Opinion
14587
December 15, 1937.
Before MERCHANT, J., County Court, Spartanburg, August, 1937. Affirmed.
Mrs. T.B. Ross was convicted of violating the Act of March 10, 1934, 38 St. at Large, p. 1349, Sec. 128 (e), regulating the practice of the cosmetic art by practicing without securing a license, and she appeals.
Order of Judge Merchant follows:
The defendant, Mrs. T.B. Ross, was tried and convicted before Magistrate Dudley K. Gaffney, a magistrate in and for the County of Spartanburg, under a warrant charging that the said defendant "did operate a business of cosmetic art without the required license," in violation of the Act of the General Assembly of South Carolina, approved the 10th day of March, 1934, entitled "An Act to Regulate the Occupation of Hairdressers and Cosmetologists, for the Licensing of Persons to Carry on and Teach Such Practices, to Insure the Better Education of Regulating the Proper Conduct and Sanitation of Hairdressers and Cosmetologist Establishments and Schools, for the Protection of the Public Health, and to Provide Penalties for the Violation Thereof." of." 38 Stat. at Large, p. 1349. Upon conviction before the magistrate, the defendant was sentenced to pay a fine of $25.00 or serve 30 days upon the public works of Spartanburg County. In due time the defendant served notice of intention to appeal from the finding of the magistrate, and thereafter the appeal was heard by me in the County Court of Spartanburg County, which has jurisdiction to hear and determine all appeals in civil cases and criminal cases, respectively, from judgments rendered by the magistrate Courts, and all other inferior Courts.
The defendant was charged specifically with violating Section 1 and Section 28, subd. (e), which provides, among other things, that the violation thereof shall constitute a misdemeanor. Section 1 reads as follows: "No Person, firm, partnership, corporation or combination of persons shall for pay or reward, either directly or indirectly, practice or attempt to practice Cosmetic Art as hereinafter defined in the State of South Carolina without a certificate of (or) registration either as a Registered Apprentice or as a Registered Cosmetologist issued pursuant to the provisions of this Act by the State Board of Cosmetic Art Examiners hereinafter established." The pertinent sub-division, Section 28 (e), provides "(e) the willful failure to display a certificate of registration as required by Section 24."
Cosmetic art is defined by the Act as follows: "The systematic massaging, with the hands or mechanical apparatus, of the scalp, face, neck, shoulders and hands; the use of cosmetic preparations and antiseptics in connection therewith; manicuring, cutting, dyeing, cleansing, arranging, dressing, waving and marcelling of the hair, and the use of electricity for stimulating growth of hair." Section 2.
The Act sets forth the qualifications to be possessed by an applicant for registration and provides for examination of the applicant by the Board of Cosmetic Art Examiners. The board is empowered to promulgate reasonable rules and regulations for cosmetic art shops, beauty parlors, hairdressing establishments, cosmetic art schools and colleges. The examination of applicants for certificates of registration "shall include such practical demonstrations and oral or written tests as the said Board may determine." Section 17. The Act provides for the registration without examination, of those practicing cosmetic art at the time that the Act became law. Upon the applicant successfully passing the examination and becoming entitled to registration, there are certain license fees required. By the terms of the Act there are certain persons, while engaged in the proper discharge of their professional duties, exempt from its provisions. The ones so exempted are: "(a) Persons authorized under the laws of the State to practice Medicine and Surgery. (b) Commissioned Medical or Surgical Officers of the United States Army, Navy or Marine Hospital Services. (c) Undertakers. (d) Barbers. (e) The provisions of this Act shall not apply to persons engaged in demonstrating the use of any facial or beauty preparation for the purpose of offering for sale to the public such facial and/or beauty preparations." Section 22.
The board of examiners is given the right and power to issue or renew, suspend or revoke, any certificate of registration for violation of any of the causes set forth therein, after giving the person accused a proper hearing by the board. If, after hearing by the board, the board convicts the accused, the accused shall have the right of appeal to the Circuit Courts of this State.
The defendant's first contention is that the evidence produced at the trial of the case was not sufficient to sustain a conviction. The evidence, as reported by the magistrate, is amply sufficient upon which to base a finding of guilt, and, therefore, this ground of appeal is dismissed.
