Summary
In Wilson v. City of Zanesville, 130 Ohio St. 286 (199 N.E. 187), a municipal ordinance of the city of Zanesville providing for the closing of barber shops during the nighttime was before the court.
Summary of this case from Eanes v. City of DetroitOpinion
No. 25401
Decided December 18, 1935.
Constitutional law — Municipal corporations — Local police, sanitary and other similar regulations — Sections 3 and 7, Article XVIII, Constitution — Regulations valid exercise of police power, when — Ordinance regulating closing of barber shops, constitutional, when.
1. By the terms of Sections 3 and 7 of Article XVIII of the Constitution of Ohio, municipalities have power and authority to pass local police, sanitary and other similar regulations, provided they are not in conflict with general laws.
2. Regulations which are reasonable and have a definite relation to the public health, morals and safety, or to the general welfare, constitute a valid exercise of the police power.
3. A municipal ordinance which requires the closing of barber shops before eight o'clock a. m. and after six o'clock p. m. on Monday, Tuesday, Wednesday and Friday, before eight o'clock a. m. and after twelve o'clock noon on Thursday, and before eight o'clock a. m. and after eight o'clock p. m. on Saturday and days (other than Sunday) prior to certain named holidays, is not unreasonable, has a real and substantial relation to public health, morals and safety, is a valid exercise of the police power, and is constitutional.
ERROR to the Court of Appeals of Muskingum county.
The plaintiff in error, Wesley Wilson, was charged in the Municipal Court of the city of Zanesville, Ohio, with keeping his barber shop, located in that city, open after six o'clock p. m. on October 19, 1934, in violation of a city ordinance passed August 13, 1934. The first nine sections provide for licensing barbers and the regulation of barber shops. The charge is based on Section 10, which reads as follows: "It shall be unlawful for any person, persons, firm or corporation to operate, conduct, or maintain any barber shop or any place where barbering is done, in the City of Zanesville, Ohio, to be open for business of barbering for revenue, pay, free or otherwise, before eight o'clock a. m. and after six o'clock p. m. on the following days, to-wit: Monday, Tuesday, Wednesday, and Friday of each week, and to be open for business at eight o'clock a. m. and close at twelve o'clock noon on Thursday of each and every week; on Saturday of each and every week and on all days, except Sunday, previous to the following holidays, to-wit: New Year's Day, Decoration Day, Fourth of July, Labor Day, Thanksgiving Day and Christmas to open at eight a. m. and close at eight o'clock p. m."
Section 11 provides a penalty by way of a fine.
Counsel for plaintiff in error states in his brief that his client, Wesley Wilson, owns his barber shop and does not employ any other person but does the work himself.
The defendant filed a motion to quash the affidavit which was overruled; thereupon a demurrer was filed setting forth that the affidavit did not state facts sufficient to constitute an offense for the reason that the ordinance on which it was based is in contravention of the Constitution of Ohio, and particularly the Fourteenth Amendment to the Constitution of the United States, and therefore was not a proper exercise of the police power.
The Municipal Court sustained the demurrer and discharged the defendant. Error was prosecuted by the city to the Common Pleas Court. On hearing before that tribunal the judgment was affirmed. Thereupon error was prosecuted to the Court of Appeals and in that court judgment of reversal was entered and the cause remanded with directions to overrule the demurrer. Thereupon the plaintiff in error filed a petition in error as of right in this court and the cause has been submitted on the merits.
Mr. William Freilich, for plaintiff in error.
Messrs. Graham Graham, for defendant in error.
The inquiry presented is whether the provisions of the ordinance requiring the closing of barber shops in Zanesville before eight o'clock a. m. and after six o'clock p. m. on Monday, Tuesday, Wednesday and Friday, and before eight o'clock a. m. and after twelve o'clock noon on Thursday and before eight o'clock a. m. and after eight o'clock p. m. on Saturday or days (other than Sunday) before certain named holidays, are within a proper exercise of the police power.
The first question requiring attention is the power of the municipality as to local police regulations generally. Section 34 of Article II of the Constitution of Ohio provides: "Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes; and no other provision of the constitution shall impair or limit this power."
