Summary
holding invalid ordinance limiting and fixing hours during which barber shop may remain open
Summary of this case from Benjamin v. ColumbusOpinion
No. 29230
Decided June 2, 1943.
Constitutional law — Municipal corporations — Local police, sanitary or other similar regulations — Section 3, Article XVIII, Constitution — Ordinances must bear substantial relation to health, safety, morals or general welfare — Ordinance fixing opening and closing hours for barber shops, unconstitutional.
1. Section 3, Article XVIII of the Ohio Constitution, grants authority to municipalities to adopt and enforce within their limits such local police regulations as are not in conflict with general laws, A municipal ordinance passed under such authority, to be valid, must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the health, safety, morals or general welfare of the public.
2. A municipal ordinance limiting and fixing the hours during which a barber shop may remain open for business with the public is not a valid exercise of the police power and is in contravention of the provisions of the Ohio Constitution. ( Wilson v. City of Zanesville, 130 Ohio St. 286, overruled.)
APPEAL from the Court of Appeals of Hamilton county.
Arthur Correll, defendant, appellant herein, was arrested on January 31, 1942, charged with the violation of Section 523-1 ( a), Code of Ordinances of the city of Cincinnati.
The ordinance reads as follows:
"Section 523-1. It shall be unlawful for the owner of any barber shop or for any agent or employee of such owner to permit such barber shop to be open for the business of barbering for revenue, pay, free, or otherwise, on Sundays, New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day or at any times other than the following:
"( a) From 8:00 o'clock a. m. to 7:00 o'clock p. m. on Mondays, Tuesdays, Wednesdays, Thursdays and Fridays, when they do not precede any of the aforementioned holidays:
"( b) From 8:00 o'clock a. m. to 8:00 o'clock p. m. on Saturdays and on any other week day when such week day immediately precede any of the aforementioned holidays."
The specific charge made in the affidavit is the violation of subsection ( a) of the ordinance.
A demurrer was filed to the affidavit by defendant upon the ground that the ordinance "is unconstitutional and violates the Constitution of the state of Ohio and the United States."
The court overruled the demurrer and upon trial the defendant was found guilty as charged and sentenced to pay a fine of $15 and costs. Appeal upon questions of law was taken to the Court of Appeals of the First Appellate District where the judgment was affirmed upon the authority of Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N.E. 187. The case is here upon appeal as of right.
Mr. John D. Ellis, city solicitor, Mr. Ed. F. Alexander and Mr. Robert J. Paul, for appellee.
Mr. George Welter, for appellant.
The single question presented by this record is the constitutionality of an ordinance, Section 523-1, Code of Ordinances of the city of Cincinnati, making it unlawful to permit barber shops to be open for business during hours other than specified therein.
The city of Cincinnati is a home rule city governed by a charter duly adopted in accordance with the provisions of Section 7, Article XVIII of the Ohio Constitution.
Section 34, Article II of the Ohio Constitution reads as follows:
"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 employees; and no other provision of the Constitution shall impair or limit this power."
The word "laws" as used in this section does not embrace municipal ordinances, but defines the legislative power of the General Assembly only. Village of Brewster v. Hill, 128 Ohio St. 354, 191 N.E. 366; Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N.E. 187.
This ordinance, passed by municipal authority, cannot be sustained under that provision of the Constitution.
This leaves the question of whether the ordinance can be sustained as a valid exercise of the police power.
In the case of Wilson v. City of Zanesville, supra, this court considered an ordinance passed by the city of Zanesville which in all essential respects is identical with the ordinance here in question. A majority of the court reached the conclusion that the ordinance was a valid exercise of the police power not in conflict with constitutional limitations or general laws.
There are two strong dissenting opinions in that case.
We have concluded to re-examine this question.
The Constitution must be read and construed in its. entirety so as to harmonize and give force and effect to all its provisions.
Article I of the Constitution, known as the Bill of Rights, contains twenty sections defining rights of the people, collectively and individually, and guaranteeing the enjoyment of such rights.
Section 1, Article I provides as follows:
"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 seeking and obtaining happiness and safety."
The rights guaranteed by Article I of the Constitution are not unrestricted rights but are subject to limitation or abrogation to such extent as may be necessary to promote the health, safety, morals or general welfare of society as a whole.
Regulations which limit or abrogate these guaranties are sustained by virtue of a power inherent in government, commonly called the police power. The term police power, although generally understood and universally recognized, is somewhat hazy and ambiguous and not subject to precise or even accurate definition.
In Ohio the grant of police power to a municipality is found in Section 3, Article XVIII of the Constitution, which reads as follows:
"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."
Prior to 1912 municipal police power was derived through legislative action; since that time police power is derived from the people through the Constitution.
