On Rehearing. These two cases presenting a single question of law i.e., whether or not Section 12 of Act No. 48 of 1936, generally known as the Barber Act is constitutional, were consolidated in this Court.
August Guchereau, who resides in the City of New Orleans and operated a barber shop there, was charged with violating Section 12 of Act No. 48 of 1936 for performing barber services at prices less *Page 267 than the minimum prices fixed by the Board of Barber Examiners, in accordance with the provisions of the above statute. He filed a demurrer to the information on the ground that Section 12 of the Act and the regulations of the Board adopted thereunder were unconstitutional for the following reasons:
(1) That it attempts to fix the price of manual labor contrary to Section 7 of Article 4 of the Constitution of the State of Louisiana of 1921, which provides that "no law shall be passed fixing the price of manual labor."
(2) That it contravenes the provisions of Section 2 of Article 1 of the Constitution of 1921 of the State of Louisiana, which states that "no person shall be deprived of life, liberty or property, except by due process of law"; and the Fourteenth Amendment to the Constitution of the United States, U.S.C.A.Const. Amend. 14, which provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The trial judge overruled the demurrer holding that Section 12 of the statute and the regulations of the Board based thereon were constitutional. The accused reserved a bill of exception.
On the trial of the case on the merits, it was shown that the Board of Barber Examiners, in accordance with the provisions of Section 12 of Act No. 48 of 1936, *Page 268 upon the application of more than 75% of the barbers in the Orleans judicial district, fixed the minimum prices of 15¢ for a shave and 35¢ for a hair cut, and that the defendant, although apprised of the Board's regulations charged less than these minimum prices for that type of barber work. It was admitted that he was a duly licensed and qualified barber, in accordance with the laws of this State and the rules and regulations of the Board of Barber Examiners. It was not charged or proved that his shop was in an unsanitary condition.
The defendant was convicted and sentenced. He appealed.
In the other case, Noah E. Parker, a resident of Bernice, Union Parish, Louisiana, operated a barber shop there. It was shown that he was duly licensed and qualified under the laws of the State and the rules and regulations of the Board of Barber Examiners, and that he complied with the sanitary regulations. It also appears that the Board, upon the application of more than 75% of the barbers in the Third Judicial District, which included Union Parish, adopted minimum prices of 40¢ for a hair cut and 25¢ for a shave, and although Parker was notified by the Board of this regulation and complied with it for a short while he, subsequently, deliberately and intentionally violated its rule by charging 25¢ for a hair cut and 15¢ for a shave. He was notified by the board to desist from this practice but disregarded its admonitions. He was then called before the Board for practicing the barber trade in violation of the Board's rules and regulations, but, *Page 269 upon the trial failed to appear. The Board then suspended his license for six months and ordered him to discontinue his business. He again disregarded its instructions and the Board, under Section 8 of Act No. 48 of 1936 petitioned the district court for an injunction to restrain the defendant from practicing the barber trade or business. He was also charged in an information with having violated Section 12 of Act No. 48 of 1936 in performing barber services for less than the minimum prices adopted by the Board. In both the injunction or civil suit and the criminal proceeding he pleaded the unconstitutionality of Section 12 of the statute and the regulations adopted thereunder by the Board fixing minimum prices on the same grounds urged by August Guchereau, defendant in the other case.
The injunction matter was tried and the trial judge, holding that Section 12 of the statute was unconstitutional, refused to grant the injunction. The Board appealed.
The criminal prosecution against Parker is still pending in the district court awaiting the final decision of this case.
We held originally that Section 12 of Act No. 48 of 1936 and the regulations of the Board adopted thereunder were unconstitutional, being in violation of the due process clauses of the Federal and State Constitutions. We granted the applications for rehearings and the cases are before us for further consideration.
The title of the statute reads:
"To regulate and control the Barber Industry, and for that purpose to further enlarge *Page 270 the present powers of the Board of Barber Examiners; defining its additional jurisdiction, powers, and duties; to approve agreements from each Judicial District; and providing penalties for violation of this Act."
In Section 1, the Legislators declared:
"Be it enacted by the Legislature of Louisiana, That this Act is enacted in the exercise of the police power of this State and its purposes generally are to protect the public welfare, public health and public safety.
"It is hereby declared that unfair, unjust, destructive, demoralizing and uneconomic trading practices have been and are now being carried on in the operation of barber shops in the State of Louisiana, and that unfair competition exists between the individual barbers of this State to the extent that prices have been reduced by such unfair competition to the point where it is impossible for an average barber, although working regularly, to support and maintain reasonably safe and healthful barbering services to the public.
