-...
s 37t
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
to the St&e law, makeaadditional
requirements an4
repActlon8. In other WQX-&J,the State law aay8 that
en Individual zag follow the oaaupation of barbering
in Toxae upon amplianae with certain epeoifled m&M-
tions aa to lioense, payment of oertatn feb(l,display
of certifioate of liaenee, phyricul fitness aud eta.;
nhnrcas, the %m Angelo ordinance 6age tbatYOU eanxbot
follow this oaaupati.onIn San An@10 although mu have
complied with all requirementa of the State law, rithout
secur1n.gan eddltionnl license fmn; the oity end payl~g
additional fees therefor.
As hearing on suoh a situation, we quote fraa
the following ce~ee a~ indicated. TX Parts Prewer, 168
EX 1068, a& pap3 1069:
Yhere Is no inhibition in the ocnstl-
tutl@n or laws of this state rhlah till pm-
rent the alty frax deali% with a matter with
which the state laws do not deal where th'b'j--
xepo\vs ccnfe&drcnhe alty....*
Punderscoring ours I.
The Cltp of 3ouatrn vs. Richter, et al, 187 53'8
189,
"Thheterm of the ordinance of the olty
have been heretorare set out. Tha effeat of
it.8provisions is to prohibit, under penalty
or rine, any plwber, who boa reoslvsd this
liaense from the board of emminers under the
provisions 0r the statutes, from exeruising
t!-eprivileges ~lven him by the statutes, un-
leas he twther i-$vesthe bond provided by
the ordlnanae and reaelves a further llasnao
from the City of Ruston, issued by the oity
en~hear.. .. We think It is too olear for
argument that the ordinance In quOSti0a is In-
oc-sintent with the ntntute rarerred to."
!.?essaohusettn
Bonding k Innuranae Company, et
nl VE. ‘;’aKay, 10 SK 2nd 770, et pay? 7711
"In u surrlmental brief, arrallents urm
aa ilrndmental errorthot the ordfnanoe in
yestlon, requlrlng plumberm to exeoute a
$3,000 bond in order to procure a lloense
to carry on their business in the oitf of
Dallaa, Is unoonstitutlonal and void, and
that thereiore said bond ereouted puBJuan%
thsrrto la of no foroe and effect. Uo think
their crontentinnin this rsspeot Is ala0
Rood. In Articles 1076 to 1061, R. 8. 1925,
the IeSlsloture has requl.redthat-plumbers
In oitJoeand towns of mre than 5,000 lnhabl-
tante be liconeed before they ean operate,
and has undertaken to mgulsto the manner
in which such lioanse ahall be issued. !Fha
statute ltsol? does not provide for any bond
to be ereouted as a prerequisfte to the eon-
Ccurt or Civil A>psals, in IIoustonv. Rlohter,
147 SW 169. This holding was aCain erpreaaly
recognized in Xydlas Amsemont Co. v. City
of Houston (Tex. Civ. rp.1 185 SW 416. See,
alao, Pariah v. YrfChht
4 Tex. Civ. App.) Z93
SW 659. And this general law of the state
applies tc the city of L\Rllas,irrespeotive
of the provisions of its speoial charter.
3~~1s ve. Eolland (Tex. Civ. Apy.1 168 SK
11; I'arrishVS. %+ht, supra. Said ordinanoa
lr,>osinCadditlcnal turdcns to those requ:red
by the otute ~RW upon plmhers within that
city was lnconslatont with and in confliot
with the state law, end was thereicre void.
It follows then thet oaid bond Given pursunt
to suoh ordinance ~58 likcwloe void."
xydias A!!use~:rnt
CWyany VG. City or "owtotl, lR5
415, at j-ace 420:
,,'
"The true rule is, xs?;cre
the state law
Eion.Ralph Logan, Page A
speaks, the olty ordinance muat be ellent:
whers the stats law Is silent, the oity mwt
8peak.”