In our judgment the word laws does not embrace municipal ordinances and therefore this provision defines the legislative power of the General Assembly of Ohio only. However, under the prevailing constitutional provisions all municipalities derive their power of local self-government and their local police power from the Constitution itself. Village of Perrysburg v. Ridgway, 108 Ohio St. 245, 140 N.E. 595; Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519.
Section 3, Article XVIII, of the Ohio Constitution, provides: "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
Section 7 of the same Article provides: "Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this article, exercise thereunder all powers of local self-government."
Zanesville is a charter or home rule city, and in the exercise of its local police power has the same authority to adopt and enforce ordinances as a city which has not adopted an independent charter, namely, "such local police, sanitary and other similar regulations as are not in conflict with general laws."
Are we confronted with such a conflict in the instant case? The Legislature of this state has passed a regulatory measure relating to barbers. Sections 1081-1 to 1081-27, General Code. This act, however, does not purport to cover hours of labor by barbers or the number of hours in a day or week barber shops may be kept open. This latter field has therefore not been preempted by the state law-making body and the provisions under consideration are not in conflict with general laws.
There is, therefore, no question of the authority of the municipality to pass this legislation provided it is within a proper exercise of the police power.
Under the Fourteenth Amendment of the Federal Constitution neither the state nor the municipality, which is an arm of the state, can "deprive any person of life, liberty, or property, without due process of law." Section 16 of Article I of the Ohio Constitution contains a similar provision in which the words "due course of law" are equivalent in meaning to "due process of law." Salt Creek Valley Turnpike Co. v. Parks, 50 Ohio St. 568, at page 579, 35 N.E. 304, 28 L.R.A., 769; State v. French, 71 Ohio St. 186, at page 201, 73 N.E. 216, 104 Am. St. Rep., 770. This section of our state Constitution must be read in the light of Sections 1 and 19 of the same article which among other things protect individual liberty and private property.
These constitutional provisions, however, are always subject to a valid exercise of the police power.
The specific problem involved in the instant case as stated by counsel for plaintiff in error in his brief is "whether the ordinance is reasonable and also how far the police power of the state of Ohio and a municipal corporation can go in regulating business hours."
What is said in the recent case of Nebbia v. New York, 291 U.S. 502, 54 S.Ct., 505, 78 L.Ed., 940, is pertinent:
"The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. 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. It results 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, because the reasonableness of each regulation depends upon the relevant facts. * * *
"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. * * *
"Laws passed for the suppression of immorality, in the interest of health, to secure fair trade practices, and to safeguard the interests of depositors in banks, have been found consistent with due process. These measures not only affected the use of private property, but also interfered with the right of private contract. Other instances are numerous where valid regulation has restricted the right of contract, while less directly affecting property rights.
"The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned." (Italics ours.)
Conditions and restrictions imposed upon business in the interest of the general welfare have taken many and various forms. State regulation prohibiting entirely manufacture of intoxicating liquor has been held valid. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct., 273, 31 L.Ed., 205.
The fixing of hours within which various businesses may be carried on has been upheld: (laundries) Barbier v. Connolly, 113 U.S. 27, 5 S.Ct., 357, 28 L.Ed., 923; Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct., 730, 28 L.Ed., 1145; (pawn shops, secondhand stores, and junk shops) Hyman v. Boldrick, Judge, 153 Ky. 77, 154 S.W. 369; City of Butte v. Paltrovich, 30 Mont. 18, 75 P. 521; (jewelry auctions) Biddles v. Enright, 239 N.Y. 354, 146 N.E. 625, 39 A. L. R., 766; Clein v. Atlanta, 164 Ga. 529, 139 S.E. 46, 53 A. L. R., 933; (soft drink parlors) Churchill v. Albany, 65 Or. 442, 133 P. 632, Ann. Cas., 1915A., 1094; (pool and billiard halls) Tarkio v. Cook, 120 Mo., 1, 25 S.W. 202; and (closing barber shops on Sunday) Stanfeal v. State, 78 Ohio St. 24, 84 N.E. 419. For other cases see 55 A. L. R., 242.