"That such conditions constitute a menace to the health, welfare and reasonable comfort of the inhabitants of this State, and tend to the transmission of disease.
"That as the barber business affects the health, comfort and well-being of our citizens, and of the public which patronizes the barbers of the State of Louisiana, in order to promote the public welfare, health and safety, and to prevent the transmission of disease, in view of the personal touch and contacts manifested and exercised in *Page 271 the barber business, and the need for well-nourished, strong and healthy persons to engage in the barber business, the barber profession is hereby declared to be a business affecting the public health, public interest and public safety.
"That the present acute economic condition, being in part the consequence of a severe and increasing disparity between the prices of barber work and other commodities, which disparity has largely destroyed the purchasing power of barbers for industrial and sanitary products so necessary in the operation of their business, has broken down the orderly performing of the duties of the barbering profession and has seriously impaired and injured the public health and safety.
"That the danger to the public health, safety welfare is immediate and impending, the necessity urgent, and such as will not admit of delay in public supervision and control in accord with the proper standards of the barber profession. The foregoing statement of fact, policy and application of this Act are hereby declared as a matter of legislative determination."
Section 4 of the Act expressly declares that the Board of Barber Examiners is the instrumentality of the State to carry out the purposes of the Act.
Section 8 of the statute, in addition to any other remedy, gives the Board authority to apply to a court of competent jurisdiction for relief by injunction. This same section also makes the violation of the provisions of the Act or any rule of the *Page 272 Board a misdemeanor punishable by fine or imprisonment.
Section 12 provides:
"Order Fixing Prices of Barber Work:
"(a) That the Board shall have the power to approve price agreements establishing minimum prices for barber work, signed, and submitted by any organized groups of at least 75% of the barbers of each Judicial District, after ascertaining by such investigations, and proofs as the condition permits and requires, that such price agreement is 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 incident to such work.
"The Board shall take into consideration all conditions affecting the barber profession in its relation to the public health and safety.
"In determining reasonable minimum prices, the Board shall take into consideration the necessary costs incurred in the particular Judicial District in maintaining a barber shop in a clean, healthful and sanitary condition.
"(b) The Board, after making such investigation, shall fix by official order, the minimum price for all work usually performed in a barber shop.
"(c) That if the Board after investigation, made either upon its own initiative, *Page 273 or upon the complaint of a representative group of barbers, determines that the minimum prices so fixed are insufficient to properly provide healthful services to the public and keep the shops sanitary, then the Board from time to time shall have authority to vary or re-fix the minimum prices for a barber's work in each Judicial District."
It is not seriously insisted that this is an attempt to fix the price of manual labor for it is well settled by the jurisprudence of this State that the occupation of a barber is classified as a mechanical pursuit and not as manual labor. State ex rel. Grocery Co. v. Land, 108 La. 512, 32 So. 433, 58 L.R.A. 407, 92 Am.St.Rep. 392; Cole v. Grant, 144 La. 916, 81 So. 398; Groves Rosenblath v. Atkins, 160 La. 489, 490, 107 So. 316; State v. Hirn, 46 La.Ann. 1443, 16 So. 403; State v. Dielenschneider, 44 La.Ann. 1116, 11 So. 823; State v. Cohn, 184 La. 53, 165 So. 449; see also Devney's Case, 223 Mass. 270, 111 N.E. 788.
The second contention is that the provisions of Section 12 of the statute deprive the defendants of their liberty and property, without due process of law, in violation of the above quoted provisions of the State and Federal Constitutions.
An Act of the Legislature is presumed to be legal until it is shown that it is manifestly unconstitutional and all doubts as to its validity are resolved in favor of its constitutionality. Becker Steel Co. v. Cummings, 1935, 296 U.S. 74, 56 S.Ct. 15, 80 L.Ed. 54; Alaska Packer's Ass'n v. Industrial Acc. Commission, 1935, *Page 274 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Borden's Farm Products Co. v. Baldwin, 1934, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281; Life Cas. Ins. Co. v. McCray, 1934, 291 U.S. 566, 54 S.Ct. 482, 78 L.Ed. 987; New Orleans v. Louis Robira, 1890, 42 La.Ann. 1098, 8 So. 402, 11 L.R.A. 141.
