Opinion
THRIFT-D-LUX
7-31-1951
STATE BOARD OF DRY CLEANERS v.CLEANERS, Inc., et al. Civ. 18122.
Edmund G. Brown, Atty. Gen., Alberta Gattone, Deputy Atty. Gen., for appellant. Adele I. Springer, Los Angeles, for respondents.
STATE BOARD OF DRY CLEANERS
v.
THRIFT-D-LUX CLEANERS, Inc., et al.
July 31, 1951.
Hearing Granted Sept. 27. 1951. *
Edmund G. Brown, Atty. Gen., Alberta Gattone, Deputy Atty. Gen., for appellant.
Adele I. Springer, Los Angeles, for respondents.
MOORE, Presiding Justice.
In 1945 the Legislature added Chapter 18 to Division 3 of the Business and Professions Code, sections 9500 to 9597. While there was no preamble to the act, no doubt is left that the purpose of such addition was to provide statutory rules for the regulation of cleaners and dyers. It provides for the State Board of Dry Cleaners consisting of seven members: one from the public; two owners of retail plants, two owners of wholesale plants and two owners of shops. After the articles for administration, licensing and registration of those engaged in such business, Article 5 provides for 'minimum price schedules'. Sections 9560 through 9567. Section 9563 authorizes the board to establish 'minimum price schedules for the various items of cleaning, dyeing and pressing services for any city or county or other area as may be determined by the board upon the filing of a petition with it, requesting a minimum price schedule for that * * * area signed by seventy-five per cent (75%) or more of the persons in that * * * area who are licensed under this chapter.' Succeeding sections require the board to conduct in such area a survey to determine the cost of the various items for which minimum price schedules shall be established and 'not [to] fix a price for any service at a sum less than that which is shown to be the cost price of such service.' For violating a minimum price schedule any person may be enjoined. New minimum prices for cleaning, dyeing or pressing service may be fixed by the board for the same area after investigations when it is shown that the minimum prices fixed 'are insufficient * * * to provide healthful and proper services to the public and to maintain a clean, healthful, safe and sanitary cleaning, dyeing or pressing establishment, or that any minimum price set creates an undue hardship on any licensee'. Sec. 9566. Any violation of the rules prescribed by Chapter 18 is a misdemeanor punishable by a fine of not less than $25 and not more than $200.
Pursuant to such act the Dry Cleaners' Board was organized. In July, 1947, seventy five per cent of its licensees in practically all the cities of Los Angeles county petitioned the Board to establish minimum prices in both wholesale and retail fields. Basing its action upon its own cost survey, the Board established and published its minimum price schedules 1 effective July 27, 1947, and prescribed certain minimum standards with respect to the manner, type, character and method to be used in dry cleaning. What occurred immediately after the Board published its schedules is not made clear, but in September, 1949, the Board filed its complaint herein charging respondents with having violated the price schedules fixed by appellant and with having threatened to continue to violate them. They demand that respondents be enjoined from transacting business, from selling or offering for sale its dry-cleaning services at prices less than those established by the Board for the Los Angeles area. The general demurrer to the amended complaint having been sustained without leave to amend, judgment dismissing the action was duly entered. The board now demands that such decree be reversed.
Miscellaneous Vices of the Statute
All grounds urged for a reversal of the judgment stem from appellant's insistence that section 9563 (for fixing prices) is valid, whereas respondents contend that (1) it violates the due process clauses of the Fourteenth Amendment of the federal constitution, and section 13 of Article I of the California constitution; sections 11 and 21 (invalid classification); section 1 of Article IV (delegation of legislative power); also sections 24 (title of act), 25 (local and special laws); subdivisions 2 (crimes and misdemeanors), 19 (special rights, privileges and immunities) and 33 (general law); (2) it is a hindrance to public welfare; not necessary to the public health or safety and is an unlawful delegation of power; (3) it is discriminatory; (4) it is an invalid exercise of the police power; (5) it arbitrarily interferes with private business, etc. In addition, respondents contend that the provisions of the 'Unfair Practices Act' furnish a sufficient deterrent to discourage foul practices among dry cleaners. The penal provisions of the Unfair Trade Laws, B. & P. C., secs. 17100-17101, should be effective if applied to those operators who ignore the rules prescribed for the safe and sanitary operation of the dry cleaning business.
