I respectfully dissent from the majority opinions in these two cases, in which it is held that Section 12 of Act No. 48 of 1936 is unconstitutional.
Act No. 48 of 1936 is entitled "An Act To regulate and control the Barber Industry, and for that purpose to further enlarge the present powers of the Board of Barber Examiners; defining its additional jurisdiction, powers, and duties; to approve agreements from each Judicial District; and providing penalties for violation of this Act".
The purposes of the Act are thus set forth in Section 1:
"Be it enacted by the Legislature of Louisiana, That 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 and public safety.
"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 Louisiana, 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 *Page 244 working regularly, to support and maintain reasonably safe and healthful barbering services to the public.
"That such conditions constitute a menace to the health, welfare and reasonable comfort of the inhabitants of this State, and tend to the transmission of disease.
"That as the barber business affects the health, comfort and well-being of our citizens, and of the public which patronizes the barbers of the State of Louisiana, in order to promote the public welfare, health and safety, and to prevent the transmission of disease, in view of the personal touch and contacts manifested and exercised in the barber business, and the need 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 and public safety.
"That the present acute economic condition, being in part the consequence of a severe and increasing disparity between the prices of barber work and other commodities, which disparity has largely destroyed the purchasing power of barbers for industrial and sanitary products so necessary in the operation of their business, has broken down the orderly performing of the duties of the barbering profession and has seriously impaired and injured the public health and safety.
"That the danger to the public health, safety welfare is immediate and impending, the necessity urgent, and such as will not admit of delay in public supervision *Page 245 and control in accord with the proper standards of the barber profession. The foregoing statement of fact, policy and application of this Act are hereby declared as a matter of legislative determination."
Under the conditions and state of facts set forth in Section 1 of this Act, the Legislature enacted "Section 12. Order Fixing Prices of Barber Work".
This section provides:
"(a) That the Board shall have the power to approve price agreements establishing minimum prices for barber work, signed, and submitted by any organized groups of at least 75% of the barbers of each Judicial District, after ascertaining by such investigations, and proofs as the condition permits and requires, that such price agreement is just, and under varying conditions, will best protect the public health and safety by affording a sufficient minimum price for barber work to enable the barbers to furnish modern and healthful services and appliances, so as to minimize the danger to the public health incident to such work."
The provisions of Section 1 of the Act, as well as of Section 12 (a), plainly declare and clearly show that the establishment of minimum prices for barber work is necessary to secure proper sanitation in barber shops, and, for that reason, the establishment of such prices bears a reasonable relation to the public health.
It is difficult, therefore, to understand how it can be logically held in the majority opinion that no such relation exists. And it is more difficult to understand how there *Page 246 can be any possible discrimination, in a constitutional sense, against the defendants in these two cases, or against any other barber in the Fourth Judicial District of the State, or against the public in that district, when the minimum prices for barber work is the same throughout the Fourth Judicial District; and is the same in the City of New Orleans, in which one of these defendants resides.
In order to emphasize the reasonable relation between the establishment of minimum prices for barber work in any judicial district to the public health, it is further provided in Section 12 (a) of the Act:
"The Board shall take into consideration all conditions affecting the barber profession in its relation to the public health and safety.
"In determining reasonable minimum prices, the Board shall take into consideration the necessary costs incurred in the particular Judicial District in maintaining a barber shop in a clean, healthful and sanitary condition.
"(b) The Board, after making such investigation, shall fix by official order, the minimum price for all work usually performed in a barber shop.
"(c) That if the Board after investigation, made either upon its own initiative, or upon the complaint of a representative group of barbers, determines that the minimum prices so fixed are insufficient to properly provide healthful services to the public and keep the shops sanitary, then the Board from time to time shall have *Page 247 authority to vary or re-fix the minimum prices for a barber's work in each Judicial District."
It is therefore manifest that, under these provisions, the Board does not and cannot fix arbitrary prices for work done in barber shops; but that the very basis of the minimum prices established is their reasonable relation to, and their sufficiency, "to properly provide healthful services to the public and keep the shops sanitary".
If a lone barber in Bernice, Union Parish, in the Fourth Judicial District, or a lone barber in the City of New Orleans, could upset the minimum prices fixed for barber work by the Board in any Judicial District of the State, or in the City of New Orleans, after due investigation officially made, it is clear that the State, in the exertion of its sovereign police power to protect the public health and the public welfare, would have to yield supinely to the individual liberty of contract and to the individual right to the use and enjoyment of property, under the Fourteenth Amendment of the Constitution of the United States, U.S.C.A.Const. Amend. 14.
The result would be an end to the police power of the State. This is not my conception of the law in such cases.
"It is well settled that neither the Fourteenth Amendment, nor any other amendment to the federal Constitution, interferes with the proper exercise of the police power by the state, or by its municipalities, acting under delegated and plenary authority. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; L'Hote v. New *Page 248 Orleans, 177 U.S. [587] 588, 20 S.Ct. 788, 44 L.Ed. 899; State v. McCormick, 142 La. 580, 77 So. 288, L.R.A. 1918C 262; Lacoste v. Department of Conservation, 151 La. 909, 92 So. 381; State v. City of New Orleans, 151 La. 24, 91 So. 533.
"The police power extends to all property located within the jurisdiction of the several states, as well as to all contracts made within such jurisdiction, if such contracts in their execution affect the public health, the public morals, or the public safety.