The defendant attacks the constitutionality of the Act under which she was tried and convicted and alleges that it is void and illegal for the reasons: (1) That the Act in question undertakes to delegate the legislative power to the Cosmetic Art Board in violation of Section 14, Article 1, of the State Constitution; (2) that the Act infringes upon and discriminates against the rights of the defendant in violation of Amendment 14, § 1, of the Constitution of the United States, and Section 5 of Article 1 of the State Constitution; and (3) that the Act is so indefinite and uncertain that its meaning cannot be determined with reasonable certainty and therefore, does not prescribe a crime upon which the defendant can be convicted.
The defendant testified that she has been engaged in conducting a beauty parlor in the City of Spartanburg for a number of years, in which she employed operators; that she is familiar with the methods used in beauty parlors and barber shops. She testified that at the present time some women occasionally go to barber shops to receive haircuts and shampoos as are obtained in beauty parlors, cosmetic art shops, and hairdressing establishments; that undertakers also do the same work as is done in barber shops, cosmetic art shops, beauty parlors, and hairdressing establishments. That the only difference between the work of the barber and that of the operators of cosmetic art shops, beauty parlors, and hairdressing establishments, according to the evidence, being that the barber shaves his male customers. The State undertook to contradict the evidence, showing that in some instances it was necessary to partly disrobe women for certain treatments given in beauty shops, to which the defendant agreed. The State brought out on cross-examination from the defendant that she had only had a very few male customers in her entire practice; that the only work done on these male customers was the manicuring of the nails; and that she did not cater to male customers for any work. The evidence further shows that the defendant had not complied with the requirements of the Act that she was charged with violating.
This now brings us to the consideration of the constitutional questions presented by the appeal.
Does the challenged Act delegate legislative powers to the Board of Cosmetic Art Examiners in contravention of Section 14 of Article 1 of the State Constitution and Section 1 of Article 3 of the State Constitution?
A Court should not declare a statute unconstitutional unless its invalidity is manifest beyond a reasonable doubt, and the burden to show its unconstitutionality rests upon the one making the attack. It does not require citation of authorities to sustain this proposition, for our Court has so often announced this principle, in cases which it has been called upon to decide the question of the constitutionality of certain statutes, that this principle has become axiomatic.
The defendant does not contend that the Legislature cannot regulate cosmetologists, beauty parlor operators, or hairdressing establishments. It must be conceded that the Legislature can, under its police power granted it by the Constitution, regulate trades or professions which may affect the health, comfort, and safety of the public. A study of the Act shows that it was complete in itself when it left the hands of the lawmakers, and the only duty resting upon the board is to make reasonable rules and regulations, not in conflict with the provisions of the Constitution or beyond the powers granted it relating to the enforcement of the Act. The board is given certain administrative duties and is vested with discretionary powers. The Legislature cannot delegate its power to make law but it may empower boards or commissions to make rules and regulations for administering the law and vesting them with discretionary powers. State ex rel. Port Royal Mining Co. v. Hagood, 30 S.C. 519, 9 S.E., 686, 688, 3 L.R.A., 841; Santee Mills et al. v. Query et al., 122 S.C. 158, 115 S.E., 202; State ex rel. Richards v. Moorer, 152 S.C. 455 150 S.E., 269; Cathcart v. City of Columbia et al., 170 S.C. 362, 170 S.E., 435; Heslep v. State Highway Department, 171 S.C. 186, 171 S.E., 913; Crawford v. Johnston, Governor, et al., 177 S.C. 399, 181 S.E., 476; Clarke v. South Carolina Public Service Authority et al., 177 S.C. 427, 181 S.E., 481; Stovall et al. v. Sawyer, Chief Highway Commissioner, et al., 181 S.C. 379, 187 S.E., 821; Fisher, Adm'x, v. Sheridan Co., 182 S.C. 316, 189 S.E., 356, 108 A.L.R., 981, filed December 30, 1936.
As was said by our Court in State ex rel. Port Royal Mining Co. v. Hagood, supra: "It is undoubtedly true that legislative power cannot be delegated; but it is not always easy to say what is and what is not legislative power, in the sense of the principle. The Legislature is only in session for a short period of each year, and during the recess cannot attend to what might be called the business affairs of the State. From the necessity of the case, as well as the character of the business itself, that must be performed by agents appointed for that purpose, such as the railroad commission, regents of the lunatic asylum, the State board of canvassers of elections, `sinking fund commission,' etc. The numerous authorities cited in the argument show conclusively that, while it is necessary that the law itself should be full and complete as it comes from the proper law-making body, it may be, indeed must be, left to agents in one form or another to perform acts of executive administration which are in no sense legislative."