The section, B. & P. C., sec. 9563, authorizing minimum prices discriminates against those who may comprise 25 per cent of all dry cleaners who may not originate or favor the price schedules. Not only are the 25 per cent excluded from participation, but neither the board nor the public may create such a law. Thus 75 per cent of the dry cleaners by their mere petition to the board control prices and by the regulation effected are enabled to deprive all other dry cleaners of large patronage through the latter by having better locations, more experience and superior equipment are in positions to turn out greater volumes of work and thereby effect a saving to the public by charging less for each item of work done. By reason of the fact that the preponderant number of patrons of dry cleaning establishments desire their work done on the most economical basis, it is out of volume that large profits are made. 2 If the minimum schedules which it has promulgated be enforced, the opportunities would be increased for patronage of those cleaners who prefer to give the 'expensive grade' of service and diminish the advantages of those who can at their own gain serve a greater number by furnishing the 'economical grade.'
Not only does section 9563 ignore the two kinds of service but it is fatally weak in its failure to provide guides or standards whereby to regulate the board in the formalizing of the minimum price schedules. It is elemental that any statute enacted for the purpose of enabling an administrative agency to draft its regulatory measures must be supplied with standards or guiding rules. Such agencies may not be invested with an arbitrary power or unlimited discretion. In re McLain, 190 Cal. 376, 381, 212 P. 620; In re Peppers, 189 Cal. 682, 688, 209 P. 896. If standards for the guidance of the administrative agency are not provided by the creative statute, the law becomes a nullity. United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516; See Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620, 91 P.2d 577; Revne v. Trade Commission, Utah, 192 P.2d 563. 3 Moreover, a statute designed to regulate an industry must be for the public good and serve to accomplish a legitimate object. While ostensibly created to serve the general welfare, in fact, it regulates a segment of private industry, raises prices and is therefore detrimental to the public welfare. While the regulatory portions of Chapter 18 appear to be free of vices, it would be contrary to traditional, constitutional inhibitions to approve of the rule fixing the prices to be charged by dry cleaners at the expense of the public and of those dry cleaners who oppose the regulation. By such measure the people residing in the most populous areas of Los Angeles County have no voice in the making of the price law; no member of the legislature was consulted; appellant Board was without power to designate the day of its enactment or the geographical area to be affected.
A fatal defect in the Act is found in the fact that by committing to an administrative agency the authority to make rules establishing minimum prices for work the Legislature delegated its own authority. It is a principle as old as time, but as vigorous as youth that delegated power cannot itself be delegated. To this doctrine conformance has been constant and uniform throughout the years of effort to fix prices by law. 4 Indeed, as many decisions imply, if they do not expressly declare, that in the enactment of such statutes, the legislature abdicate the constitutional obligation to make law, but pass it over to those who are ignorant of the process or to those who are directly and selfishly interested in the operation of the regulatory rule and its penal provisions. The art of legislating requires not only knowledge but it involves the exercise of a discretion as to what the law shall be. This is of especial importance in the matter of delegating legislative power to an administrative board composed of the members of the industry to be regulated. In Carter v. Carter Coal Co., 298 U.S. 238, 311, 56 S.Ct. 855, 873, 80 L.Ed. 1160, the court termed the delegation of such powers by the legislature to interested persons as 'intolerable,' as 'legislative delegation in its most obnoxious form'. In referring to the Delaware Dry Cleaning Law, the Supreme Court of Delaware in Becker v. State, 7 W.W.Harr. 454, 185 A. 92, 100, had occasion to observe its likeness to the ancient guild which operated for the advantage of its members. 5 In Eubank v. City of Richmond, 226 U.S. 137, 33 S.Ct. 76, 77, 57 L.Ed. 156, the court denounced as 'an unreasonable exercise of the police power' a municipal ordinance which required the Committee on Streets to establish a building line at a prescribed location when requested by two thirds of the abutting property owners. 6 In Dupont v. Liquor Control Commission, 136 Conn. 286, 71 A.2d 84, the court held an ordinance violated the constitution in that it required as a condition precedent to the issuance of a permit the consent of 50 per cent of the owners. This was tantamount to no privilege at all since 51 per cent of such owners could defeat the permit. 'In effect, therefore, the consent clause confers upon the 51 per cent the power to determine, in this particular, the use the plaintiffs may make of their property.' 136 Conn. at page 289, 71 A. 2d at page 85.
