I concur in the dissenting opinion of Mr. Justice LAND.
The occupation of barber operates directly on the person, thereby directly affecting the health of the public. And because of its intimate relation to the public health, it may, under the police power, be regulated by law without depriving a citizen of his natural rights and privileges guaranteed by the fundamental law. 7 Am.Jur., pp. 613, 614.
A barber is a public, not a private, contractor. His business contacts are exclusively public in character. The nature of his occupation requires him to serve all persons who apparently in good physical condition apply for his services in the turn in which they apply. His calling represents an essential activity incident to the welfare of every community in a state. *Page 254
Realizing these conditions, legislatures in many states have imposed burdensome regulations upon persons engaged in operating barbershops, to the end that the public health may be protected. Statutes of this kind have uniformly been held to be valid. 7 Am.Jur. p. 614. This state has adopted such legislative acts. See Act No. 247 of 1928, Act No. 126 of 1932 and Act No. 48 of 1936.
If the legislature has the power in the interest of the public health to impose burdensome regulations on those engaged in the operation of barbershops, I cannot see why it should not have the power to protect those upon whom it imposes the regulations from unfair competition and ruinous practices.
The provisions of Act No. 48 of 1936, which is under attack here, are sufficiently set forth in the majority opinion by Mr. Justice Odom and the dissenting opinion by Mr. Justice Land, and it is needless for me to repeat them.
Section 1 of Act No. 48 of 1936, declares that the barber business is one affecting the public health, interest and safety.
The right to make contracts, in the field of state action, is subject to the essential authority of government to maintain peace and security, and to enact laws for the promotion of health, safety, morals and welfare of those subject to its jurisdiction. Chicago, B. Q.R. Co. v. McGuire, 219 U.S. 549, 31 S.Ct. 259, 55 L.Ed. 328.
In that case it was also held, citing many others to the same effect, that freedom of *Page 255 contract is a qualified, and not an absolute, right; that there is no absolute freedom to do as one wills or to contract as one chooses, and that the guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or to deny to government the power to provide restrictive safeguards.
See to the same effect State v. Payssan, 47 La.Ann. 1029, 17 So. 481, 49 Am.St.Rep. 390, reaffirmed in State v. Morris, 47 La.Ann. 1660, 18 So. 710; West Coast Hotel Co. v. Parrish,300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330; Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469.
In the Nebbia case, the Supreme Court of the United States speaking through Mr. Justice Roberts, said (page 510):
"Under our form of government the use of property and the making of contracts are normally matters of private and not of 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."
In the Nebbia Case the court 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 *Page 256 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 property is devoted to an enterprise of a sort 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."
The court then proceeds to state the principles of law, which in my opinion, are appropriate to the instant case, as follows, viz.:
"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 is in this case no suggestion of any monopoly or monopolistic practice. It goes *Page 257 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 price, the state is incapable of directly controlling the price itself. This view was negatived many years ago. Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77." The court then goes on to discuss and show the applicability of the decision in Munn v. Illinois, supra.
In the Nebbia Case, the legislative enactment which resulted in a fixed price for the retailing of milk was maintained against an attack that it contravened the equal protection and due process clauses of the federal constitution. In commenting upon that decision, Ambrose Doskow, in "Historic Decisions of the United States Supreme Court," says:
"The precedents on which Nebbia's counsel relied * * * were the cases in which price-fixing had been held to violate the due process clause on the ground that the *Page 258 business to which it was applied was not one `affected with a public interest.' The regularity with which the Court had invalidated price-fixing statutes, and the sweeping language it had used in doing so, had given rise to the belief that the test of due process of law, vague and varying in other circumstances, imposed a specific rule that the direct fixing of prices is always an unwarranted interference with liberty of contract except in a business that meets the magic formula that it is `affected with a public interest.' The opinion of the Court by Mr. Justice Roberts repudiates this view and places price-fixing with other types of restrictions on the use of private property as one which is invalid only if arbitrary in its particular application. The earlier cases are not expressly overruled, although the ground on which they were placed is swept away by the statement that they must rest on the fact that they were found `arbitrary in their operation and effect.' * * *
"The case is significant in showing the disposition of the majority of the Court to rely on the cases in which legislative action has been upheld under the due process clause and to derive from them a broad rule of legislative freedom."