See ala0 the oaaen of !.kutelvu. State, 117
X 85.Sand Robinson v8. City ai Qalveaton, 111 8W 1070.
Wo eonolude, therefore, that the 6an welo
mdlnanee, In Its requirement ot an eddltional llamao
‘rcna the CItp of San Angelo and of tha payment of addi-
Aonal fee8 to the City of San melo, Invades a field
lf lcgialation already usurped by the Legislature of
'exae.
It 18 Si@lifiOOilt, and oonclu8Ive on Its In-
alidity, In these portioulars, that the mqulrementa of
he ordinanoe do not enlarge upon and add to the require-
enta of the state statute In apeclflo matter8 pertalnl~
o the protection of the pub110 health. In 8eotIons (a)
nd (b), the health requirement alreedy enaoted Into
tate law, and subject tc lnforcsnent by the paliee ds-
ortnent of the City of San Arieslo,are made a part of
ho ordinance es~touohlag such Eattsrs. The ordlnanoe
lzply retgilns a barber to have an addItIonal lleenee
ram the City of San W,elo, and to pay an aCdltlona1
ee, to-wit, $1.50 for three months; %!J.OOfor six months;
5.00 for twelve months.
'Under the deCIBIOnB oi tha oourta of Tam, eet
It above, It is cur opinion that thcns provleloae a? the
rdlnance are olearly invalid.
Fe now ccncider Secticn 5 of the ordinanoe which
,&d8 83 r0ii0nrs:
"It shall be unlawful and an offense for
the cwner, manager, proprietor or person in
ohnrge or nny barber shop to Temit or ailow
any suoh shop tc razaIn open for husInsss or
to permit or allow ths prnctioe of barbering
in said shop on Sunday or at any othor tims,
except between the hours c:f0~00 o'clook A. ?f.
and 9:00 o~olock I'.!.!.
cn taturdcys and be-
tween the hours of E:OO olclock A. 1:.and 6:OO
o'olook 2. Y. cn ot!:erdey3 In thn week."
Hon. Ralph Logan, Paage5
In this uonneotlon, may no point oat rtrrt that
the ordinance treats or the houn within which 8 barber
ehop may remain open, and dosn not treat as to the hours 4
barber pay work in suoh shop. Henoe, the mlidlty or
regulation, suggested by gou.. in ;lour brie, with rersr-
enoe to the hours women and Ohlldren may work, would not
cmem to be analagous. The courtr in the oarsa later to
be noted &early make this distlnotion.
There 18 no 8tate statute regulatlne the hours
la whioh 8 barber ehop may remain open. Nalther have we
been able to find Ln our reoe8roh a Texas oaae pearing on
this question as pertaining to barber *hop.
IVlthmrerence to euch an ordinanoe toaohing
pool halls, the court in the oam of Ex Ferte Brewer,
eupra, eaya:
*There is no inhibition in the oolutitatlon
or lavieor this state which will prerent the
alty rrom dealing with the matter with whiah
the state laws do not deal whom the pollee
power Is conferred upon the oity, and the stat.8
in its 1~15, having fixed no hours of olorlng
ror pool halls, it being a subJoot or regula-
tion, such houra may be regulated by the city
within reaeonable lir.lta.*
The court, in this quotation, touohm upon the
two questions involved in any legislation or an oocupatlon
aa to the houra it shall remain o II: (1).It suoh ocoupa-
2) If the regulation
tion 18 a subjaot or regulation; 5"
la reaeonable. The auawer to these questions involve a
large rleld or the law.
KO qhote from Folume 30 Or Terar TuriSprUdenOe
at pagea 120, 121, 122 and 123:
Wenerally apeaking, mnicigal oorpom-
tiona have the right, under the police power,
to safuguard the health, corrirortandgeneral
welfare or their citizens by suoh reasonnble
rogulatione ae are necessary for that ptipoe8.