The above rule is strictly observed in cases where the Legislature enacted a law in the exercise of its police power. Slaughter House Cases, 1873, 16 Wall. 36, 21 L.Ed. 394; Euclid v. Ambler Realty Co., 1926, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Thomas Cusack Co. v. Chicago, 1917,242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472, L.R.A. 1918A, 136, Ann.Cas. 1917C, 594; Hadacheck v. Sebastian, 1915, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann.Cas. 1917B, 927; Erie R. Co. v. Williams, 1914,233 U.S. 685, 34 S.Ct. 761, 58 L.Ed. 1155, 51 L.R.A., N.S., 1097.
The Legislature is presumed to have acted only after a thorough investigation and upon finding that the interest of the public required the legislation in question. Durand v. Dyson, 1916,271 Ill. 382, 111 N.E. 143, Ann.Cas. 1917D, 84; Townsend v. Yeomans,301 U.S. 441, 57 S.Ct. 842, 81 L.Ed. 1210; Max Factor Co. v. Kunsman, 5 Cal.2d 446, 55 P.2d 177, 178; Borden's Farm Products Co. v. Baldwin, supra.
It has been held many times that the Fourteenth Amendment of the Constitution of the United States, U.S.C.A.Const. Amend. 14, and Article 1, Section 2 of the Constitution of Louisiana, prohibiting the deprivation of life, liberty or property without due process of law do not operate *Page 275 as limitations upon the police power of the State to enact and enforce laws and regulations to protect the public health and safety and promote the general welfare of the people. These constitutional protective inhibitions must of necessity yield to the valid exercise of the police power by the State. Nebbia v. People of New York, 1934, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; Pacific Gas E. Co. v. Police Court, 1919,251 U.S. 22, 40 S.Ct. 79, 64 L.Ed. 112; Mountain Timber Co. v. Washington, 1917, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann.Cas. 1917D, 642; Giozza v. Tiernan, 1893, 148 U.S. 657, 13 S.Ct. 721, 37 L.Ed. 599; Mugler v. Kansas, 1887, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; New Orleans v. Postek, 1935,180 La. 1048, 158 So. 553; Lacoste v. Department of Conservation, 1922,151 La. 909, 92 So. 381, affirmed in 1924, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437; State v. McCormick, 1918, 142 La. 580, 77 So. 288, L.R.A. 1918C, 262; State v. Schlemmer, 1890, 42 La.Ann. 1166, 8 So. 307, 10 L.R.A. 135; Garrett, Blanks, et al. v. Aby, 47 La.Ann. 618, at page 630, 17 So. 238 (Citing Stone v. Mississippi, 101 U.S. 814, 25 L.Ed. 1079 * * * Slaughter House Cases, 16 Wall. 36, 21 L.Ed. 394; Pickles v. Dry Dock Co., 38 La.Ann. 412; Kidd v. Pearson, 128 U.S. 1, 9 S.Ct. 6, 32 L.Ed. 346; Metropolitan Board v. Barrie, 34 N.Y. 657, 662); Allopathic State Board of Medical Examiners v. Fowler, 50 La.Ann. 1358, 24 So. 809; Chicago B. Q.R. Co. v. McGuire, 219 U.S. 549, 31 S.Ct. 259, 55 L.Ed. 328; State v. Payssan, 47 La.Ann. 1029, 17 So. 481, 49 Am.St.Rep. 390; State v. Morris, 47 La.Ann. 1660, 18 So. 710; *Page 276 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; New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747; Lake Shore M.S.R. Co. v. Ohio, 173 U.S. 285, 292, 19 S.Ct. 465, 43 L.Ed. 702, 704; Chicago A.R. Co. v. Tranbarger, 238 U.S. 67, 77, 35 S.Ct. 678, 59 L.Ed. 1204, 1211; Chicago B. Q.R. Co. v. Illinois, 200 U.S. 561, 592, 26 S.Ct. 341, 50 L.Ed. 596, 609, 4 Ann.Cas. 1175; State v. De Verges, 153 La. 349, 95 So. 805, 27 A.L.R. 1526; Bacon v. Walker, 204 U.S. 311, 317, 27 S.Ct. 289, 51 L.Ed. 499.