The right of a state legislature to regulate hours of labor in bakeshops was denied in Lochner v. New York, 198 U.S. 45, 25 S.Ct., 539, 49 L.Ed., 937, but in the case of Bunting v. Oregon, 243 U.S. 426, 37 S.Ct., 435, 61 L.Ed., 830, a state law limiting the hours of labor in any mill, factory, or manufacturing establishment was upheld as a valid health regulation. Chief Justice Taft said in his dissenting opinion in Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct., 394, 67 L.Ed., 785, that he had always supposed that the Bunting case overruled the Lochner case sub silentio.
Enough authority has been cited to make it plain that hours of business as well as hours of labor may be regulated and restricted in proper cases in the lawful exercise of the police power.
It is next in order to turn to provisions relating to barber shops. It seems to be universally conceded by the courts that the barber trade may be licensed and inspected in the interest of public health and many cases are collected upholding provisions of this character as constitutional and within the police power in 20 A. L. R., 1111, and 98 A. L. R., 1089.
In the case of People v. Logan, 284 Ill. 83, 119 N.E. 913, it is said: "The trade of a barber brings him in direct contact with the persons of his patrons, and careless and unsanitary practices in his trade may induce diseases of the skin. Sycosis (popularly known as barber's itch) is a common form of disease of the face and scalp propagated by the use of infected razors and brushes. Other and more serious diseases may also be similarly spread. It cannot be said that the reasonable regulation of the trade of a barber has no relation to the health and safety of the public. Such regulation is therefore within the scope of the police power which the State inherently possesses to restrain and control the exercise of private rights in such manner as may be necessary and appropriate to promote the public health, safety and welfare."
While it is well settled that the barber trade has a relation to public health and safety and may be regulated, yet in the instant case the contention is that the restriction of the hours barber shops may be open goes too far and so constitutes an unjustifiable interference with private rights. In many states it has been held that laws or ordinances which go beyond licensing and inspecting barber shops and limit the hours of business, are not within the valid exercise of the police power. Ganley v. Claeys, 2 Cal.2d 266, 40 P.2d 817; City of Alexandria v. Hall, 171 La. 595, 131 So. 722; Chaires v. City of Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A.L.R., 230; Knight, Chief of Police, v. Johns, 161 Miss. 519, 137 So. 509; State, ex rel. Newman, v. City of Laramie, 40 Wy., 74, 275 P. 106; McDermott v. City of Seattle, 4 F. Supp., 855; Patton v. City of Bellingham, 179 Wn. 566, 38 P.2d 364, 98 A. L. R., 1076; State, ex rel. Pavlik, v. Johannes (Minn.), 259 N.W. 537.
These decisions in the main are based upon the theory that the legislation constitutes an unreasonable attempt to regulate lawful private business and limit the use of private property and has no proper relation to public health and sanitation. These views are grounded on the assertion that barber shops are sufficiently regulated and cleanliness secured by requiring certain standards through licensing and inspection. In two of these cases, Patton v. City of Bellingham, supra, decided December 6, 1934, and State, ex rel. Pavlik, v. Johannes, supra, decided March 15, 1935, there are vigorous dissenting opinions.
In Patton v. Bellingham, Blake, J., in his dissenting opinion, said at page 582: "* * * looking through the pretext and at the reality, the purpose of this ordinance is to curb competition of the chain store character in the barber trade. And it is every whit as justifiable as the laundry ordinance. The chain shops, by working two or three shifts, can keep open twelve, sixteen or twenty-four hours. In order to live, the one or two chair shops must keep open for a like period. Thus through economic necessity, men in the latter shops are forced to work for a length of hours that deprives them of the leisure that makes life worth living. The power of the government to enact legislation to alleviate such conditions is inherent. Such legislation is grounded in the government's 'right to protect all persons from the physical and moral debasement of uninterrupted labor.' "
Some of these dissenting opinions emphasize the idea that barber shop closing ordinances are merely regulations of the hours of labor. There is more substance to this concept than appears at first blush. Barbering is not just like any other business. To merely limit the number of hours per day that a barber may be employed is to fail to protect other shops and especially the one-man shop against the evils arising from chain and all-night barber shops. Better be it said that fixing the hours the shop shall remain open may be to the legislative mind the only effective way to regulate hours of labor in this trade.