The Court in the authority just cited set forth, approved, and adopted the view as stated in Locke's Appeal, 72 Pa., 491, 13 Am. Rep., 716, as follows: "Then, the true distinction, I conceive, is this: The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation."
It is therefore clear that the Act in no sense delegates or attempts to delegate to the board legislative powers and it follows that the Act in question does not contravene Section 14 of Article 1, or Section 1 of Article 3 of our State Constitution.
Does the Act in question deny the defendant the equal protection of the law, in violation of the Fourteenth Amendment of the Constitution of the United States and confer special privileges in violation of Section 5 of Article 1 of the Constitution of this State?
We now come to consider the real question involved and the one that constitutes the most serious attack upon the constitutionality of the Act. The provisions of the two Constitutions being practically the same, the two will be discussed together.
The defendant contends that inasmuch as the Act exempts from its provisions those authorized under the laws of the State to practice medicine and surgery; medical and surgical officers of the United States Army, Navy, or Marine Hospital services; undertakers, barbers, and those engaged in demonstrating facial or beauty preparations to the public, and makes its provisions apply to cosmetologists, those operating beauty parlors, and hairdressing establishments, the Act discriminates against her and others carrying on the trade or profession of cosmetologist, operators of beauty parlors, and hairdressing establishments. The defendant lays special stress on the fact that barbers are exempt from the provisions of the Act, notwithstanding the barber employs virtually all of the means, methods, and treatments described in the Act which would constitute one a cosmetologist, beauty parlor operator, or hairdresser.
For the purpose of this discussion, I deem it necessary to deal solely with the similarity of the trade or profession of that of a barber to a cosmetologist, beauty parlor operator, or hairdresser. Thus the defendant alleges that, while barbers perform virtually the same nature and kind of work and render the same services as the cosmetologist, beauty parlor operator, and hairdresser, the barber is specifically exempted from the provisions of the Act, while the defendant, and others similarly circumstanced, are subjected to liabilities not imposed on other persons or any other class of persons carrying on work of the same kind and nature. The defendant asserts that the Act thereby denies her and others similarly circumstanced the equal protection of the law.
The Legislature has the power to make a classification of its citizens; so that laws may be passed which, if applicable alike to all persons belonging to a given class, are not violative of the provisions of the Constitution forbidding a denial to any person of the equal protection of the law, but "such classification cannot be made arbitrarily. * * * [The classification] must always rest upon some difference which bears a reasonable and just relation to the Act in regard to which the classification is proposed, and can never be made arbitrarily, and without any such basis." Gulf, C. S.F. Ry. Co. v. Ellis, 165 U.S. 150, 17 S.Ct., 255, 257, 41 L.Ed., 666; Standard Oil Co. v. City of Spartanburg, 66 S.C. 37, 44 S.E., 377; City of Laurens v. Anderson, 75 S.C. 62, 55 S.E., 136, 117 Am. St. Rep., 885, 9 Ann. Cas., 1003; City of Columbia v. Alexander, 125 S.C. 530, 119 S.E., 241, 32 A.L.R., 746; Sirrine v. State, 132 S.C. 241, 128 S.E., 172, 175; Louisville Gas E. Co. v. Coleman, 277 U.S. 32, 48 S.Ct., 423, 72 L.Ed., 770; Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 48 S.Ct., 553, 72 L.Ed., 927; Frost v. Corporation Commission. 278 U.S. 515; 49 S.Ct., 235, 73 L.Ed., 483; Colgate v. Harvey, 296 U.S. 404, 56 S.Ct., 252, 256, 80 L.Ed., 299, 102 A.L.R., 54; Old Dearborn Distributing Co. v. Seagram-Distillers Corporation, 299 U.S. 183, 57 S.Ct., 139, 81 L.Ed., 109; 106 A.L.R., 1476.
In Sirrine v. State, supra, our Court quoted with approval from State v. Garbroski, 111 Iowa, 496, 82 N.W., 959, 56 L.R.A., 570, 572, 82 Am. St. Rep., 524, as follows: "Equality in right, privilege, burdens and protection is the thought running through the Constitution and laws of the State; and an Act intentionally and necessarily creating unequality therein, based on no reason suggested by necessity or difference in condition or circumstances, is opposed to the spirit of free government, and expressly prohibited by the Constitution."