Mr. Chief Justice Waite, in the case of Munn v. Illinois, 1876,94 U.S. 113, 124, 24 L.Ed. 77, 83, put the foregoing fundamental principle of democratic government in the following words:
"When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. `A body politic,' as aptly defined in the preamble of the Constitution of Massachusetts, `is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.' This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R.R. Co., 27 Vt. [140] 143 [62 Am.Dec. 625], but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property as not necessarily to injure *Page 277 another. This is the very essence of government, and has found expression in the maxim, sic utere tuo ut alienum non laedas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in the License Case, 5 How. [504] 583 [12 L.Ed. 256], `are nothing more or less than the powers of government inherent in every sovereignty, * * * that is to say, * * * the power to govern men and things.' Under these powers the government regulates the conduct of its citizens one toward another and the manner in which each shall use his own property, when such regulation becomes necessary for the public good."
The operation of a barber shop is a business affecting the public health, safety and welfare and laws and regulations enacted for the purpose of preserving them constitute a valid exercise of the police power of the State, provided such laws and regulations are not arbitrary, capricious and oppressive and that the means selected by the legislative body to carry them out shall have a real and substantial relation to the purpose sought to be obtained. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 43 S.Ct. 630, 67 L.Ed. 1103, 27 A.L.R. 1280; New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747; Bacon v. Walker, 204 U.S. 311, 27 S.Ct. 289, 51 L.Ed. 499; Slaughter House Cases, 16 Wall. 36, 21 L.Ed. 394; and State v. De Verges, 153 La. 349, 95 So. 805, 27 A.L.R. 1526. *Page 278
It is clear that, as the services of a barber directly affect the human anatomy and, therefore, involve the public health and safety, it is a business affected with the public interest and subject to regulation under the police power of the State. 7 Am. Jurisprudence, 613-615 (1937); Nation v. Chism, 154 Okla. 50,6 P.2d 766; Peters v. State, 56 Okla. Cr. 95, 34 P.2d 286; Grable v. Childers, 176 Okla. 360, 56 P.2d 357.
The Legislature of the State of Louisiana has passed regulatory statutes, Act No. 247 of 1928, which creates the Board of Barber Examiners, and Act No. 128 of 1932.
However, it is argued that Section 12 of Act No. 48 of 1936 is not a regulatory measure but a price-fixing statute which has no real or substantial relation to the public health, safety and welfare, and is arbitrary, capricious and oppressive.
In the case of Nebbia v. People of State of New York,291 U.S. 502-559, 54 S.Ct. 505, 506, 78 L.Ed. 940, 89 A.L.R. 1469, we find the following:
"The Legislature of New York established by chapter 158 of the Laws of 1933, a Milk Control Board with power, among other things to `fix minimum and maximum * * * retail prices to be charged by * * * stores to consumers for consumption off the premises where sold.' * * * The board fixed nine cents as the price to be charged by a store for a quart of milk. Nebbia, the proprietor of a grocery store in Rochester, sold two quarts and a 5 cent loaf of bread for eighteen cents; and was convicted for violating the *Page 279 board's order. At his trial he asserted the statute and order contravene the equal protection clause and the due process clause of the Fourteenth Amendment, and renewed the contention in successive appeals to the county court and the Court of Appeals. Both overruled his claim and affirmed the conviction.
"The question for decision is whether the Federal Constitution prohibits a state from so fixing the selling price of milk. * * *
"Section 312 (e) on which the prosecution in the present case is founded, provides: `After the board shall have fixed prices to be charged or paid for milk in any form * * * it shall be unlawful for a milk dealer to sell or buy or offer to sell or buy milk at any price less or more than such price, * * * and no method or device shall be lawful whereby milk is bought or sold * * * at a price less or more than such price * * * whether by any discount, or rebate, or free service, or advertising allowance, or a combined price for such milk together with another commodity or commodities, or service or services, which is less or more than the aggregate of the prices for the milk and the price or prices for such other commodity or commodities, or service or services, when sold or offered for sale separately or otherwise. * * *'
"First. The appellant urges that the order of the Milk Control Board denies him the equal protection of the laws. It is shown that the order requires him, if he purchases his supply from a dealer, to pay 8 cents per quart and 5 cents per pint, *Page 280 and to resell at not less than nine and six, whereas the same dealer may buy his supply from a farmer at lower prices and deliver milk to consumers at 10 cents the quart and 6 cents the pint. We think the contention that the discrimination deprives the appellant of equal protection is not well founded. For aught that appears, the appellant purchased his supply of milk from a farmer as do distributors, or could have procured it from a farmer if he so desired. There is therefore no showing that the order placed him at a disadvantage, or in fact affected him adversely and this alone is fatal to the claim of denial of equal protection. But if it were shown that the appellant is compelled to buy from a distributor, the difference in the retail price he is required to charge his customers, from that prescribed for sales by distributors is not on its face arbitrary or unreasonable, for there are obvious distinctions between the two sorts of merchants which may well justify a difference of treatment, if the Legislature possesses the power to control the prices to be charged for fluid milk. Compare American Sugar Ref. Co. v. Louisiana, 179 U.S. 89, 21 S.Ct. 43, 45 L.Ed. 102; Brown-Forman Co. v. Kentucky, 217 U.S. 563, 30 S.Ct. 578, 54 L.Ed. 883; State [Board of] Tax Com'rs v. Jackson, 283 U.S. 527, 51 S.Ct. 540, 75 L.Ed. 1248, 73 A.L.R. 1464 [75 A.L.R. 1536].