"The constitutional prohibition upon State laws impairing the obligation of contracts does not restrict the power of the State to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execution of such contracts. Rights and privileges arising from contracts with a State are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same sense, and the same extent, as are all contracts and all property, whether owned by natural persons or corporations. New Orleans Gaslight Co. v. Louisiana Light Co., 115 U.S. 650, 672, 6 S.Ct. 252, 264, 29 L.Ed. 516, 524; New Orleans Gaslight Co. v. Drainage Commission, 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831; Chicago A.R. Co. v. Tranbarger, 238 U.S. 67, 35 S.Ct. 678, 59 L.Ed. 1204." City of Shreveport v. Kansas City, S. G. Ry. Co.,167 La. 771, 779, 780, 120 So. 290, 293, 62 A.L.R. 1512.
In the opinion of the writer of this dissent, the establishment of minimum prices, *Page 249 under Section 12 of Act No. 48 of 1936, for work done in the barber shops in the various Judicial Districts of the State, is the legitimate exertion of the police power of the State, to which the individual liberty of the defendants to contract must necessarily yield.
It is admitted in the opinion of the majority that barbers are not included in Section 7 of Article 4 of the State Constitution of 1921, which provides that "No law shall be passed fixing the price of manual labor", for the reason that they are mechanics. Then, there is no law, State or Federal, that prohibits the Legislature of this State from establishing minimum prices for barber work in the barber shops of this State. And particularly is this the case, since Act No. 48 of 1936 in Section 1 declares that "the barber profession is hereby declared to be a business affecting the public health, public interest and public safety", and is therefore subject to police regulation.
The case of the City of Alexandria v. Hall, 171 La. 595,131 So. 722, is cited in the majority opinion, with the statement that "There is a deadly parallel between the Hall Case and the one at bar". This statement is more rhetorical than accurate. The Hall Case was decided December 1, 1930, or six years before Act No. 48 of 1936 was enacted. It is therefore clear that Section 12 of this Act was not before the Supreme Court when the Hall Case was decided.
Nor was Act No. 247 of 1928, creating the Board of Barber Examiners, before this Court in the Hall Case. In that case, *Page 250 the constitutionality of Section 4 of Ordinance 276 of the City of Alexandria, enacted under Act No. 136 of 1898, and amendments thereto, was assailed and passed on.
This ordinance required barber shops to close at 6:30 P.M. except on Saturdays and days preceding legal holidays. It was attacked as depriving defendant of his property and liberty without due process of law, and as an unwarranted and arbitrary interference with his constitutional right to carry on a lawful business.
It is said in the Hall Case, at page 601, 131 So. at page 724:
"The city of Alexandria has attempted to maintain the constitutionality of the ordinance by the introduction of medical experts who have testified that the longer the hours of work are, the more run-down becomes the system of the barber, and the more susceptible is he to communicable diseases, and that thereby the public health may become endangered.
"In our opinion, the public health is protected by the provisions of the ordinance itself requiring inspection of barber shops, sterilization of instruments, and examination of all barbers suspected of having communicable diseases.
"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 *Page 251 by anything of substance, but rests, in our opinion, upon mere conjecture."
On the other hand, Act No. 48 of 1936 does show the reasonable relation to public health of the establishment of minimum prices for barber work, as it is the means adopted for the enforcement of the Act in the maintenance of necessary and proper sanitation in barber shops. The expense of such sanitary measures is imposed by the Act upon the barber under the police power of the State as a police regulation and exaction, and necessarily adds to the overhead expenses of running his shop.
The Legislature has found as a fact in Section 1 of this Act, that, due to "unfair, unjust, destructive, demoralizing and uneconomic trading practices", and "unfair competition", carried on in the operation of barber shops, "it is impossible for an average barber, although working regularly, to support and maintain reasonably safe and healthful barbering services to the public".
A lone barber in the whole Fourth Judicial District says, to the contrary, that it is possible to support and maintain reasonably safe and healthy barbering services to the public, at less than the minimum prices fixed under Section 12 of Act No. 48 of 1936. And defendant makes this contention, despite "the unfair, unjust, destructive, demoralizing and uneconomic trading and unfair competition", carried on in the operation of barber shops in the State, and declared to exist as a fact by the Legislature itself.
Indeed, he makes this contention, despite the fact that these minimum prices are fixed by the Board upon the agreement of 75 *Page 252 per cent. of the barbers of the Fourth Judicial District, and after the Board itself has ascertained "by such investigations, and proofs as the condition permits and requires, that such price agreement is just, and under varying conditions, will best protect the public health and safety by affording a sufficient minimum price for barber work to enable the barbers to furnish modern and healthful services and appliances, so as to minimize the danger to the public incident to such work".
The complaint of defendant is not that the minimum prices established for barber work in the Fourth Judicial District are insufficient to enable him to maintain sanitary conditions in his shop; but that the minimum prices established by the Board are too high for his particular line of customers.
It is indeed refreshing, in these days of economic depression and recession, to hear a workman complain that the minimum price fixed by a State Board for his work is so high that he cannot make a living!
The same "too high" argument can be made as well against the payment of taxes, although equal and uniform; and against the payment of lawful governmental exactions generally.
In other words, the defendant says to the State, if you want to exercise your police power over my barber shop, you must do so at my individual prices for haircuts and shaves, and not at the uniform minimum prices which you have found, through your Board, to be just and reasonable throughout the Fourth Judicial District, in order *Page 253 to maintain sanitary conditions in the barber shops in that district.
Manifestly, such an argument is unsound and fallacious, since if it is maintained, in this or any other case, it would prevent the proper and uniform exercise by the State of its police power altogether, and would disrupt the orderly functioning of the government itself.
I respectfully dissent from the holdings in these two cases, that Section 12 of Act No. 48 of 1936 is unconstitutional, since, in my opinion, this section of the Act is clearly constitutional as a proper exercise of its police power by the State.