It follows from the foregoing that an attempt on the part of the legislature to delegate its power to an administrative board comprised of interested persons, members of the industry seeking regulation, to make a regulatory rule or ordinance is an abuse of the police power and therefore void.
Cal.App.lifornia Law
That minimum prices for the dry cleaning industry cannot be fixed by statute is the established law of this state. See In re Herrick, 1938, 25 Cal.App.2d 751, 77 P.2d 262; In re Landowitz, 22 Cal.App.2d 733, 71 P.2d 334; In re Kazas, 1937, 22 Cal.App.2d 161, 70 P.2d 962, 965. The ordinance involved in the Herrick case was expressly enacted for the purpose of increasing employment, reducing hours, increasing wages, eliminating unfair trade practices and ruinous, price-cutting evils. The ordinance fixed minimum prices for various services including the lowest price for cleaning and pressing a man's suit. The declared purpose was for general welfare. Herrick having been arrested for a violation of the ordinance was discharged on a writ of habeas corpus, on the authority of In re Kazas, supra. In the Landowitz case, supra, he was likewise discharged on the strength of the Kazas decision which established a firm foundation for the riddance of all such special, discriminatory legislation. In enacting its ordinance for fixing minimum prices for a hair cut and a shave the city of Bakersfield did attempt to be regular by declaring the existence of an emergency, 'widespread unemployment and disorganization of trade and industry which affects the peace and welfare of all the people,' and made a violator subject to fine and imprisonment. The ordinance was not concerned with health, safety or morals of the people. Its sole object was to attempt to regulate prices to be charged by the tonsorial artists of the town. It took no cognizance of differences in the skill of the several members of the trade, in their shop locations and equipments or in the costs of operating them. As to the declaration of emergency, Mr. Justice Marks quotes the U. S. Supreme Court in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, to the effect that emergency does not remove restrictions upon power reserved; that emergency may not call into life a power which has never existed. However, we are not confronted in the instant action with a declaration of emergency. The issue here presented is whether the price fixing statute can be supported. If so, such support must be found despite the inhibitions of the state's constitution 7 and of Article XIV of the federal constitution. 8 These provisions of the organic law are vital. They protect us in our homes, in our lives and occupations. Unless an act forbidden by them be authorized by the legislature, it is invalid unless it be for the protection of the health, the morals or the general welfare. Thus, if a statute or ordinance be enacted to regulate a trade or industry it must be 'affected with a public interest' and the law attempting to regulate it must aim at the conservation of the public health, public morals or general (public) welfare. If a statute purporting to have been enacted for the protection of the public health, safety, morals or general welfare has no substantial relation to any of those objects, a court cannot do otherwise than declare it void. McKay Jewelers, Inc., v. Bowron, 19 Cal.2d 595, 600, 122 P.2d 543, 139 A.L.R. 1188. The power of the legislature to regulate private business cannot be invoked when the lawmakers are not dealing with a paramount industry. Nebbia v. People of State of N. Y., 201 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940. Where a business is essentially private in its nature, 'as the business of the grocer, the dairyman, the butcher, the baker, the shoemaker, or the tailor,' it cannot be subjected to legislative regulation on the theory that it is public industry. New State Ice Co. v. Liebmann, 285 U.S. 262, 277, 52 S.Ct. 371, 374, 76 L.Ed. 747.