Regulations passed by virtue of the police power generally are limitations upon or abrogations of constitutionally gauranteed rights and such regulations, to be valid and enforceable, must conform to certain well defined and well understood standards.
From a consideration of many cases upon the subject of police power the standards to determine the validity of this class of legislation may be stated thus:
Laws or ordinances passed by virtue of the police power which limit or abrogate constitutionally guaranteed rights must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the object sought to be obtained, namely, the health, safety, morals or general welfare of the public.
The courts of this country have been extremely zealous in preventing the constitutional rights of citizens being frittered away by regulations passed by virtue of the police power.
If an enactment is referable to the police power, to be valid, the court must be able to say that it tends in some substantial degree to the prevention of offenses, or the preservation of the health, morals, safety or general welfare of the public. Therefore, if it is apparent that there is no plausible, reasonable and substantial connection between the provisions of the act and the supposed evils to be suppressed, there exists no authority for its enactment. Legislative bodies may not, under the guise of protecting the public interest, interfere with private business by imposing arbitrary, discriminatory, capricious or unreasonable restrictions upon lawful business.
We realize that the police power is elastic to meet changing conditions and changing needs, yet it cannot be used to abrogate or limit personal liberty or property rights contrary to constitutional sanction.
Before proceeding to an examination of the ordinance in question it should be observed that the business of barbering is a lawful business, and that the right to carry on such business is a property right constitutionally protected against unwarranted and arbitrary interference by legislative bodies.
We are here dealing with a penal ordinance having for its stated purpose the definition and punishment of a misdemeanor. The ordinance makes it unlawful for the owner or his agent or employee to permit a barber shop to be open for the business of barbering other than upon the days of the week and the hours of the day set forth therein and provides a penalty for its violation.
Respecting, as we do, the legislative authority of the city council and its right to determine what ordinances shall be passed, yet when an act of such body is challenged we must determine whether the act conforms to rules of fundamental law designed to curb and check the unwarranted exercise of unreasonable and arbitrary power. With these principles in mind let us consider whether this ordinance bears a real and substantial relation to the health, safety, morals or general welfare of the public.
It would be a bold man indeed who would seriously assert that the hours of the day during which a barber shop could remain open for business have any real and substantial relation to the safety, morals or general welfare of the public.
Whether the patrons of a barber shop get a hair cut, shave, shine, or any other service rendered in a barber shop between the hours of 8:00 o'clock a. m. and 8:00 o 'clock p. m. or at some other time of the day or night, in our opinion, can have no possible relation to the safety, morals or general welfare of the public.
The operation of barber shops in relation to health is controlled by state law, Sections 1081-1 to 1081-27, General Code. This ordinance cannot be considered a sanitary measure.
In determining the question of the validity of ordinances of this character we are not entering a new or unexplored field of legislation. The question here presented has been submitted to numerous courts of last resort in many states of the Union, and in twelve states kindred laws or ordinances have been declared unconstitutional and void.
See Chaires v. City of Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A. L. R., 230; State, ex rel. Newman, v. City of Laramie, 40 Wyo. 74, 275 P. 106; Ganley v. Claeys, 2 Cal.2d 266, 40 P.2d 817; Patton v. City of Bellingham, 179 Wn. 566, 38 P.2d 364, 98 A. L. R., 1076; State, ex rel. Pavlik, v. Johannes, 194 Minn. 10, 259 N.W. 537; State v. Greeson, 174 Tenn. 178, 124 S.W.2d 253; Eanes v. City of Detroit, 279 Mich. 531, 272 N.W. 896; Opinion of Justices, 300 Mass. 615, 14 N.E.2d 953; Amitrano v. Barbaro, 61 R.I. 424, 1 A.2d 109; Oklahoma City v. Johnson, 183 Okla. 430, 82 P.2d 1057; City of Huron v. Munson, 67 S.D. 88, 289 N.W. 416; and City of Louisville v. Kuhn, 284 Ky. 684, 145 S.W.2d 851.
In three or four cases courts have taken the contrary view.
In less than a year after the decision in Wilson v. City of Zanesville, supra, this court was called upon to decide the validity of an ordinance passed by the city of Toledo fixing the hours within which retail grocery stores could be open for business. Olds v. Klotz, 131 Ohio St. 447, 3 N.E.2d 371.
In that case the court was unanimous in holding the grocery store ordinance unconstitutional and void.
The writer of this opinion has carefully read both decisions several times and almost every statement made in sustaining the ordinance considered in the Zanesville case (barber shops) could be made with equal force and logic in sustaining the Toledo ordinance (grocery stores). On the other hand every statement of law made in declaring the Toledo ordinance (grocery stores) invalid would be equally applicable in declaring the Zanesville ordinance (barber shops) invalid. In my mind the distinction sought to be drawn in those two cases is more fanciful than real.