In the Nebbia Case, the price fixing feature of the New York statute under attack was upheld, not because the milk industry was affected with a paramount public interest, but it was upheld because it regulated in this regard an industry which is so affected with a public interest as to be subject to legislative control under the police power, and, it being admittedly, subject *Page 259 to such control, the control could be exercised in part by the fixing of prices.
The law involved in the Nebbia Case is strikingly similar to Act No. 48 of 1936, which is the law involved in this case. As shown by their respective legislative declarations, the object sought to be obtained in both statutes is the protection of the public health and the public welfare and interest.
Act No. 48 of 1936 itself is not unreasonable, arbitrary or capricious, and the fixing in accordance with Section 12 of the statute of such minimum prices as are "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" bears a substantial and direct relation to the object of the legislative act.
It is true that in the case of the statute involved in the Nebbia Case, an investigation had been made by the legislature through a commission appointed for the purpose, and the legislative findings were based upon that investigation. No special investigation was made through a commission by the legislature of this state to support its declarations contained in Section 1 of Act No. 48 of 1936, but the act is not invalid for that reason. In the case of Townsend v. Yeomans,301 U.S. 444, 57 S. Ct. 842, 81 L.Ed. 1210, decided by the Supreme Court of the United States, since its decision in the Nebbia Case, the proposition has been squarely passed upon, as *Page 260 shown by the following quotation from the Townsend Case, viz. (page 847):
"Appellants contend that the legislative action was taken without investigation and hence must be considered to be arbitrary and beyond the legislative power. There is no principle of constitutional law which nullifies action taken by a legislature, otherwise competent, in the absence of a special investigation. The result of particular legislative inquiries through commissions or otherwise may be most helpful in portraying the exigencies to which the legislative action has been addressed and in fortifying conclusions as to reasonableness. Nebbia v. New York, supra, 291 U.S. 502, at page 516, et seq., 54 S.Ct. 505, 507, et seq., 78 L.Ed. 940, 89 A.L.R. 1469. But the Legislature, acting within its sphere, is presumed to know the needs of the people of the state. Whether or not special inquiries should be made is a matter for the legislative discretion."
There is no evidence in the record to refute the legislative finding. The presumption is in favor of the existence of the facts found by the legislature, and the burden was on the dependent to show that the legislative action is unreasonable and arbitrary. Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281.
In this case not only did the legislature recognize the necessity for the regulation of the minimum prices to be charged by barbers for their services, but also it has exercised its power to establish such regulation in a fair and reasonable manner. The *Page 261 statute permits the barbers themselves in each judicial district, not by a bare majority, but by a necessary three-fourths of those engaged in the business, to fix the minimum prices for their services. In addition to this, the fixing of these prices must be approved by the State Board of Barber Examiners. Therefore, before any price can be fixed at all, three-fourths of the barbers themselves must agree, and then the Board must approve their agreement.
Another case in point is the case of Max Factor Co. v. Kunsman, 5 Cal.2d 446, 55 P.2d 177, 178, in which the Supreme Court of California recently upheld the right of the legislature to pass a law allowing the fixing of prices under a code of fair practice. In considering an attack upon the provisions of the statute, the court said, at page 183:
"The fact that a statute limits the rights of the owner of property, lowers its value, or limits its use, or limits the right of free bargaining in other ways, does not, of itself, determine the validity of the enactment.
"There are innumerable illustrations of statutes, passed under the police power, which interfere with the right of free bargaining which have been upheld on the theory the regulation is in the public interest.
"There are limits to this power, of course, but within those limits the Legislature is supreme. * * *
"As the state progresses, the police power, within reason, develops to meet the changing conditions." *Page 262
And at page 184, the author of the opinion continues:
"The police power is no longer limited to measures designed to protect life, safety, health, and morals of the citizens, but extends to measures designed to promote the public convenience and the general prosperity." Nebbia v. New York, 291 U.S. 502, [54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469]; Munn v. Illinois,94 U.S. 113 [24 L.Ed. 77].
