OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable L. J. Sulak, Chairman
Pub110 Health Committee
The Senate
Austin, Texas
Dear Slrr
f the Publlo Health
is Department upon
the oonstltutlonalit The bill would
authorize the State
prloeo for any and usually performed in
the barber business
i 26 1969, ad&resaeU to
rtmeh hod House Bill Ho.
-examined this rubjsot.
House Bill No. 194 read as follows :
oale
of minimum prloes for
all been agree& upon,
have
ltted to the State Beard of Bar-
organlzecl and rspreaentattre
groups of barbers of at least eighty-fire (85)
uer oent of the llcenred barbers in any ocunty of
this State, the Stats Board of Barber Examiner8
shall have power to epprova or disapprove rush
agreements and to declare’,and establish within
euoh oounty, by offlolal order, the mlnlmum
prloes for any Andyall work or s~~r*Lase usually
perfof+med in barber shops.”
c . .
Honorable L. J. Suhk, page 2
Seotlon 4 of Senate Bill Ho.64 reads as follows:
‘The State Board shall have the power to
oonduot lnveatIgetIone an6 hearings of all
oondltiona affecting the barber burineea and
to promulgate rules and regulatione flxlng
the mlnlaum prloes for any and all work or
serrlcea usually performed in barber buslnea-
sea and shops as will best prote& publio
health, pub110 welfare and pub110 aafatr,
and as will enable barbere to furnish modern
and healthful aenloe and ap~lianoea so as
to einlmlze the dangers to pub110 health In-
oldant to such work, taking into oomldera-
tlon the oonQItIon8, oosts and oonvenlenoes
in maintaining aanltary, healthful and olean
barber shops and working oondltlona.”
The emergenoj olauae of House Bill No. 194, Seotlon
16 thereof, and the emergenoy clause of Senate Bill No. 64,
Seotlon 21 thereof, are easentlally the same, Seotlon 21 of
Senate El11 Ho. 84 reading as follorao
“The faot that there Is at present no
law regulating mlnlmum prloea of barber shops,
and the faot that a condition exists in the
barber ~uetaesa:~6r~.~rofeasIoa whleh Is oreat-
lng an unfair, demorallzlng an& uneoonomio eom-
petition and praotioe In this State, vhiah Is
resulting In price outting to the exteet of
llmltlng and preventing barbers from rendering
safe and healthful eervIoe to the publie, an4
la causing to be created an unsanitary oondl-
tlon, oreate an emargenoy and an Imperative
pub110 neoeaalty that the ilonstltutlonal IUS
requiring all bills to be read on three several
%byr In eaoh House be anb the same Is hereby
suspended, and that thl6 Act take effeot and
be ln foroe from and after Its passage, and
it is so enaoteil.”
It warn our opinion that House Bill No. 194 was un-
oonetltutlonal, as stated in our Opinion No. O-850, beoause,
first, there was not a dleoernlble, aubstantlal, and logical
relation between the means adopted by the bill ana the legit-
Ronorrble L. J. Sulak, page 3
IlPate objeota of the exerolae of the pollee power, to-wit,
the proteotlon or the Improvement of the oubllo health, safy
tr, morale, or general welfare. In oonsaquenoe, the bill did
not represent a oonstltutlonal limitation and reatrlotlon up-
on rights otherwise aranteed by the oonstltutlon. In the
aeoond plaoe, House !rIll No. 194 was, in our oolnlon, unoonatl-
tutlonal as an unlawful delegation of leglala.tIve power in
rsapaot to tha provlslona making the authority of the board to
fix prloaa In the barbering profe~aalon dependent upon the af-
flwatlve action of eighty-rive (85$) per oent of the barbers
in a partloular oounty.
Senate Bill No. 64 does not oontaln the provIaIona of
Rouse Bill Uo. 194 vhloh were aubjaot to the aroond orltIoIam
mentioned. The first remains.
The fuwluaantal question arlaing under House Bill
No. 194 as to whether the Legislature may, as a legItImate
objeot of the exerolae of the polloe power, authorlze the flxlng
of prloea In the barber busIneaa, Is the same in respect to
Senate Bill No. 64.
Whether minimum prloea say be fixed br tha State
Board of Barber Examlnero of Itself, or In response to a aub-
miaaIon from a group of barbers in a oounty of this State, Is
Immaterial upon the basis queatlon of whether In any event the
11bertIea of an IndIvIdual guaranteed by the Oonatitutlon may
be thus ourtailed b;r the Leglalature In the exercise of the
polloe power of the Stats.
In oonaequenoe, lt would appear to be repCtltIotaa for
us to again dleouaa this aubjeot exhaustively as wa6 done In
our Opinion No. O-830.
LeglalatIon authorizing the flxlng of prIoaa In the
barber business has never bean before the oourts of Texas.
The oourta In other states are not In agreement upon the quea-
tlon. LegIslatIve acts Involving tho fixing of prloas in the
barber bueInesa have been held unoanatltutIonal and ~014 la the
following aaaes, the oitatlonti of whloh are explanatory of
thalr orlglnr
City of nob118 vs. Rouse, 235 Ala. 622, 1%
Southern 206, 111 A.L.R. 349 (Six Judges In agreement,
one dIsaentlng.)
Honorable L. J. %alak, peg@ 4
City of Nobile vs. Rouse, 27 Ala. APP. 544,
173 Southern 264 (Two judges In agreement, one judge
dIaaentIng).
In 20 Xazaa, 22 Cbllf. App. (26) 161, 70 Pao. (2d)
962 (Qpinlon by full oourt ).
State vs. hoe, 123 Fle. 401, 167 Southern SO4
(Four judges In agreement, two dIaaentIng).
Dunosn vs. City of Dee Uolnea, 222 Iowa 218, 268
N.W. 547 (Opinion by full oourt).
In the following JurIadIotIona, auah legIalatlon
ham been held ooaatftutlonal~
Rerrlng vs. Arnold, 16s Okla. 392, 82 080. (2d1
QW (Plve judgea bgreaing, three diam4nting, one judge
absent).
Board e,i Barber Examiners vs. Parker, 190 La.
214, 102 Southern 488 (On origin81 hearing, Aot held
unoonatitutlanal, four Judges agreeing, three dIaaentIng~
on rehesrlng, Aot held to be aonatltutlonal, five Judgoa
bgreelng, two dlaaenting).
State vs. Faaekaa, $36 Ills. 366, 869 N.Y. 700,
(Four Judges a@ee!ng, three diaaentIng).
State vs. WoNasters (MInn.1. 285 N.fl. 767.
The o InIon of this depcrtment upon the oonatltutIon-
lllty of anr bl P1 proposed In the Leglalature la, of oourae, only
advisory In ohareotar. It daea not have the for-or and lffeot of
a Judgment renflered by ene of our eourta. It la our oonvIotIon,
however, that the statutes oonteaplate, and the te&lalature desire!
our honest and oonaldered Judgment.
It ;r therefore the o?lnlon of this Department that
Senste Bill No. 64~18 invalid. There la absent, In our OpinIOn,
the neocasory and lubstentlal relntlon between the method and
mama ~dovtea by the hot and, the proteotlon of the pub110 health
or general welfare. A oopy of our Opinion No. O-880 1s enoloaed,
In which this qusetion Is exhauatlrely dIsouaaed In relation to
House Bill No. 194 at the 46th Leglelsture. We re-afflm the
HonorableL. J. %alak, ~hrS.xmn, paga b
oorreotn888 of thir opmon 0d a80iu0 011~opinion to be th08
0enatr Bill 64 ir llkerlro unoonotitrttotml.
APPROVEDAPR 4, 1941
kL,U