In the case at bar the evident purpose of fixing minimum prices of dry cleaning services was to enhance the economic status of the industry and to enlarge the profits of each operator. There is no necessary relation between the statute and the anticipated improvement of the public weal. That the statute was not enacted for the general good is shown by the paucity of those benefitted and by the many who suffer detriment thereby. While the state has a population of over 10,000,000 souls, and Los Angeles County has a population in excess of 4,000,000, the dry cleaners of the county, including shops and plants, number less than 4,000, and there are less than 8,000 in the state. How could the public morals be affected by the increase of dry cleaners' prices? How could they affect the public health? how improve the public welfare? On the contrary, an advance in prices depreciates the wealth of 1117 people for every single dry cleaner benefitted. The result of the price fixing for the industry is that less than 1% of the people of the county have initiated a penal law for the control of their industry to the financial detriment of the remainder, or practically the entire body politic without the latter's concurrence. Is it conceivable that any statute could be more oppressive with less support from the people who have built their state upon the principles that all men have the inalienable right to acquire, possess and protect property, who shall not be deprived of same without due process of law; who shall never grant special privileges or immunities to a favored class; who have vested all legislative power in a Senate and Assembly which shall not pass local or special laws for the punishment of crime?
The dry cleaners involved in or concerned with this action are in no better position than were the barbers in the Kazas case. The court there emphasized that because the ordinance did not pretend to concern itself with the health, safety or morals of the people, because no emergency existed as a basis for the ordinance, because the general welfare was not to be served by an enforcement of the ordinance, because it was not affected with a public interest, the ordinance was void. The Kazas opinion highlights the progressive attempts at price fixing by statute directly and expresses the law of this state. It is not overruled by Nebbia v. People of State of N. Y., 291 U.S. 502, 54 S.Ct. 505, 511, 78 L.Ed. 940, as contended by appellant. The latter decision involved the sale and distribution of milk, an article indispensable to practically every home in America. The state of New York enacted the statute to meet an emergency when the nation was at the nadir of its greatest depression. It was conceived in the vital relation of milk to the public health. The preservation of such a commodity and its fair and proper distribution are essential to public health and general welfare. The dry cleaning industry, however convenient to a large portion of the public, is not a basic or paramount industry. In fact it bears only a remote relationship to public health. The Supreme Court did not in the Nebbia case hold that any industry is subject to regulation at any time but on the contrary maintained that 'a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances'. The sum and substance of the Nebbia decision is that the exercise of the police power must be for an end which is in fact public and that price fixing may be a valid legislative means in the exercise of that power. See Treigle v. Acme Homestead Association, 297 U.S. 189, 197, 56 S.Ct. 408, 80 L.Ed. 575; Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446. Because the Nebbia decision blazed the way for legislative action in preventing public abuses by depriving the public of a necessity it is not for that reason authority for an administrative agency to expand its activities to such an extent as to operate its power to the economic detriment of one segment of the membership it regulates and to the advantage of another segment. To say that such decision is authority for the legislature to fix prices of any commodity because some persons in the industry desire an advantage over others is not justified by anything there said. Darweger v. States, 267 N.Y. 290, 196 N.E. 61, 67; Doubleday, D. & Co. v. R. H. Macy & Co., 269 N.Y. 272, 199 N.E. 409, 103 A.L.R. 1325. That the Nebbia case is not regarded as authority for fixing prices on all commodities is established by numerous decisions wherein it has been distinguished. See Natural Pipeline Co. v. Federal Power Commission, 7 Cir., 120 F.2d 625, 630; Duff v. Trenton Beverage Co., 4 N.J. 595, 608, 73 A.2d 578; Old Dearborn Distribution Co. v. Seagram-Distillers Corporation, 299 U.S. 183, 57 S.Ct. 139, 81 L.Ed. 109; State Board of Milk Control v. Newark Milk Co., 118 N.J.Eq. 504, 179 A. 116. The exercise of police power to fix prices must be limited by the rule that it 'must be reasonable under the conditions and the legislation must have a substantial relation to its object and must not be arbitrary or discriminatory.' Lakewood Express Service v. Board of Public U. Commissioners, 1 N.J. 45, 50, 61 A.2d 730, 732, 7 A.L.R.2d 1259.