Again our Court in the case just referred to quoted with approval the following from Freeman, note, 93 Am. St. Rep., 111: "A law is not constitutional if it confers particular privileges, or imposes peculiar disabilities or burdensome conditions in the exercise of a common right upon a class of persons arbitrarily selected from the general body of those that stand in the same relation to the subject of the law."
In Colgate v. Harvey, supra, that Court, in quoting from a former decision, Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct., 560, 64 L.Ed., 989, said: "But the classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' * * * The classification, in order to avoid the constitutional prohibition, must be founded upon pertinent and real differences, as distinguished from irrelevant and artificial ones. The test to be applied in such cases as the present one is: Does the statute arbitrarily and without genuine reason impose a burden upon one group of taxpayers from which it exempts another group, both of them occupying substantially the same relation toward the subject-matter of the legislation? `Mere difference is not enough.'"
Applying the test laid down by the foregoing enunciated principles, can it be said that there is a "pertinent and real difference, as distinguished from irrelevant and artificial ones" between the trade or profession of barbers and that of cosmologists, beauty parlor operators, or hairdressers? Does the act "without genuine reason impose a burden upon one group" (cosmetologists, beauty parlor operators, and hairdressers) "from which it exempts another group (barbers), both of them occupying substantially the same relation towards the subject-matter of the legislation?"
Our State Legislature passed an Act regulating barbers which was approved the 22d day of April, 1937, 40 Stat. at Large, p. 339. The Act defines barbering as follows:
" § 2. Any one or combination of the following practices, when done for pay, shall constitute the practice of barbering in the purview of this Act:
"(a) Shaving or trimming the beard, or cutting the hair,
"(b) Giving facial or scalp massages, or treatments with oils, creams, lotions, and other preparations, either by hand or mechanical appliances.
"(c) Singeing, shampooing, or dyeing the hair or applying hair tonics.
"(d) Applying cosmetic preparations, antiseptics, powders, oils, clays, and lotions to the scalp, neck, or face."
It cannot be said that only women receive the treatments set forth in the Act defining cosmetic art and that they especially needed the protection that would be afforded them by the Act. Again, common knowledge tells us that some men indulge in this attempt at beautification, receiving the same treatments in barber shops. Today women occasionally patronize barber shops, and receive at the hands of the barbers haircuts and shampoos, which are some of the same treatments given by cosmetologists, beauty parlor operators, and hairdressers. The real difference between the work of the barber, cosmetologist, beauty parlor operator, and hairdresser is that the barber shaves his male customers. Certainly the work of the cosmetologist, beauty parlor operator, hairdresser, and barber brings them alike into contact with the person of their respective patrons, giving to them equal opportunity to spread disease and do injury to their patrons through careless and unsanitary use of the hands and mechanical apparatus used in administering the various treatments. As has already been said, the barber does things which according to the definition set forth in the Act would make him a cosmetologist, beauty parlor operator, and hairdresser, the only difference being that the barber applies the razor to the faces of his male customers. Experience teaches us that in the process of shaving his customers, it is not unusual for the barber to cut the customer's face. Surely there is no greater opportunity for bringing about infection or the transmission of disease than through an open wound. Barbers are exempt from the Act.
Citing from American Jurisprudence, Vol. 7, p. 615, § 5: "There is some difference of opinion, depending, in part at least, upon the wording of the statute or ordinance involved, as to whether a regulation of barbers and barber shops includes beauty parlors, etc. It has been held that the proprietor of a ladies' hairdressing establishment and beauty parlor in which trimming of bobbed hair is done for women customers is within the provision of a statute requiring one cutting hair for compensation to secure a license. State v. Leftwich, 142 Wn., 329, 253 p., 448, 59 A.L. R., 539. As has been said, it is a matter of common knowledge that the trade of barbers and that of the beauty culturist are close akin. In other cases the view is taken that the proprietor of a hairdressing and beauty parlor, the important features of whose business include cutting hair, massaging, clipping hair with barber clippers, singeing the hair, giving tonics, shampooing, and manicuring, but not shaving the face, is not a `barber', within the meaning of that word as used in a statute subjecting the followers of that occupation to examination and regulation. Keith v. State Barber Board, 112 Kan., 834, 212 P., 871, 31 A.L. R., 432."