In Falco, Prosecutor, v. Atlantic City, 99 N.J.L. 19, 122 A. 610, an ordinance requiring barber shops to close at nine o'clock p. m. on Saturdays and at eight o'clock p. m. on the week days was held valid. In the course of the opinion it is said: "It seems probable that one reason for the legislation upon which it rests was to enable municipal authorities to fix a definite time within which their inspectors might readily and adequately perform their duties with respect to such places. Barber shops are public places, frequented by all classes. Sanitary supervision thereof is very generally regarded as necessary and powers conferred to that end should receive liberal construction so that they may be rendered effective. * * * To allow barber shops to remain open to the public at all hours of the night might well be regarded as rendering ready and adequate inspection inconvenient or difficult or even impossible, and consequently detrimental to public health. Such considerations are for the fair determination of the municipal authorities, and we cannot say that the regulation in the instant case is unreasonable."
We do not regard this reasoning as "specious," especially in view of the fact that some barber shops are kept open only at night; and this suggestion leads us naturally to the consideration of another phase of the matter.
The judge of the municipal court who heard the case below points out in an opinion filed by him that the barbering done outside the hours prescribed by the ordinance was by residents of the city who worked during the day in other callings or at other labor and sought to supplement the earnings thus gained by running barber shops at night. It is apparent to the open mind that one who has toiled all day will not be fully capable of commanding the needed energy and attention to apply means of sanitation, and to answer the demands of cleanliness, which alone can insure the health of the barber's patrons.
Shall this court say to the municipality that regulatory measures are necessary and proper with reference to barber shops, but that none must be adopted which prevents a man who works during the day at other labor from plying the barber trade at night and thus risking the health of his patrons, when he is unfitted through the travail of a day already done to properly perform his duties as a barber?
There is another consideration which appeals to the legislator as well as to the jurist. Barber shops, which are usually respectable, and operated by law-abiding citizens, may become lounging places for the idle and dissipated, and so a menace to minors, and often in our cities the barber shop in front may be a blind for a den of thieves, professional gamblers, and racketeers behind. This situation is well known, and is even a matter of common knowledge among policemen in our large cities. At the time a certain policy racket man and former bootlegging beer baron, was recently killed in New York City two of his henchmen were shot down in a midnight barber shop of a subway entrance. In the language of the street a "midnight barber shop" is one that keeps open all night. If barber shops may run at all times of the night the number of vicious places of this character will inevitably be augmented. If similar evils may be thwarted by legislation fixing hours that billiard and pool rooms may remain open, why should not the remedy of municipal legislation be applied in the case of barber shops? Such an ordinance therefore has a relation to public morals and safety.
In our judgment this court should not confine the police power within such limits that the public cannot be protected in any case when there seems to be a reasonable basis for exercising the legislative purpose to protect the public health, morals and safety. It has been pointed out that the law-making power is primarily the branch of government that should determine the need of such provisions. We quote again from the case of Nebbia v. New York, supra, at page 537: "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 of due process are satisfied, and judicial determination to that effect renders a court functus officio. * * * With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal. The course of decision in this court exhibits a firm adherence to these principles. 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."
We are of the opinion that the provisions of the ordinance under inquiry are neither unreasonable, discriminatory, arbitrary nor capricious, and that they bear a "real and substantial relation" to the object sought to be attained, namely, public health, morals and safety.
Constitutional guaranties must be observed and rights thereunder protected; on the other hand the rights of the public or a considerable part thereof must be conserved by restricting, through valid exercise of police power, the individual who seeks to operate his business so as to be a public menace. "Individual liberty" is a comprehensive term but man must be ever mindful that the liberty of one person should end where that of others begins. A business that is harmful to the many may be curbed by legislation within prescribed limitations to prevent the harm; and at the same time the right of property must always remain entitled to protection and subject to reasonable and proper regulation. The police power is not static and must ever be exercised in the light of changing conditions. To continue to apply principles in accord with circumstances no longer existing and to refuse to curtail new evils from fear of demolishing outworn precedents is to close the eyes to the necessities of the times and thus fail to give to constitutional guaranties their true import. Altered social surroundings may impart to long standing constitutional provisions a "new content and new meaning" and require an application and interpretation previously unthought of. Where new evils detrimental to public health, morals and safety spring up due to the march of civilization, the evils must be met by proper police regulations and such regulations are of necessity within the police power. Such evils have now come to light in the instant case and to deny power to cope with them is to deny the effectiveness of the police power itself.