"Second. The more serious question is whether, in the light of the conditions disclosed, the enforcement of section 312 (e) denied the appellant the due process secured to him by the Fourteenth Amendment. *Page 281
"Save the conduct of railroads, no business has been so thoroughly regimented and regulated by the State of New York as the milk industry. Legislation controlling it in the interest of the public health was adopted in 1862 and subsequent statutes, have been carried into the general codification known as the Agriculture and Markets Law. A perusal of these statutes discloses that the milk industry has been progressively subjected to a larger measure of control. * * * Proprietors of milk gathering stations or processing plants are subject to regulation (section 54), and persons in charge must operate under license and give bond to comply with the law and regulations; must keep records, pay promptly for milk purchased, abstain from false or misleading statements and from combinations to fix prices (sections 57, 57-a, 252). In addition there is a large volume of legislation intended to promote cleanliness and fair trade practices, affecting all who are engaged in the industry. The challenged amendment of 1933 carried regulation much farther than the prior enactments. Appellant insists that it went beyond the limits fixed by the Constitution. 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 *Page 282 of the public to regulate it in the common interest. * * *
"Thus has this court from the early days affirmed that the power to promote the general welfare is inherent in government.
"* * * And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. * * *
"The court has repeatedly sustained curtailment of enjoyment of private property, in the public interest. The owner's rights may be subordinated to the needs of other private owners whose pursuits are vital to the paramount interests of the community. * * *
"The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. * * *
"Legislation concerning sales of goods, and incidentally affecting prices, has repeatedly been held valid. In this class fall laws forbidding unfair competition by the charging of lower prices in one locality than those exacted in another, by giving trade inducements to purchasers, and by other forms of price discrimination. The public policy with respect to free competition has engendered state and federal statutes prohibiting monopolies, which have been upheld. On the other hand, where the policy of the state dictated that a monopoly should be granted, statutes *Page 283 having that effect have been held inoffensive to the constitutional guarantees. Moreover, the state or a municipality may itself enter into business in competition with private proprietors, and thus effectively although indirectly control the prices charged by them.
"The milk industry in New York has been the subject of long-standing and drastic regulation in the public interest. The legislative investigation of 1932 was persuasive of the fact that for this and other reasons unrestricted competition aggravated existing evils and the normal law of supply and demand was insufficient to correct maladjustments detrimental to the community. The inquiry disclosed destructive and demoralizing competitive conditions and unfair trade practices which resulted in retail price cutting and reduced the income of the farmer below the cost of production. We do not understand the appellant to deny that in these circumstances the Legislature might reasonably consider further regulation and control desirable for protection of the industry and the consuming public. That body believed conditions could be improved by preventing destructive price-cutting by stores which, due to the flood of surplus milk, were able to buy at much lower prices than the larger distributors and to sell without incurring the delivery costs of the latter. In the order of which complaint is made the Milk Control Board fixed a price of 10 cents per quart for sales by a distributor to a consumer, and 9 cents by a store to a consumer, thus recognizing the lower costs of the store, and endeavoring to establish a differential which would *Page 284 be just to both. In the light of the facts the order appears not to be unreasonable or arbitrary, or without relation to the purpose to prevent ruthless competition from destroying the wholesale price structure on which the farmer depends for his livelihood, and the community for an assured supply of milk.
"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 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 *Page 285 of this contention the appellant's case against the statute depends.
"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 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.
