It must be conceded, as stated by Mr. Justice Geraghty in his dissenting opinion in Patton v. City of Bellingham, 179 Wn. 566 (38 Pac. [2d] 364, 98 A.L.R. 1076 [this case is discussed in the opinion of Mr. Justice WIEST]), "that, if the validity of the ordinance here challenged is to be tested by the weight of past judicial opinion, the conclusion must be against the ordinance." However, many of the cases involving similar statutes and ordinances, were determined by divided courts, the one just cited being a five to four decision.
Stripped of all pretext, the underlying purpose of the ordinance under consideration is to curb or regulate competition of a chain store character in the barber trade in the city of Detroit. By working their employees in two or three shifts, the larger downtown and chain barber shops can keep open for as many hours as they desire, and in one instance, as is shown by this record, for as many as 24 hours. In order that the owners and employees of the one, two or three-chair barber shops may exist, they must *Page 540 meet this competition, thereby depriving themselves of needed rest, recreation and leisure.
As was said by Mr. Justice Blake, dissenting in thePatton Case, supra:
"The power of the government to enact legislation to alleviate such conditions is inherent. Such legislation is grounded in the government's 'right to protect all persons from the physical and moral debasement which comes from uninterrupted labor.' Soon Hing v. Crowley, (113 U.S. 703 [5 Sup. Ct. 730])."
To this quotation may be added the further observation of Mr. Justice Field in the Soon Hing Case (involving an ordinance limiting the hours of operation of laundries) that
"Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and work shops, and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the States."
See, also, annotations in 98 A.L.R. 1088.
The opinion proposed by Mr. Justice WIEST holds the ordinance in question good except as to that portion which fixes the hours during which barber shops may remain open; my brother says that provision is void because it is not within the police power. A similar conclusion was reached by the majority of the court in Lochner v. New York, 198 U.S. 45 (25 Sup. Ct. 539,546, 3 Ann. Cas. 1133). The principal dissenting opinion in that case, involving a New York statute limiting hours of employment in bakeries to 60 hours a week and 10 hours a day, was written by Mr. Justice Harlan with whom Mr. Justice White and Mr. Justice Day concurred, Mr. Justice Holmes dissenting separately. *Page 541
In considering Const. 1908, art. 5, § 29, before it was amended to include the hours of employment of men, as well as women and children, it was determined by this court that an act regulating hours of labor of females employed in factories, mills, stores, shops and warehouses (Act No. 285, § 9, Pub. Acts 1909, now stated in 2 Comp. Laws 1929, § 8324) was a valid exercise of the police power, and that it did not violate the Fourteenth Amendment to the Constitution of the United States and was not class legislation. These views of the court are expressed in Withey v. Bloem, 163 Mich. 419 (35 L.R.A. [N. S.] 628), the opinion being replete with citations to authorities on the subject, and includes a consideration ofLochner v. New York, supra.
I refer to and adopt without repeating the language inWithey v. Bloem, supra, quoted on page 430, which is from Cooley on Constitutional Limitations (7th Ed.), p. 554.
In addition, I believe the following statements from the text of the foregoing authority are also applicable:
"In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion." Cooley on Constitutional Limitations (7th Ed.), p. 126.
The same authority says, at page 232:
"Nor can a court declare a statute unconstitutional and void, solely on the ground of unjust and *Page 542 oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the Constitution."
And at page 236:
"The rule of law upon this subject appears to be, that, except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of rights, reason, and expediency with the law-making power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the Constitution, and the case shown to come within them."
The foregoing statement of law was adopted by this court inCummings v. Garner, 213 Mich. 408, at page 424.
I am unable to distinguish People v. Gibbs, 186 Mich. 127 (Ann. Cas. 1917B, 830); note 31 A.L.R. 299, declaring an ordinance of the city of Detroit invalid which prevented public auctions except between the hours of 8 a. m. and 6 p. m. Whether or not the *Page 543 Gibbs Case is overruled by implication in Saigh v. CommonCouncil of City of Petoskey, 251 Mich. 77, where we approved an ordinance prohibiting certain types of auction, is unnecessary for determination at this time. It is sufficient to say that the instant opinion directly overrules People v. Gibbs, supra. See, also, City of Roanoke v. Fisher, 137 Va. 75 (119 S.E. 259); Holsman v. Thomas, 112 Ohio St. 397 (147 N.E. 750, 39 A.L.R. 760) and Barbier v. Connolly, 113 U.S. 27 (5 Sup. Ct. 357).
The proposed opinion of my brother does not question the power of the city council to enact an ordinance regulating certain practices in the barber trade. In this I concur, but in addition thereto, I cannot find any prohibition in either Constitution or charter against that portion of the ordinance to which my brother objects. For the reasons hereinbefore given, I believe the regulation of the hours of operation of barber shops is within the police power.
The decree should be vacated and one entered here sustaining the ordinance, but without costs. It is so ordered.