As we are of the opinion that the ordinance was a valid exercise of the police power, the judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, DAY and ZIMMERMAN, JJ., concur.
JONES and MATTHIAS, JJ., dissent.
In my whole judicial experience, covering thirty-five years' service on the Appellate and Supreme Courts of this state, I have seldom encountered a legal contention that presented as little judicial merit as the one advanced by the city of Zanesville in the present case. One reading the majority opinion may well wonder what the real crux of this controversy between the city and the barber is. In the syllabus no mention is made of Section 34, Article II of the Ohio Constitution, and the opinion gives it but scant attention.
(1) The pertinent portion of that constitutional provision reads: " Laws may be passed fixing and regulating the hours of labor * * *; and no other provision of the constitution shall impair or limit this power."
On June 6, 1934, this court, in Village of Brewster v. Hill, 128 Ohio St. 354, 191 N.E. 366, held that the term "law" used in various sections of our Constitution and embraced in the phrase "laws may be passed", applies to statute law only and not to local, municipal laws or ordinances. That case received the concurrence of every member of this court, namely, Jones, J., Weygandt, C.J., Stephenson, Matthias, Bevis, Zimmerman and Wilkin, JJ. In the course of the opinion we called attention to the fact that the phrase "laws may be passed" permeated the amendments to the Constitution adopted in 1912, and that the term did not comprehend municipal ordinances; and the opinion made special reference to the fact that the same phrase, "laws may be passed", is found in Article II, Section 34, which is now being considered by this court.
The foregoing section was adopted at the same time that Article XVIII, Section 3, was adopted. Two distinct subjects were presented in separate constitutional sections; one, the regulation of "the hours of labor" (Article II, Section 34), was confided to state legislative authority by the phrase "laws may be passed"; the other, the adoption and enforcement of "police, sanitary and other similar regulations" (Article XVIII, Section 3), was confided to the municipality. The provisions of Article II, Section 34, ex proprio vigore, definitely and separately seized the subjects — the fixing and regulating the hours of labor and the establishment of minimum wages — and made them amenable of state-wide legislative control where they should be, since, by the method of statutory control, such state scheme would have the merit of having uniform operation over all barber shops in the entire state under Article II, Section 26, and would not make licensed barbers criminals for an act done in one portion of the state which was lawful elsewhere.
The Municipal Court held the ordinance constitutionally invalid; the Court of Common Pleas, in affirming the Municipal Court, likewise held the ordinance invalid. When the case was submitted to the Court of Appeals, that court, apparently not being apprised of our decision in the case of Village of Brewster v. Hill, supra, rested its decision chiefly on Article II, Section 34, as a ground for reversal of the two lower courts. The appellate court held in effect that the phrase, "laws may be passed", included municipal ordinances. From statements made in oral argument before this court last October, it appeared that counsel for the city were not advised of our decision in the Brewster case, supra.
One of the chief duties of a court of dernier resort is to be consistent in its rulings, so that the bench and bar may ascertain the legal principles controlling decided cases. It is not an infrequent occurrence where lawyers cite the same case in support of their divergent views. The dissenting members of this court adhere to the legal principle announced in Village of Brewster v. Hill, supra, which distinctly held that the phrase, "laws may be passed", applies to state law only and not to municipal ordinances, as in the instant case; and where any Ohio court so construes the phrase, "laws may be passed", so as to read, "laws (and ordinances) may be passed, fixing and regulating the hours of labor", such a construction is equivalent to an amendment of Section 34, Article II, by judicial fiat.