In the Kazas action the court wisely concluded that 'The private advantage of a small group, not a class, composing a small percentage of the population of Bakersfield, does not make a price fixing ordinance for that group alone legislation for the general welfare of the inhabitants of Bakersfield', [22 Cal.App.2d 161, 70 P.2d 970] and held that the trade of barbering is not 'affected with a public interest or clothed with a public use.' No decision of the courts of this state has ruled to the contrary of the Kazas case. Moreover, it has been followed by many courts. In De Haviland v. Warner Brothers Pictures, 67 Cal.App.2d 225, 235, 153 P.2d 983, 988, the court said that 'The validity of legislation infringing upon the right of contract is to be judged from its tendency to promote the welfare of the general public rather than that of a small percentage of citizens.' In re Jentzsch, 112 Cal. 468, 44 P. 803, 804, 32 L.R.A. 664, the court held that constitutional liberty means the 'right freely to labor * * *. How comes it that the legislative eye was so keen to discern the needs of the oppressed barber, and yet was blind to his toiling brethren in other vocations?' Many ordinances regulating barber shops, bakeries, grocery stores, laundries etc. have been nullified. In re Boehme, 12 Cal.App.2d 424, 428, 55 P.2d 559; People v. Osborne, 17 Cal.App.Supp.2d 771, 777, 59 P.2d 1083; In re Scaranio, 7 Cal.2d 309, 311, 60 P.2d 288; Ex parte Westerfield, 55 Cal. 550, 551; regulating hours of bakers; Ganley & Claeys, 2 Cal.2d 266, 267, 40 P.2d 817; In re Mark, 6 Cal.2d 516, 521, 58 P.2d 913, regulating working hours of laundries; Ex parte Quarg, 149 Cal. 79, 84 P. 766, 5 L.R.A.,N.S., 183, statute prohibiting the sale of theater tickets for prices higher than those of the management; Deese v. City of Lodi, 21 Cal.App.2d 631, 69 P.2d 1005, ordinance closing grocery stores; In re Porterfield, 28 Cal.2d 91, 103, 168 P.2d 706, 167 AL.R. 675; Bernstein v. Bush, 29 Cal.2d 773, 777, 177 P.2d 913; Bueneman v. City of Santa Barbara, 8 Cal.2d 405, 415, 65 P.2d 884, 109 A.L.R. 895; Franchise Motor Freight Association v. Seavey, 196 Cal. 77, 81, 235 P. 1000, regulation must be for the benefit not to the detriment of the consuming public; Endicott v. Rosenthal, 216 Cal. 721, 723, 16 P.2d 673; Accounting Corporation v. State Board of Accountancy, 34 Cal.2d 186, 245, 208 P.2d 984.
Kazas Followed in Sister States.
The same doctrine has been announced and the same holding as that of the Kazas case has been followed in other jurisdictions. In Revne v. Trade Commission, 192 P.2d 563, the Supreme Court of Utah annulled a statute fixing minimum prices for barbers. The federal district court in New Jersey held a price-fixing statute violative of the due process clause, and that the cleaning and dyeing industry is not affected with a public interest and therefore void, Kent Stores v. Wilentz, 14 F.Supp. 1. In Becker v. State, 7 W.W.Harr. 454, 185 A. 92, the Supreme Court of Delaware held the object of the act fixing minimum prices for cleaning and pressing to be not for the public welfare but an attempt to regulate and control an ordinary occupation. In New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747, it was held that a similar statute regulating the prices of an industry was beyond the power of a state, an arbitrary interference with private business, not related to public health, morals or welfare and with a tendency to create and foster monopoly and to maintain maximum prices. The Supreme Court of Alabama in reference to the Barber and Dry Cleaning Acts fixing minimum prices held that personal services not done in an industry devoted to public purpose cannot become affected with public interest. City of Mobile v. Rouse, 233 Ala. 622, 173 So. 266, 111 A.L.R. 349; see Hertz Drivurself Stations, Inc., v. Siggins, 359 Pa. 25, 58 A.2d 464, 7 A.L.R.2d 438; Noble v. Davis, 204 Ark. 156, 161 S.W.2d 189; State Board of Barber Examiners v. Cloud, 220 Ind. 552, 44 N.E.2d 972; State v. Greeson, 174 Tenn. 178, 124 S.W.2d 253; LaForge v. Ellis, 175 Or. 545, 154 P.2d 844; Serrer v. Cigarette Service Co., 148 Ohio St. 519, 76 N.E.2d 91; State ex rel. Fulton v. Ives, 123 Fla. 401, 167 So. 394.