The evidence produced by defendant in support of his attack on the statutory provision on the ground that it deprives him of the right to earn a living is extremely meagre and wholly unconvincing. Apparently defendant is the only barber within his judicial district who is unable to survive by charging for his services the minimum prices fixed for his district under the authority of the legislative act. No other barber within that district is before the court complaining of those prices. This ground of defendant's attack on the statute overlooks the necessity impelling the legislature to enact it, namely, to enable the barbers to render and maintain reasonably safe and healthful barbering services to the general public as required by the laws of this state. It also overlooks the fact that more than three-fourths of the barbers residing and operating within the same judicial district as the defendant have determined and declared that they can only earn a living and at the same time comply with the regulations established by law if the minimum prices which they have agreed upon, with the approval of the Board of Barber Examiners, are put into effect. *Page 263
So far as the law is concerned, I think this particular ground of defendant's attack on the statute is controlled by the recent decision of the United States Supreme Court in the case of Hegeman Farms Corporation v. Baldwin, 293 U.S. 163, 55 S.Ct. 7, 79 L.Ed. 259, in which among the legal principles announced are that if the designation of minimum prices is within the scope of the police power, expenses or losses made necessary thereby must be borne by the dealer as an incident, unless the order goes so far beyond the needs of the occasion as to be turned into an act of tyranny, and that the Fourteenth Amendment, U.S.C.A.Const. Amend. 14, does not protect a business against the hazards of competition.
I think, also, that the decision in the case of Allopathic State Board of Medical Examiners v. Fowler, 50 La.Ann. 1358, 24 So. 809, is also controlling of defendant's attack on the statute predicated on the ground that it deprives him of his right to earn a living.
In the Fowler Case, this court held that the right to practice medicine is not an absolute natural right, but a right or privilege to be exercised under conditions and limitations regulated by legislative authority, and that a statute regulating the practice of medicine is not open to attack as depriving citizens of their right to earn a living.
In the Fowler Case, the court said (page 815):
"There can be no question of the right of every citizen to earn a living. Any statute attempting in general terms to prohibit a person from doing so would be utterly null *Page 264 and void. There is a very great difference, however, between so radical and sweeping a prohibition and a prohibition extending either absolutely or conditionally to certain specified pursuits which the legislative branch of the government, as guardians of the public good and general welfare, should declare dangerous to the community, and necessary for that reason to be either entirely suppressed or exercised only under certain circumstances, conditions, and limitations. Article 2626 of the Civil Code declares that: `The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses under the protection of the law any particular property is tacitly subjected to the obligation of yielding it to the community whenever it becomes necessary for the general use.' The same principle finds expression in article491 of the Civil Code, which declares, relatively to the ownership of property, that perfect ownership gives the right to use, to enjoy, and to dispose of one's property in the most unlimited manner, provided it is not used in any way prohibited by law or ordinances. The necessity of subordinating individual rights of one person to the extent necessary for the protection of the rights of others is announced also in articles 666 and 667 of the Civil Code."
In my opinion, the principles announced in the Fowler Case are appropriate to the issues involved in this case.
In my opinion, also, the cases of City of Alexandria v. Hall,171 La. 595, 131 So. 722, State v. Ives, 123 Fla. 401,167 So. 394 and City of Mobile v. Rouse, 27 ALa.App. 344, *Page 265 173 So. 254, are not appropriate to this case.
The distinction between the case of the City of Alexandria v. Hall, supra, and this case is pointed out by Mr. Justice Land in his dissenting opinion and it needs no further comment.
In State v. Ives, supra, the Supreme Court of Florida was closely divided. Three Justices approved the decree, and two Justices dissented. One of the approving Justices, whose vote controlled the decision, concurred on the sole ground that the Florida statute required the State Barber Board to fix the prices generally throughout the State of Florida, or in any county thereof, which he stated was incapable of being put into practical operation. And the main reason for the decision appears to be the limitation which the statute placed on the judicial power so as to deprive the circuit courts of the state of their judicial power under the Florida Constitution.
It is true that in the Rouse Case, which was a decision by the Court of Appeals, and not by the Supreme Court of Alabama, and which was also by a divided court, the majority of the court held that the barber business was not affected with a public interest in such a sense as to justify the regulation of charges for barber work. But that holding was not necessary to the decision; the principal reason for holding the ordinance involved invalid, and the only one necessary for the decision, being that the statute under which the ordinance, resulting in the fixing of minimum prices for barber work in the City of Mobile, was passed authorized such action only in Mobile, *Page 266 that being the only city affected under general language including only cities of not less than 60,000 nor more than 250,000 population.
I fully agree with Mr. Justice Buford of the Florida Supreme Court, when he says in his dissenting opinion in the case of State v. Ives, supra (page 412), that: "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 with 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, 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."
For the reasons stated, I respectfully dissent from the majority opinion and decree in this case.