(2) While we think the foregoing conclusion is absolutely dispositive of this case, there is another and compelling reason why the judgment of the two lower courts should be affirmed and the appellate court reversed. We have always held that police and sanitary regulations are subject to control by state and municipal authorities and, where a state has not acted, a home-rule city may enforce reasonable regulations which are not in conflict with state law. These principles have been announced so often by this court that it seems unnecessary to cite cases in their support. But that feature does not reach the fundamental legal point in issue in this case. The trade of barbering is, like many others, a lawful business. The question to be determined is whether a city council can impose upon the shop's owner or upon his employees, in invitum, certain, particular hours of a day which they must employ, and those only, in the conduct of such business. Were the question of inspection or sanitation of the shop in issue in this court, the right of regulation would not be questioned; but the police power does not enter the picture in this case. Section 10 of the ordinance fixing the hours of labor in Zanesville barber shops does not purport to be an inspection or sanitary measure. It is purely an hour-fixing ordinance. Many of our fields of activity are subject to the exercise of the police power. In this state, filling stations, restaurants, hotels, factories and manufacturing establishments are subject to the exercise of police power; but it does not follow that those establishments are subject to municipal regulation in respect to the particular hours when labor is to be employed. Neither the N. R. A. in the heyday of its activities nor the American Federation of Labor has asked for such drastic regulation of American labor and industry. While they may have sought a five or six-hour day or a thirty-hour week, they sought no legislation prescribing when those particular hours or days should be employed.
This subject is not a new one in this country. Since the year 1923 the courts of final jurisdiction of seven different states have passed upon this exact question, and each has denied the constitutional power of municipalities to fix the hours of labor in barber shops. The case of Falco, Pros., v. Atlantic City, 99 N.J.L. 19, quoted in the majority opinion, was decided by an inferior court composed of but two judges. It held that the ordinance regulating the hours of opening and closing barber shops was a legitimate exercise of the police power. The court seems to have based its decision upon the fact that a reason for the legislation was that barber shops required sanitary supervision and required the fixing of a definite time for inspection. If such be the reasons, they are non-existent in Ohio, because in 1933 the state adopted a comprehensive barbers' code comprising twenty-seven sections of our state law (115 Ohio Laws, 312), one of the sections providing that the State Board of Examiners should prescribe sanitary requirements for barber shops subject to the approval of the State Department of Health, with authority given state agents to enter and inspect any barber shop during business hours.
As heretofore stated, the courts of last resort in seven states have passed upon the exact question we have under consideration and each has held that an ordinance regulation prescribing the hours to be employed in a barber shop is unconstitutional, unreasonable and void. Those states are Georgia, Wyoming, Louisiana, Mississippi, California, Washington and Minnesota.
In the Georgia case, Chaires v. City of Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A. L. R., 230, decided in 1927, an ordinance was adopted providing that all barber shops in the city should be closed during week days at 7:00 p. m., except Saturdays, when they were to close at 9:00 p. m. The Supreme Court of Georgia held that this ordinance was void.
In State, ex rel. Newman, v. City of Laramie, 40 Wy., 74, 275 P. 106, decided in 1929, the city had adopted an ordinance regulating barber shops by providing that no barber shop should be open for business earlier than 8:00 a. m. or later than 6:00 p. m., excepting. Saturdays, etc. The Supreme Court of Wyoming held that the ordinance was not a reasonable exercise of the power of regulation and that the ordinance was void.
In the case of City of Alexandria v. Hall, 171 La. 595, 131 So. 722, decided in 1930, the city had passed an ordinance requiring barber shops to be closed at 6:30 p. m., except Saturdays, and on days preceding legal holidays. The Supreme Court of Louisiana held that the ordinance was not a reasonable exercise of the city's power of regulating barber shops and that it was unconstitutional and void.
In the case of Knight, Chief of Police, v. Johns, 161 Miss. 519, 137 So. 509, decided in 1931, a city in Mississippi had adopted an ordinance forbidding barber shops to open before 7:30 a. m. or to remain open after 6:30 p. m. The Supreme Court of Mississippi held that the city ordinance was unreasonable and invalid.
In the case of Ganley v. Claeys, 2 Cal.2d 266, 40 P.2d 817, decided by the Supreme Court of California this year, it appears that a city in California had adopted an ordinance regulating barber shops by providing that they should be closed "from 6:30 p. m. until 8 o'clock of the following morning except on Saturdays and days preceding specified holidays". The Supreme Court of California held that the ordinance had no reasonable relation to public health and was void, being in contravention of the Fourteenth Amendment to the Federal Constitution and of the Constitution of California.