* * * * * * * * *
"In German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 34 S.Ct. 612, 58 L.Ed. 1011, L.R.A. 1915C, 1189, a statute fixing the amount of premiums for fire insurance was held not to deny due process. Though the business of the insurers depended on no *Page 286 franchise or grant from the state, and there was no threat of monopoly, two factors rendered the regulation reasonable. These were the almost universal need of insurance protection and the fact that while the insurers competed for the business, they all fixed their premiums for similar risks according to an agreed schedule of rates. The court was at pains to point out that it was impossible to lay down any sweeping and general classification of businesses as to which price-regulation could be adjudged arbitrary or the reverse.
"Many other decisions show that the private character of a business does not necessarily remove it from the realm of regulation of charges or prices. The usury laws fix the price which may be exacted for the use of money, although no business more essentially private in character can be imagined than that of loaning one's personal funds. Griffith v. Connecticut,218 U.S. 563, 31 S.Ct. 132, 54 L.Ed. 1151. Insurance agents' compensation may be regulated, though their contracts are private, because the business of insurance is considered one properly subject to public control. O'Gorman Young v. Hartford F. Ins. Co., 282 U.S. 251, 51 S.Ct. 130, 75 L.Ed. 324, 72 A.L.R. 1163.
* * * * * * * * *
"It is clear that there is no closed class or category of businesses affected with a public interest, and the function of courts in the application of the Fifth and Fourteenth Amendments is to determine in each case whether circumstances vindicate the challenged regulation as a reasonable exertion of governmental authority or condemn *Page 287 it as arbitrary or discriminatory. Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 535, 43 S.Ct. 630, 67 L.Ed. 1103, 1108, 27 A.L.R. 1280. The phrase `affected with a public interest' can, in the nature of things, mean no more than that an industry for adequate reason, is subject to control for the public good. In several of the decisions of this court wherein the expressions `affected with a public interest,' and `clothed with a public use,' have been, brought forward as the criteria of the validity of price control, it has been admitted that they are not susceptible of definition and form an unsatisfactory test of the constitutionality of legislation directed at business practices or prices. These decisions must rest, finally, upon the basis that the requirements of due process were not met because the laws were found arbitrary in their operation and effect. But there can be no doubt that upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects, including the prices to be charged for the products or commodities it sells.
"So far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements *Page 288 of due process are satisfied, and judicial determination to that effect renders a court functus officio. `Whether the free operation of the normal laws of competition is a wise and wholesome rule for trade and commerce is an economic question which this court need not consider or determine.' Northern Securities Co. v. United States, 193 U.S. 197, 337, 338, 24 S.Ct. 436, 48 L.Ed. 679, 700, 701. And it is equally clear that if the legislative policy be to curb unrestrained and harmful competition by measures which are not arbitrary or discriminatory it does not lie with the courts to determine that the rule is unwise. * * * Times without number we have said that the Legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power. * * *
"* * * Where the public interest was deemed to require the fixing of minimum prices, that expedient has been sustained. If the lawmaking body within its sphere of government concludes that the conditions or practices in an industry make unrestricted competition an inadequate safeguard of the consumer's interests, produce waste harmful to the public, threaten ultimately to cut off the supply of a commodity needed by the public, or portend the destruction of the industry itself, appropriate statutes passed in an honest effort to correct the threatened consequences may not be set aside because the regulation adopted *Page 289 fixes prices reasonably deemed by the Legislature to be fair to those engaged in the industry and to the consuming public. And this is especially so where, as here, the economic maladjustment is one of price, which threatens harm to the producer at one end of the series and the consumer at the other. The Constitution does not secure to any one liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people. Price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the Legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty.
"`* * * The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect.'"
* * * * * * * * *
"But plainly, I think, this Court must have regard to the wisdom of the enactment. At least, we must inquire concerning its purpose and decide whether the means proposed have reasonable relation to something within legislative power — whether the end is legitimate, and the means appropriate."
The Court concluded that the statute and regulations were constitutional and affirmed the judgment. *Page 290
In Highland Farms Dairy v. Agnew, 300 U.S. 608, 57 S.Ct. 549, 551, 81 L.Ed. 835, the Court said: —
"The power of a state to fix a minimum price for milk in order to save producers, and with them the consuming public, from price cutting so destructive as to endanger the supply, was affirmed by this Court in Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469, and in other cases afterwards. Hegeman Farms Corp. v. Baldwin, 293 U.S. 163, 55 S.Ct. 7, 79 L.Ed. 259; Borden's Farm Products Co. v. Ten Eyck, 297 U.S. 251, 56 S.Ct. 453, 80 L.Ed. 669. Appellants are not asking us to undo what was there done. They take the ground, however, that the statute of Virginia is open to objections that were inapplicable to the statute of New York. The present grounds of criticism will be considered one by one.
