State v. Walker

Mount, J.

The respondent was charged with the offense of practicing the occupation of barbering in the city of Tacoma, without having obtained a certificate or license therefor, under the act of March 18, 1901. (Laws 1901, page 349.) The lower court sustained a demurrer to the information, upon the ground that the said act is unconstitutional, and dismissed the action. The state appeals.

The only question in the case is whether the act is valid under the state and Federal constitutions. In the case of State v. Sharpless, 31 Wash. 191, 71 Pac. 737, 96 Am St. 893, the validity of this act was questioned upon several grounds, and we there held that the act was not unconstitutional upon any of the grounds claimed. Respondent now seeks to justify the ruling of the lower court upon the ground that the act is an abridgment of the liberty and natural rights of the citizen, which point was not passed upon in the Sharp-less case. The case of State ex rel. Richey v. Smith, 42 Wash. 237, 84 Pac. 851, with the authorities therein cited, is relied upon as supporting the ruling of the lower court. That was a case where we were considering an act to regulate plumbing in certain cities of the state. We there said:

“The power of the legislature to make all needful rules and regulations for the health, comfort, and well-being of society cannot be questioned, but there are certain limits beyond which the legislature cannot go without trenching upon liberty and property rights which are safeguarded by the state and Federal constitutions.”

We also said:

“Acts of similar import but relating to different professions, trades, and occupations have often been before this court. Thus, in State v. Carey, 4 Wash. 424, 30 Pac. 729, an act regulating the practice of medicine and surgery, was sustained. In State ex rel. Smith v. Board of Dental Examiners, 31 Wash. 492, 72 Pac. 110, and in In re Thompson, 36 Wash. 377, 78 Pac. 899, a similar act regulating the practice of dentistry was upheld. In State v. Sharpless, 31 Wash. 191, 71 Pac. 737, involving the validity of the act regulating the business of barbering, a similar ruling was made. But in In re Aubrey, supra, an act regulating the business of horseshoeing, was declared unconstitutional, and without the police power of the state. Some of the acts considered in the above cases were manifestly needful and proper for the protection of the public health, others were on the border line.”

By these last words the writer of that opinion evidently referred to the act relating to barbering. After further discussing the authorities and particulai’ly considering the case before us, we concluded as follows:

‘We are satisfied that the act. has no such relation to the public health as will sustain it as a police or sanitary measure, and that its interference with the liberty of the citizen brings it in direct conflict with the constitution of the United States.”

We adhere to the rule and reasoning of that case. But there is a clear distinction between that case and this. The business of plumbing only remotely affects the public health. The skill or cleanliness of the plumber himself does not immediately affect the public any more than the skill or cleanliness of the ordinary scavenger affects it, because the business of plumbing does not bring the plumber in personal contact with the public. But the physician, the surgeon, the dentist, and the barber operate directly upon the person, and therefore affect directly the health, comfort, and safety of the public. We .think this marks the principal distinction between that class of trades, professions, or callings which may be regulated by law for public health, comfort, and safety, and that class which cannot be so regulated without depriving a citizen of his natural rights and privileges guaranteed him by fundamental law.

Respondent further takes the position that the act is void because it is manifest therefrom that the same was not passed as a measure to insure the public health, but solely to create a monopoly of barbers in this state, and as supporting that position our attention is called to that part of §' 10 which provides, as a prerequisite to obtaining a certificate of registration, that the applicant “has studied the trade for two years as an apprentice under or as a qualified and practicing barber in this state.or other states.” It is claimed that this provision was made to destroy schools where barbering was taught in this and other states, and permitted practicing barbers to limit the number of applicants by refusing to receive apprentices. This provision, no doubt, gives strong color to the charge made; but we think it is not of itself enough to avoid the whole act. The legislature or the hoard of examiners, when authorized so to do, may make and enforce reasonable rules and regulations in. order to determine the qualification of applicants to practice that occupation. Unreasonable, arbitrary provisions cannot be enforced. We think the provision quoted is both unreasonable and arbitrary. What the public is interested to know is that the barber is competent. How he has acquired his skill or knowledge is of minor importance. If he has qualified himself by attendance upon some school for that purpose, or by his own efforts, unassisted, or by having served an apprenticeship under some qualified barber, or in some other equally efficacious way, that is all that can reasonably be required of him. To limit the qualification to one particular way or to one particular place, where there are many universally recognized as equally good, and provide that none others need apply is no doubt unreasonable. The result is that this requirement of the act is void. But that does not render the whole act void. In order to sustain the judgment in this case, it is necessary to avoid the whole act, which we cannot do.

The judgment must therefore be reversed, and the cause remanded for further proceedings.

Root and Dunbar, JJ., concur.

Fullerton, J., concurs in the result.

Hadley, C. J. and Crow, J., took no part.