The police power is not an arbitrary one; it
has lte llmltatlono. Thus it ie aubjeot to
the limitations imposed by the constitution
upon every gower of government, and will not
be periiittadto invade or lmpalr the rundaffien-
tal liberties or the citizen. Also, it 16
founded In public necessity and only public
)n. Ralph Logan, Fake 6
necessity can justiry its sreroise. It Is
oofmensurate with, but does not exoeed, the duty
to provide r0r the real needs 0r the people in
their health, sarety, oomfort and oonvenlonoo
aa oomlatently as may be with privets propar-
ty righta. The interest of the pub110 gsner-
ally, aa dIstInguIshed rmm those or a parti-
cular olaes, mat require the Interfere&me.
*A11 property la held aubjeat to the
valid exera:ss of the polled power; nor are
regulations uhconatItational fierelybecause
they operate as a restraint upon private rights
0r persons or property or ~111 result in lose
to individuals. The Infllotfoa of auoh 1068
is not a deprivation of property without dua
procere or law; the exertion 0r the pollee
power upon subject8 lying within its eoope,
In a proper and lawful rminer, is due procrm
0r law . . . . But the pollee power is eub-
ordinnte to the right to acqufre and own prop-
erty, and to deal with it and use it 81)the
owner ohooaea, so long as the use harm no-
body. It may be invoked to abridge the right
of the oltlzens to use his private property
when euch uso will endanger public health,
at3r8ty’, coarort or welfare, - and only when
this eltuatlon arises. . ..
‘The police power authorizes only such
aeasurea as are reasonable; to be valid aa an
ererolse of this power, an ordlnanoe must be
reasonable in its operation upon the persona
whoa It effects and met not be unduly opprer-
8lW - that la, it must appear that the meana
adopted are reasonably neoeesary and eppro-
prlata ror the aocompllsfment of a legitimate
objeat ralllng within the doslalnof the polfao
power.fl
These rany conslderattona, aa pertaining ,to
arber shops, have never been rezolved by a Texas oourt,
ooking to other jurisdictions we find the greet weight
f authority holding legislation regulating open houre
or barber shops to be invalid. ‘::eshall brierly review
hese.
Hen. Ralph Logsn, Faw 7
The Su~rara Court of I?lnneeota,ln 1938, in
the cesa of State vs. Johunnos, 259 XT 557, held swh
an ordinance unconstitutional and oaf4 and aa vial&
tlve of the due Croccaa clauoos of the State and 2bderal
constltutlons, the ccurt saying%
wElght tlreo have such otilnanoes boon
berore the courts of last roscrt in thts
oountry and aeven tlmos have they been held
lnv8lltlas unjustifiable attempts to exeraism
the polioo power.'
The Guprmc Court of~!lohlgan, in l9S7, la.the
ease of Eanea YS. the City of Detroit, 279 Yloh. 551, 272
5W 896, in holding suoh an ordfnanoe imall says:
"By the urnat weight of authorltlos, the
ordinance at bar, so far as It fixes open
houre for barber shops, is not aithln the
police power md, in that particular, la raid."
The Euprene Ccurt at ?:ashln@on; in lo?&, in
the ease of Patton vs. Clty of Ellllnghsm, 38 Pea. 2nd
364, holde suoh an ordlnaaoe unreasonable, arbitrary and
void, the ocurt rerarklng that such an ordlnanoe doea
not regulnte the business of barberlna, but dlotaterr its
operations.
The 2uIqvre Ccurt of Rhode Island, in 1858 in
the oese of Anltrano vs.. Earbero, 1 Atl. 2nd LOO, hoida
such leglsletlon &vzonstitutionol saying;
hav0, therefore, determined to r0uow
wx':e
the decisions of those ocurto, representing
the great aelgl:tof authcrlty, which has dsold-
ed that legislation of the type before us 1s in
violation of the approI:rlateFrovlslcns of the
Fedora1 and State Constitutions."