"1. The statute is not invalid as an unlawful delegation of legislative power.
"The General Assembly of the Commonwealth in setting up the Milk Commission did not charge it with a duty to prescribe a scale of prices in every portion of the state.
"The commission was to establish market areas, and with reference to each area was to determine, after a public hearing, whether there was need within such area that prices should be regulated. If it was satisfied of the need, it was to fix a scale accordingly. The argument for the appellants is that in this there was a grant *Page 291 of discretionary power overpassing the limits of lawful delegation.
"The Constitution of the United States in the circumstances here exhibited has no voice upon the subject. The statute challenged as invalid is one adopted by a state. This removes objections that might be worthy of consideration if we were dealing with an act of Congress. How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself. Nothing in the distribution here attempted supplies the basis for an exception. The statute is not a denial of a republican form of government. Constitution, art. 4, § 4. * * *"
In the case of Townsend v. Yeomans, 1937, 301 U.S. 441, 57 S.Ct. 842, 81 L.Ed. 1353, the Court held that a Georgia statute fixing minimum charges to be made by tobacco warehouses was a valid exercise of the police power of the State, because the tobacco business was affected with a public interest and, therefore, subject to reasonable regulations.
Is the statute and regulations in question an arbitrary exercise of the police power by the Legislature and the Board of Barber Examiners?
Section 1 of the Act clearly states the necessity for further regulation of the barber business. Apparently, the members of the Legislature gained their information from the barber organizations and the State Board of Health and such other sources as they considered reliable, before passing the statute. No attempt was made *Page 292 to contradict or disapprove the facts given by the Legislature as the reason for its action. In the absence of any evidence contradicting the legislative determination, the presumption is that its declarations are correct and accurate. Townsend v. Yeomans, supra.
Can it be said that the method of fixing the minimum prices as provided for in the statute is unreasonable, capricious and arbitrary?
Section 12 of the statute requires a seventy-five per cent. of the barbers of a judicial district to agree on the minimum prices that they propose for the adoption by the Board. The Board of Barber Examiners is not required to accept these suggested prices and may conduct investigations and call for additional information in order to determine to their satisfaction what would be fair and reasonable minimum prices to be charged. The Board thereby protects the minority of the barbers who have not signed the proposed minimum price schedule, as well as the public from any oppressive and arbitrary prices.
Is there a real and substantial relation between the minimum price regulations and the sanitation and hygiene standards required of barbers practicing their calling under the laws and regulations of the Board in the interest of public health and safety?
The barbers and the members of the Board of Barber Examiners are familiar with and know the requirements of the sanitation laws and regulations. They are *Page 293 in a position to fairly, reasonably and accurately determine what should be the minimum prices charged for the respective services rendered by the average barber to members of the public in order to maintain those standards of hygiene and sanitation in the interest of the public health and safety. As we have already seen, the provisions of the statute require 75% of the barbers in a judicial district to agree on the proposed minimum price schedule, which is then subject to revision, rejection or adoption by the members of the Board, who must approve the minimum prices in order to give the regulation legal effect.
In the Orleans Judicial District the price for a shave was fixed at 15¢ and a hair cut at 35¢, and in the Third Judicial District the price was fixed at 25¢ for a shave and 40¢ for a hair cut. These are the only prices in the minimum price schedule involved here. It was the violation of this part of the regulation that precipitated this litigation. There is nothing in the record to show that the minimum prices adopted are arbitrary, unreasonable, capricious or oppressive and that they do not bear substantial and real relation to the standards exacted by the Board's regulations in order to protect the public health and safety.
The statement by the defendant, Noah Parker, that he was unable to make a living when he charged the minimum prices fixed by the Board, but was able to earn between $175.00 and $200.00 per month when he charged prices below those fixed by the Board is not sufficient to overcome *Page 294 the prima facie case established by the State as a result of the actions of the members of the Legislature in enacting the law, 75% of the barbers in the Third Judicial District in proposing the schedule and the Board in establishing the minimum prices after investigations. It may well be that Parker's receipts increased when he cut prices, for, the very purpose of doing that was to gain more patrons. This is particularly true when at least 75% of the other barbers of that district were adhering to the minimum price schedule. In fact, it was not shown that any other barber in that district except the defendant Parker was charging less than the regulation required. So, the single instance wherein one barber was benefitted is insufficient to overcome the experiences of the others in that district to justify the court in concluding that the minimum prices fixed were an arbitrary and unwarranted exercise of the police power of the State.