From all the decisions it is inescapable that (1) constitutional law does not sanction the granting of sovereign power to one group of citizens to be exercised against another unless the public morals, health or welfare is thereby served; (2) it is basic that for a statute such as that here involved to be upheld there must be some semblance of a public necessity for the law; (3) such a statute must not be arbitrary and unreasonable or violate the right to own and enjoy property; (4) it must relate to the protection of public health, morals or welfare.
Appellant has placed reliance upon the hypothesis that the Legislature has power to regulate prices in the dry cleaning industry and cites in support thereof the following: Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620, 91 P.2d 577; Wholesale Tobacco Dealers v. National Candy & Tobacco Co., 11 Cal.2d 634, 82 P.2d 3, 118 A.L.R. 486; The Fair Trade Act, Statutes of 1931, page 583; Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 55 P.2d 177; In re Lasswell, 1 Cal.App.2d 183, 36 P.2d 678; In re Weisberg, 215 Cal. 624, 12 P.2d 446; Carter v. Stevens, 211 Cal. 281, 295 P. 28; Nebbia v. State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; Olsen v. State of Nebraska, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305; Tyson & Bros. United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718; Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263; Reeves v. Simons, 289 Ky. 793, 160 S.W.2d 149; Townsend v. Yeomans, 301 U.S. 441, 57 S.Ct. 842, 81 L.Ed. 1210; 20th Century Associates v. Waldman, 294 N.Y. 571, 63 N.E.2d 177; Kuperschmid v. Globe Brief Case Corp., 185 Misc. 748, 58 N.Y.S.2d 71; Kelly-Sullivan, Inc., v. Moss, 174 Misc. 1098, 22 N.Y.S.2d 491; Nelsen v. Tilley, 137 Neb. 327, 289 N.W. 388, 126 A.L.R. 729; Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074; U. S. v. Darby Lumber Co., 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703.
Those decisions fall into the following classes: (1) Legislation to meet an emergency; (2) statutes for the regulation of an industry clothed with a public use; (3) statutes for the protection of women and children. The Nebbia decision would never have been written had there been an abundance of milk for the inhabitants of New York. Since milk is necessary for the children and since the supply for New York City was shipped in by interests that could control its distribution to the detriment of the many, the legislature had to adopt a law for the protection of the health of all the people. West Coast Hotel Co. v. Parrish, supra, was a recognition of the truism that the women and children of America constitute the most valuable asset of the nation and therefore the sustenance they draw from industry is a matter of public concern. The statutes that have been approved regulating rent on commercial buildings, employment agencies, resale of motor vehicles, etc., were all for the protection of the public and not for the enrichment of the persons engaged in those lines or merely to interfere with a private industry.
While the Kazas ordinance declared its purpose was for the public welfare, the statute here involved did not do so and if it had, its declaration would not create the need for controlling prices of work for there was no emergency in the industry. The chief concern of the court in the Kazas case was whether a price fixing ordinance promoted the 'general welfare.' While deciding that it did not, the court held that for legislation to be justified by the last quoted phrase it must promote the welfare of the general public and not a small segment thereof. Because the minimum price-fixing section of the Dry Cleaner's Act was not inserted for the general welfare and does not contemplate that the board should consider the quality of service, the location of the shop, the rental it pays, the economic status of its patrons or its overhead expenses, but because it places all potential customers in the same category and makes no provision for the man of meagre income to obtain dry cleaning service for a reasonable charge, it is of no benefit to the public and its enactment was a detriment.
Judgment for defendants affirmed.