Court of Vyomlng, in 1929; in the
The Cu>:re::o
ease of State vs. City of X.sranle,275 Pao. 106, held euah
leglslatlon not to ?~ea reasonable exerolse or the power
to llcsnse, regulate and control barber shops and there-
rore invalid.
Uon. Ralph Lomn, Page 8
The Supreme Court of I'isslsalppi Divieion A,
in 1931, in the c~ee of Kid&t vu. Johns, 137 80. 509, held
suah legislation to be en unreasonable ereroise of the
FOliOa power.
The Supreme Court cf Louisiana, in 1950, in the
~830 or.clty 0r Alexandria vs. Eall, 131 So. 7W, 171
La. 595, held auoh an aot unoonstltutlolul.
Xe have eldlar c?eclslonsby the Supreme Co&
of Colorado lh the aaae of City an4 County of Denver vs.
Sohnid, 52 Fao. 2ne SE& in 1935; by the Suprosm Court
of Caltiornle, in 1935, In the case of tinloy TV. Playerr,
Court of Georgia, in 1927,
40 Fee. 817; by the Suy,rer?e
in the oaae of Chairea et al VS. the City oi Atlanta, 164
Ca. 755, 139 FX 559; by the Supreme Court of Torntssaee, fn
1959, in the case or State v8. Greaeon at al 124 SW 2nd
253; end by the Supreme Court of Oklahoma, 1638, in the ease
Oklahoma Clty.vs. Johnson, 02 Pee 2nd 1057.
Finally, we note the oylnlon of the Supreme
Judlolal Court of l'ascachueetto,in re Opinion8 of the
JustIces, 14 XT 2nd 933:
The questions relate to a pending bill
which regulates the hours or opening and oloa-
lrq of barber shops by provlBl.ngthat they
ahell not be open earlier then 0~00 o'olock
in the ~fore-noon, nor renlalnopen later than
6100 o'olook in the aiternoon,durlng part of
the yesr and 7~00 o'clock in the afternoon
during onoth?aPpart 0r the ymr, exoept that
on Eaturdayn end the evcnlng beiore eaoh
lege.1holldyy they my remin open until 9:00
.... The preolse point involved in theao
questlens have nrfeen in other jurlsdlotlone.
The groat weiE;htof nuthority, in both sound-
ness 0r remming an4 nmber or eoclslons,
holds thnt l~~lalatlcn cf this nature violates
the provislrm of state an4 iederal constltu-
tiom.* (Citfne oesc:sfrm t?.evp.rIoue Jurls-
dfotlans. )
Jurisdictiona holdirq the opposite vlaw, lneotmr
as we havr been able to aroertaln me represents4 in the
IfOIl. r?alphIo.pm, Fsge 9
follouln$ c5ses:
Seldman vs. Ci.nclnnatl,20 Fad, Sup. 531;
Faloo vs. Atlnntio City, 99 I?.J. 1. 19, 121 A. 610;
Zilson vs. Zenssvllle, 150 Ohio Stats 2S6 199 IZE18'1.
The letter tprocases hold that ouch legisktion la not
unreasonable, hae n real and substantial relation to
public health, morelo and safety and is a valid exam-
cise of thd po1loe povrer,end Is oonstltutlon~l.
The case of S4ldxen vs. Clnolnnatl, 20 Fed.