In Section 1 of the Act, the Legislature expressly declares that unfair price competition exists among the barbers of the State to such a degree in their respective localities that it is impossible for the average barber to comply with reasonable health regulations in rendering their services to the public and earn a living.
In the case of Nebbia v. People of State of New York, supra, the United States Supreme Court held that where minimum price regulations are reasonable and designed for the purpose of protecting the public health against the harmful and dangerous effects of drastic price competition, *Page 295 the regulations were a valid exercise of the police power of the State and not violative of the due process clause of the Constitution.
The contention that the provisions of the statute and regulations deprived the defendants of their constitutional right to earn a living is answered in Allopathic State Board of Medical Examiners v. Fowler, 50 La.Ann. 1358, 24 So. 809, and Hegeman Farms Corpn. v. Baldwin, 293 U.S. 163, 55 S.Ct. 7, 79 L.Ed. 259.
The cases of State ex rel. Fulton v. Ives et al., 1936,123 Fla. 401, 167 So. 394; Duncan v. City of Des Moines, 1936,222 Iowa 218, 268 N.W. 547; and City of Mobile v. Rouse, 1937,27 ALa.App. 344, 173 So. 254, are not controlling because these decisions were rested mainly upon the opinion of the United States Supreme Court in the case of Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238, and that authority was expressly overruled by the U.S. Supreme Court in the recent case of West Coast Hotel Company v. Ernest Parrish et ux., 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 707, 108 A.L.R. 1330, decided March 29, 1937. The Ives Case is distinguishable because the Court found the statute to be arbitrary in applying to the State as a whole when conditions in various localities were different. The City of Mobile Case is not apposite because the provisions of the statute in question confined its operation to the City of Mobile.
The case of the City of Alexandria v. Hall, 171 La. 595,131 So. 722, is not in point, because the Court found from the *Page 296 evidence that the City ordinance was based upon conjecture and had no real or substantial relation to the purpose sought to be accomplished by the ordinance.
In the Adkins Case, supra, the United States Supreme Court held unconstitutional an act of Congress which authorized a designated board in the District of Columbia to fix a minimum wage for women and children to supply the necessary costs of living, etc.
In the case of West Coast Hotel Co. v. Ernest Parrish et ux., supra, the same Court held that the minimum wage law for minors and women of the State of Washington was valid and did not violate the due process clause of the Constitution and expressly overruled the Adkins Case.
The Court of last resort of the Nation having held that a price fixing statute or regulation enacted by the legislative department of a sovereign State under its police power concerning a business or trade affected with a public interest and having real and substantial relation to the public welfare, health and safety does not violate the due process clause of the Federal Constitution, and, the provisions of our own Constitution being identical with those of the Fourteenth Amendment, we consider the question settled, although the opinions of the United States Supreme Court were not unanimous. A reading of the decisions of that august tribunal on this highly controversial subject leads one to conclude that the last view is more liberal in interpreting the due process clause as affecting the authority of the legislative department under its police power. *Page 297
It is obvious that the statute and regulations in question do not deny equal protection of the law to the defendants for it applies alike to all parties similarly situated.
For the reasons assigned our original opinion and decree are set aside and recalled and it is now ordered, adjudged and decreed that the provisions of Section 12 of Act No. 48 of the Legislature of 1936 and the minimum price fixing regulations of the Board of Barber Examiners adopted thereunder are held to be constitutional and not violative of the due process clauses of the Federal and State Constitutions.
It is further ordered, adjudged and decreed that the conviction and sentence of the defendant, August Guchereau, in proceedings No. 34,713, 182 So. 515, are affirmed.
It is further ordered, adjudged and decreed that the judgment of the district court in proceedings No. 34,517, denying the Board of Barber Examiners of Louisiana an injunction against Noah E. Parker is annulled and set aside, and
It is now ordered, adjudged and decreed that an injunction issue restraining, enjoining and prohibiting the defendant, Noah E. Parker, from practicing the trade of a barber or operating a barber shop in the Third Judicial District and performing or rendering barber services or work at prices less than those fixed by the Board of Barber Examiners as authorized by Section 12 of Act No. 48 of 1936; defendant *Page 298 Parker to pay all costs of court in his case.
Defendant's rights to a rehearing reserved.
ODOM, J., dissents and adheres to his original opinion.