It was brought out in the evidence at the trial of the case that the cosmetologist did not shave either male or female customers. Now, if this practice is sufficient to distinguish between the two occupations, which I believe it does, then the barber was properly exempted from the provisions of this Act.
Also I have perused through the telephone directories which have classified sections in this State, as well as the more important cities of the country, and I find that barber shops and beauty shops are classified separately. This is an indication to me that certainly in the public mind the two professions are separate and distinct; that is, barber shops are commonly patronized by men, whereas beauty shops are commonly patronized by women. This difference is becoming more pronounced every day.
Now, if the shaving of the male customer in a barber shop which is not done in a beauty parlor, that is, the shaving of a male or female customer in a beauty parlor, is not sufficient to differentiate between the two professions, then the two professions are identical. If we treat the professions as being identical, that is, that the barber and the cosmetologist do exactly the same kind of work, my opinion is that the Act in question is still constitutional, for the reason that since the passage of the Act in question, as previously stated, the Legislature has seen fit to pass an Act entitled "An Act to Regulate the Practice of Barbering in the State of South Carolina," approved the 22d day of April, 1937, which Act was called to my attention in the argument of this matter.
In Section 15 (f) of the said Act we find that those who operate beauty shops are specifically exempt from the Barbers' Act. The section referred to reads as follows: "The following persons are exempt from the provisions of this Act while engaged in the proper discharge of their professional duties: * * * (f) Persons practicing hair dressing and beauty culture in hairdressing and beauty shops patronized by women."
The real question involved is: Are both the cosmetologist and the barber now regulated, thereby discriminating against neither?
It makes no difference whether the barber and the cosmetologist were regulated in the same Act or not. The fact remains that both are now regulated.
In Section 26 of the Barbers' Act it provides that the Act shall become effective after June 30, 1937. The warrant in this case was taken out on July 8, 1937, after the Barbers' Act became effective.
It follows that the Act in question is reasonable and not discriminatory, especially in the light of the Act regulating the barbers, and it confers no privilege upon the barber which is denied the cosmetologist, beauty parlor operator, and hairdresser. The Act, therefore, does not deny equal protection of the laws as guaranteed by both the State and Federal Constitutions. Const. S.C. Art. 1, § 5; Const. U.S., Amend. 14, § 1.
Is the Act in question so indefinite and uncertain that it does not prescribe a crime for which the defendant could be convicted, and, therefore, operative to deny due process of law to defendant, in violation of the State and the Federal Constitutions?
A criminal statute prohibiting the doing or requiring the doing of an Act must set forth definitely the crime and the elements constituting it, so that the ordinary person may know what not to do or what to do to escape its penalty. From a reading of the Act and under the authority of Wingfield et al. v. South Carolina Tax Commission, 147 S.C. 116, 144 S.E., 846; Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct., 126, 70 L.Ed., 322, 323; Whitney v. California, 274 U.S. 357, 47 S.Ct., 641, 71 L.Ed., 1095; Old Dearborn Distributing Co. v. Seagram-Distillers Corporation, supra, it is clear that the Act in question is not violative of the due process clause of the State and the Federal Constitutions. Const. S.C. Art. 1. § 5; Const. U.S., Amend. 14, § 1.
I, therefore, conclude that the Act in question, for the reasons stated, does not deny the defendant the equal protection of the laws and it is constitutional and valid under both the Federal and the State Constitutions, and that the defendant was properly convicted under the Act.
It is, therefore, ordered and adjudged, that the conviction of the defendant be and the same is hereby sustained, and the appeal is hereby dismissed.
Mr. Claude A. Taylor, for appellant, cites: As to Legislative power: 30 S.C. 519; 9 S.E., 686; 3 L.R.A., 846; 152 S.C. 455; 150 S.E., 269; 122 S.C. 158; 155 S.E., 202; 170 S.C. 362; 170 S.E., 435; 177 S.C. 399; 181 S.E., 481; 181 S.C. 379; 187 S.E., 821. Right to enact laws governing classes: 167 S.E., 298; 66 S.C. 37; 44 S.E., 377; 75 S.C. 62; 55 S.E., 136; 125 S.C. 53; 119 S.E., 241; 132 S.C. 241; 128 S.E., 172; 165 U.S. 150; 41 L.Ed., 66; 277 U.S. 32; 72 L.Ed., 770; 278 U.S. 55; 73 L.Ed., 483; 296 U.S. 404; 80 L.Ed., 299. Act must be clear: 269 U.S. 385; 70 L.Ed., 323; 274 U.S. 357; 71 L.Ed., 1095.
