Opinion
No. 28387
Decided February 19, 1941.
Constitutional law — Regulation of barbering within police power — Examination, supervision and control for public health or welfare — Section 1081-1 et seq., General Code — Prohibiting advertising prices of barber services — Section 1081-17(3), General Code, unconstitutional — Interference with freedom of action, speech and property rights — State Board of Barber Examiners — Jurisdiction or venue of action against board — Sections 1081-18 and 11271, General Code.
APPEAL from the Court of Appeals of Hamilton county.
In July of 1939 Estel Jones, plaintiff, appellee herein, owned and operated a barber shop in the city of Cincinnati, possessing a certificate of registration issued to him by the state Board of Barber Examiners. He advertised on the window of his shop, "Haircutting twenty-five cents."
Section 1081-17(3), General Code, being a part of the act establishing the state Board of Barber Examiners, prohibits, among other things, the advertising of prices of barber services in any form whatsoever, under penalty of suspension or revocation of the offender's certificate of registration.
The state Board of Barber Examiners took cognizance of the plaintiff's advertisement, and at a hearing held on July 10, 1939, suspended his certificate for 60 days.
Plaintiff being dissatisfied with such decision, exercised his right of appeal as provided by Section 1081-18, General Code, filing his petition in the Court of Common Pleas of Hamilton county. An answer was interposed by the defendants as members of the Board of Barber Examiners, and the issue was made upon a demurrer to the answer. Such demurrer was sustained by the trial court and, the defendants not desiring to plead further, final judgment was entered in favor of the plaintiff. On appeal, the Court of Appeals affirmed that judgment, both lower courts taking the position that the part of the statute challenged is unconstitutional.
An appeal as of right brings the case before this court.
Mr. George Weller, for appellee.
Mr. Thomas J. Herbert, attorney general, Mr. Fred W. Edmonston and Mr. Richard A. Morris, for appellants.
Defendants raise no question as to jurisdiction or venue, and it would seem plain from a perusal of Section 1081-18, General Code, that an action against the state Board of Barber Examiners to set aside, vacate or modify its decision need not necessarily be brought in the Court of Common Pleas of Franklin county. Section 1081-18, General Code, as a later specific enactment, creates an exception to Section 11271, General Code.
The trade of barbering, operating as it does directly on the person of the customer, affects the health, comfort and safety of the public and may be regulated within reasonable limits by the legislative branch of the government under that power known as the police power, "conceded to reside in the people's representatives, which is rightfully exercised by the regulation of the use of private property, or so restraining personal action, as to secure, or tend to the comfort, health, or protection of the community." State v. Gardner, 58 Ohio St. 599, 606, 51 N.E. 136, 65 Am. St. Rep., 785, 41 L.R.A., 689. See, also, 8 Ohio Jurisprudence, 334, Section 229; 11 American Jurisprudence, 972, Section 247.
Therefore, those engaged in the occupation of barbering or those desiring to pursue that business may be examined as to their competency and fitness and are subject to supervision and control in the matters of cleanliness, sanitation, conduct, habits, infectious and contagious diseases, and things of that kind.
The General Assembly of Ohio has spoken on the subject by enacting Section 1081-1 et seq., General Code, and has created the state Board of Barber Examiners to execute and administer such laws.
However, legislation of this character must bear some discernible relationship to the public health or welfare, and the General Assembly cannot under the guise of its police power impose unreasonable, captious or arbitrary rules, having no recognizable connection therewith.
How the mere advertising of the price of haircuts as done by the plaintiff could in any wise affect public health or welfare is difficult to understand.
If this legislation, absolutely prohibiting the advertising of prices of barber services, were to be upheld, it would likewise be necessary to uphold legislation prohibiting the vendors of groceries, meats or other commodities from advertising prices thereof in any manner, the unreasonableness of which is at once apparent.
This court is unanimously of the opinion that the particular legislation complained of in this case unduly interferes with the constitutional prerogatives of plaintiff as to freedom of action, speech and property rights. The judgment of the Court of Appeals is accordingly affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART, ZIMMERMAN AND BETTMAN, JJ., concur.