the legislation in question could not have been prompted by his misconduct *Page 393 The statute under consideration was enacted in 1919 and the crime of which Parris was convicted, according to the evidence introduced at his trial, was committed on or about July 27, 1933. The closing hours prescribed in the legislation here under consideration not only did not prevent that crime, but can have no tendency to prevent other like offenses. The way cases of that kind should be handled is the way that one was handled, as is shown by State v. Paris, 58 Idaho 315,72 P.2d 865, which was an appeal from a conviction of practicing barbering without a certificate of registration.
Sec. 53-615 provides for refusal to issue or renew, and for the suspension or revocation of certificates of registration for the causes therein set forth, among which is, "Conviction of a felony shown by a certified copy of the record of the court of conviction." The record in that case shows appellant's certificate of registration was cancelled because of his conviction of the felony of which he was accused in the case reported in 55 Idaho 506, 44 P.2d 1118.
The legislation here under consideration is not a proper exercise of the police power. Its purpose is not to protect the public health, the public morals or the public safety, but is to deprive barbers, unnecessarily and unreasonably, of the right to properly conduct their businesses as they see fit, and to the satisfaction of those who employ them.
The judgment appealed from should be affirmed in its entirety. *Page 394