Sup. 531, oitcd by you in your briai, ~48 a deolslon oi
tha Federal District Court of Ohlo where the Gupxmme
Court of Ohio, in the oasu of Wilson vs. City of !&men-
ville supra, had held suoh legislation to be valid end
oonstitutional. Further, the oourt a8 stated at page
542 of the opinion Indulged erary presmytloa in favor
of the oonstltutionallty of the legislation and further,
that It had not beon "tahownbeyond a rational doubt" that
such legislation violated any of the Frovislons oi the
constitution 0r the United States.
lie are unable to prediot how thu oourtfdof
Texae will aonstrue a provision such ae that a? the or-
dinance at hand. Preoedents established by our oourte
in passing upon similar le2lslatlon pertaining to other
businesses or ocoupetlons are of little help because
of the facts and circumstasccs peouliar to eaoh business or
occupation. As said by the court in the case of the State
vs. Johannes, supra:
"If vi4 wei- to atteqt tc formulate a
ccmprehensive definition of uhat my or may
not be a proper exercise of the police powur,
w4 muld be oonfronted with a task oi almcst
inourmcuntable diffioulty. It has been eald
that the pomr Is inaapoble or derlnition."
It is believed, however, that the zajorlty view
Is hasad upon scuscflrreasoni~nC4s Illustrated in the
following sxerpts frm the opinion of the Yassachusette
:luprcneJu~iolal Court:
The occupation @,Ibeing.a barber is an
anoient and lawful business. Farber shcpe
ar4 not ohnoxious, but are oomcr;ly regarded
es inc?ln~onsableunder Fresent conditions...
Their rclatlcn to the *uhlic is such as to
Hon. Ralph lo&an, Page 10
rendar them amenable to legislative ragula-
tlon to thn end that those who frequent thean
for the service there rendered may be proteot-
ed from oormunioable dieeases, unhsalthful
praotloes, and unsanitary aondltlona so far
as prootloable.... The proposed bili does
not in term shorten the hours of labor ci
barbers. It does not purport to do that. It
merely limits the houre during which barber
shops may be kept open.... We are unable fo
psr44lvs how the llmltationa of the proposed
bill are founded upon any reasonable relation
between the sots forbidden and the pmrotion
of the public health or the public plorala.
Parber shops may be aubjeotad to mfplation
for proteotlon of the pub110 health and morals.
The proposed bill oontaina no rules drdgnated
to proreote olennliness, or to Inaura sanita-
tion of barber shops. Provieions to aooompllah
such ends is found In the power to pmrulgate
reasonable reg0utions by the Icoardat lie&a-
trution of barbers, in the atetutea already re-
rerred to and In the rl@t of lnapsotlon of bar-
ber shops.,.. Shortening the houra during whiah
barber shoPa may be kept open would not faollltats
the inspeotion of barber shopa. Thers 18 ample oppor-
tunity for inspection of barber nhope without
olosing them. Ths suSgestlon that the prop@sed
statute would 'further Proteot the publio againat,
communicable diseases by conserving the energy
of Jcrsons working therein end n;lvlnKthem a
reasonable mount of tim to attend to proper
sanitetim thsrcsin,* seems almcst ianolful.
'Th441ergy such to be conserved is not obvious,
nor is the proteatlon of the public from comunl-
cable diseases.... There ore'msny barber shopa
in the Comzonxeelth cprrated by the proprietor
without hels. It might well be a great hardship
for suah harbor not to confcrm to the need8 cf
his oustor.eraas to the hours of koepln(:hi8 shop
open. It mi.Sht Interfera to a great extent wfth
his business end his Income to comply with the
hours prescribed by the proposed bill.... The
Eon. Ralph l.ogsn, FM8 3.3
propoead
_ bill rlole~tsafundamental,
_ oonstitu-
timal guarantees 88 deprlvln& parsons ot
liberty end ppropetiy without dUB p~WOes8 of
law end as denying peraone the proteat~on of
liberty end property eooording t0 &ending
laws. It impose8 limitations that are unto+
rtltutlollal."
You ara thereiore respeotfully advised that It
s the opinion of this department that Emotion S of the
1;
rdlnnnae of the City of San Angelo, regulet%ng the
&ours wltb!n whiah barber shops ray xemln open, 1s un-
00nstitutlonal.
X0 trust this amwsrs your lnqulry satfataotor-
lly, and ra?aln
Vary truly your8