Messrs. William P. Donelan and Allen Lambright, County Solicitor, for respondent, cite: Right of Legislature to empower boards and commissions to administer law: 30 S.C. 519; 9 S.E., 686; 3 L.R.A., 846; 122 S.C. 158; 155 S.E., 202; 152 S.C. 455; 150 S.E., 269; 170 S.C. 362; 170 S.E., 435; 171 S.C. 186; 171 S.E., 913; 177 S.C. 399; 181 S.E., 476; 177 S.C. 427; 181 S.E., 481; 181 S.C. 379; 187 S.E., 821. Classification: 66 S.C. 62; 55 S.E., 136; 125 S.C. 530; 119 S.E., 241; 132 S.C. 241; 128 S.E., 172; 165 U.S. 150; 41 L.Ed., 666; 277 U.S. 32; 72 L.Ed., 927; 278 U.S. 515; 73 L.Ed., 483; 296 U.S. 404; 80 L.Ed., 299. Due process of law clause: 269 U.S. 385; 70 L.Ed., 323; 274 U.S. 357; 71 L.Ed., 1095.
December 15, 1937. The opinion of the Court was delivered by
At the 1934 session of the General Assembly of South Carolina there was passed an Act entitled "An Act to Regulate the Occupation of Hairdressers and Cosmetologists * * * and to Provide Penalties for the Violation Thereof," 38 Stat. at Large, p. 1349. This Act was approved the 10th day of March, 1934.
At the 1937 session of the General Assembly there was passed "An Act to Regulate the Practice of Barbering in the State of South Carolina," 40 Stat. at Large, p. 339. This Act was approved the 22d day of April, 1937.
The appellant was tried before a magistrate in Spartanburg County upon a charge of violating Section 1 and Section 28, Subd. (e), of the Act of 1934, regulating the practice of the cosmetic art, by practicing without securing a license. She was convicted and from the judgment and sentence of the Magistrate's Court she appealed to the County Court of Spartanburg County. The 14th day of August, 1937, Hon. Arnold R. Merchant, Judge of said Court, filed his order, affirming the judgment of the Magistrate's Court and dismissing the appeal.
From that order, the appeal came to this Court, upon exceptions which challenge the validity and constitutionality of the Act which regulates the practice of the cosmetic art in this State. The principal contention of the appellant is that the Act under which she was convicted is unconstitutional because it exempts barbers from its provisions.
When the case was called for hearing in this Court, counsel representing the defendant in the case of State v. Hilley, tried in Greenville County on a charge of violating the Cosmetic Act, in which Hilley is respondent, moved the Court to require the State to try that case then, although no brief had been filed in that case. The motion was refused. Counsel then moved that the two cases of State v. Hilley and State v. Ross be consolidated and heard together. This motion likewise was refused.
Thereupon counsel asked that they be allowed to file in the Ross case briefs as amicus curiae, which request was granted.
Counsel have apparently assumed that that concession gave them the right to present the Hilley case to this Court and to argue the appeal. At any rate, they have included in their brief the order of Judge Bellinger in the Hilley case, which held the Cosmetic Act to be unconstitutional, and have argued it as bearing on the Ross case.
This Court is not now trying the Hilley case. Its attention is focused on the Ross case. The Hilley case can have no bearing on the appeal in the Ross case, and what is said in this opinion in the Ross case has no relation to, nor bearing on the Hilley case.
We are satisfied with and concur in the order of Judge Merchant. This much we may add to his well-considered order.
It is common knowledge that the principal and chief work of the barber is to cut the hair and shave the faces of his customers; what he does by way of putting a tonic on the head from which he has cut the hair, or a lotion on the face he has shaved, is incidental to the primary work of cutting and shaving.
The principal and chief work of the cosmetologist is to treat the scalp and hair, to give permanent waves, to beautify the complexion of her patrons, who are almost entirely women.
Since the passage of the Act of April 22, 1937, regulating the practice of barbering, these differences, or alleged similarities, of occupation seem to be no longer of consequence.
Let the order of Judge Merchant be reported.
Judgment affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.