McCOMB and WILSON, JJ., concur. --------------- * Subsequent opinion 254 P.2d 29. 1 The Los Angeles board fixed the least price to be paid for cleaning and pressing a man's suit at $1, while respondent Thrift-D-Lux was charging only 69 cents. The Richmond Board fixed it at $1.13 and the San Francisco Board at $1.24. 2 In the dry cleaners' industry there are two grades of work: the economical and the expensive. 3 In the Revne case the court said: 'Where no standards have been set other than that a board fix just and reasonable minimum wholesale and retail prices for milk, the act has been held to be insufficient in setting out standards.' 192 P.2d at page 573. 4 See Revne v. Trade Commission, Utah, 192 P.2d 563; Wilson v. New, 243 U.S. 332, 37 S.Ct. 298, 61 L.Ed. 755; Levine v. O'Connell, 275 App.Div. 217, 88 N.Y.S.2d 672, 673; Dean Milk Co. v. City of Aurora, 404 Ill. 331, 88 N.E.2d 827, 14 A.L.R.2d 98; LaForge v. Ellis, 175 Or. 545, 154 P.2d 844; Van Winkle v. Fred Meyer, Inc., 151 Or. 455, 49 P.2d 1140; Gibson Auto Co. v. Finnegan, 217 Wis. 401, 259 N.W. 420; Maryland Coop. Milk Producers v. Miller, 170 Md. 81, 182 A. 432; Chester C. Fosgate Co. v. Kirkland, D.C.Fla., 19 F.Supp. 152, 153; Hollingsworth v. State Board of Barker Examiners, 217 Ind. 373, 375, 28 N.E.2d 64; Union Trust Co. v. Simmons, Utah, 211 P.2d 190 and many others. 5 'Vast authority is centered in a governing board, a majority of which are directly interested in the industry, but who, nevertheless, are empowered to act in a judicial capacity, and to sit in judgment over fellow members of the trade. Too great a strain is imposed upon human frailty. The practical tendency of the legislation is to create and foster monoply, to prevent, not to encourage competition, to maintain maximum, not minimum prices, all of which is against, not in aid of, the interests of a consuming public. The act savors of an attempt to establish the ancient guild which, operating not so much for the public benefits as for the advantage of its members, had come 200 years ago to be regarded as an unmitigated evil.' 6 226 U.S. at page 145, 33 S.Ct. at page 77, 57 L.Ed. 156, the court says: 'It leaves no discretion in the committee on streets as to whether the street line shall or shall not be established in a given case. The action of the committee is determined by two thirds of the property owners. In other words, part of the property owners fronting on the block determine the extent of use that other owners shall make of their lots, and against the restriction they are impotent. This we emphasize. One set of owners determines not only the extent of use, but the kind of use which another set of owners may make of their property. In what way is the public safety, convenience, or welfare served by conferring such power? The statute and ordinance, while conferring the power of some property holders to virtually control and dispose of the property rights of others, creates no standard by which the power thus given is to be exercised; in other words, the property holders who desire and have the authority to establish the line may do so solely for their own interest, or even capriciously. * * * 'We are testing the ordinance by its extreme possibilities to show how in its tendency and instances it enables the convenience or purpose of one set of property owners to control the property right of others * * *. One person having a two-thirds ownership of a block may have that power against a number having a less collective ownership. * * * This, as we have said, is the vice of the ordinance, and makes it, we think, an unreasonable exercise of the police power. 'The case requires no further comment.' 7 Article I, section 1: 'All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.' Article I, section 11: 'All laws of a general nature shall have a uniform operation.' Article I, section 13: 'No person shall * * * be deprived of life, liberty, or property without due process of law'. Article I, section 21: 'No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.' Article IV, section 1: 'The legislative power of this State shall be vested in a Senate and Assembly which shall be designated 'The Legislature of the State of California' * * *.' Article IV, section 24: 'Every Act shall embrace but one subject, which subject shall be expressed in its title. * * *' Article IV, section 25: 'The Legislature shall not pass local or special laws in any of the following enumerated cases': Subd. 2--'For the punishment of crimes and misdemeanors. * * *' Subd. 19--'Granting to any corporation, association, or individual any special or exclusive right, privilege, or immunity. * * *' Subd. 33--'In all other cases where a general law can be made applicable.' 8 Article XIV, sec. 1: '* * * 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.'