In the case of Patton v. City of Bellingham, 179 Wn. 566, 38 P.2d 364, 98 A. L. R., 1076, decided about a year ago, a city in the state of Washington had passed a municipal ordinance making it unlawful to open barber shops earlier than 8:00 a. m. or to close later than 6:00 p. m. on week days, other than Saturdays, etc. The Supreme Court of Washington held that, while the city had authority to provide for inspection of barber shops to ascertain their sanitary condition, the regulation by ordinance of the hours when barber shops should open and close was not a valid exercise of the police power.
The latest case we find dealing upon this exact subject, decided March 15, 1935, is State, ex rel. Pavlik, v. Johannes, reported by the Supreme Court of Minnesota in 259 N.W. 537. The Supreme Court of Minnesota reviewed previous cases dealing with the subject of regulating barber shop hours and held that a city ordinance limiting hours when barber shops should be open for business was violative of the due process clauses of the State and Federal Constitutions. In that case, the city of Minneapolis had adopted an ordinance providing that no barber shop should be kept open for business before 8:00 a. m. or after 6:30 p. m. of any day except Saturday and days preceding legal holidays. The syllabus in the Minnesota case reads as follows: "An ordinance of the city of Minneapolis which assumes to prescribe the hours when barber shops may be open for business is unconstitutional and void in so far as it prescribes such hours, in that it violates the due process clauses of the state and Federal Constitutions." Six of the seven judges appear to have concurred in that decision.
I do not often quote from cases at such length and do so now merely to show the general unanimity of decisions among the states of the Union upon this grave and important legal question. Despite the fact that, since 1923, the courts of last resort of all those states have held these ordinances void, the majority opinion quotes the views of a dissenting judge in support of such an ordinance; but I rest my decision upon the well-considered conclusions reached by the courts of those seven states, which I consider to be a restatement of the law in our American jurisprudence.
This ordinance may be such that would receive the approval of a Soviet or Fascist regime; but its Alpha and Omega amounts to a regimentation of both labor and industry. Why are the closing hours at six o'clock p. m. or on Thursday afternoons so sacrosanct? The public welfare is the welfare of the people. They best know when they desire such service and the trade can be depended upon to render that service at the hours the public demands it. Thousands of neighborhood shops exist in Ohio communities having many more thousands of customers employed in daytime work in offices, shops and factories, customers who have little or no opportunity of seeking a barber's service before six p. m.; nor have they such opportunity before eight a. m., when they must be at work or on their way thereto. Shall that portion of the public be deprived of their liberty of action by the ipse dixit of some municipal council? I concur in the conclusions reached by the courts named in this dissent and hold that the ordinance in question is arbitrary, unreasonable and places an undue restraint upon the personal liberties of the public and upon those engaged in the pursuit of a lawful business.
The majority decision is contrary to well-established principle and the opinion supporting it is against the overwhelming weight of authority. The ordinance involved is one dealing with the occupation of barbering, which is a lawful trade or business. The sole question presented by the demurrer is the validity of Section 10 of the ordinance, which makes it an offense to operate a barber shop at any time other than the precise portion of the day fixed in the ordinance. It seeks to impose a penal restriction not upon the number of hours per day one may engage in the employment or practice of barbering, but prescribes the precise hours during which such business may be conducted and makes it unlawful to operate or conduct or maintain any barber shop in the city at any time other than the particular periods designated.
If we look to the further provisions of the ordinance, we find no requirements as to sanitation and nothing therein making it in any sense a sanitary measure. If any purpose is indicated thereby other than to compel compliance with an arbitrarily prescribed uniform period of the day during which the occupation or practice or trade or business of barbering may be carried on in the city, it is the exaction of a fee for a license in addition to that now required by statute.
If, however, this ordinance may be regarded as a regulation of the hours of labor, it is unauthorized for the reason that that power has been specifically conferred upon and limited to the law-making power of the state by the provisions of Section 34 of Article II of the state Constitution.
The concession in the majority opinion that "the word 'laws' does not embrace municipal ordinances and therefore this provision defines the legislative power of the General Assembly of Ohio only" is decisive of this case and requires the reversal of the judgment of the Court of Appeals.