It is true, as pointed out in the Zanesville case, that the services of a barber brings him in direct contact with the persons of his patrons and careless and unsanitary practices in his trade may induce disease. It is equally true that the services of the physician, dentists, chiropractor, masseur, hairdresser, beauty parlor operator, turkish bath operator and many others bring them in the same direct contact with their patrons, but can it be true that such fact justifies the passage of ordinances making it unlawful for such persons to engage in their professions during hours other than those fixed in such ordinances?
Let us for a moment consider these two vocations, the barber's and the grocer's, upon the phase of personal contact.
The barber's hands come in contact with the persons of his patrons; the grocer's hands come in contact with the food his patrons eat. Would an unsanitary condition of a barber or a barber shop be more likely to cause disease than an unsanitary condition of a grocer or a grocery store? Obviously the answer is no.
The barber sells personal service, the grocer sells merchandise, and to hold that one selling personal service may be controlled as to business hours and that the one selling merchandise cannot be so controlled we think presents a distinction without a difference.
This ordinance accomplishes no purpose other than to fix the hours of labor of those engaged in the barber trade.
The power to pass laws fixing and regulating the hours of labor is granted by the Constitution to the General Assembly only, and municipalities are without authority to accomplish such purpose by ordinance.
We are of opinion that this ordinance bears no real and substantial relation to the health, safety, morals or general walfare of the public, that it is not a valid exercise of the police power, that the ordinance is arbitrary, discriminatory and unreasonable and upon reason and authority must be condemned.
The conclusion reached by the Court of Appeals in the instant case was fully justified by the holding in Wilson v. City of Zanesville, supra.
It is our conclusion that Wilson v. City of Zanesville, supra, should be and hereby is overruled; that the judgment of the Court of Appeals should be and hereby is reversed and final judgment entered in favor of the defendant for the reason that ordinance Section 523-1 is unconstitutional, being in contravention of the provisions of the Ohio Constitution.
Judgment reversed and final judgment for appellant.
MATTHIAS, HART and TURNER, JJ., concur.
WEYGANDT, C.J., ZIMMERMAN and WILLIAMS, JJ., dissent.
Granting there may be persuasive arguments on the other side of the question, we can discern no good or sufficient reason why the case of Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N.E. 187, decided in 1935, should now be disturbed.
In sustaining the validity of the Zanesville ordinance prescribing closing hours for barber shops, which ordinance is similar to that presently under examination, Judge Williams pointed out clearly and logically in his opinion that such ordinance was not unreasonable, had a real and substantial relation to public health, morals and safety, was a valid exercise of police power and was not violative of constitutional provisions.
On the constitutional phase, the reasoning of Mr. Justice Roberts in Nebbia v. New York, 291 U.S. 502, 78 L.Ed., 940, 54 S.Ct., 505, 89 A. L. R., 1469, representing the modern concept, was closely followed. Compare West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L.Ed., 703, 57 S.Ct., 578; National Labor Relations Bd. v. Jones Laughlin Steel Corp., 301. U.S., 1, 81 L.Ed., 893, 57 S.Ct., 615; Great Atlantic Pacific Tea Co. v. Grosjean, Supervisor of Public Accounts, 301 U.S. 412, 81 L.Ed., 1193, 57 S. Ct., 772.
In the majority opinion the cases of Wilson v. City of Zanesville, supra, and Olds v. Klotz, 131 Ohio St. 447, 3 N.E.2d 371, are treated as belonging in the same legal category. The implication is that there is no distinction between an ordinance which fixes the closing hours of barber shops and one which fixes the closing hours of grocery stores. But is this so? A barber shop is a place where services of a personal nature are performed by the skilled labor of a barber, while a grocery store is a place where food commodities are sold by a grocer.
As has been often stated, labor is not a commodity; it is human life. A real difference exists between tonsorial services and a sale of goods. This is emphasized in the Olds case, where the Wilson case is distinguished. To confound the two types of activities by considering each with reference to public health, safety and morals, leads to a confusion of thought.
Since the holding in Wilson v. City of Zanesville, supra, was announced, a large number of municipalties in this state and elsewhere recognizing the salutary effects of such a measure have enacted similar ordinances, and there have been decisions upholding their validity. See Feldman v. City of Cincinnati, 20 F. Supp., 531; Pearce v. Moffatt, Pros. Atty., 60 Idaho 370, 92 P.2d 146.
In several of the cases to the contrary, spirited dissenting opinions occur. See Eanes v. City of Detroit, 279 Mich. 531, 272 N.W. 896; Oklahoma City v. Johnson, 183 Okla. 430, 82 P.2d 1057.
This court having taken a definite and supportable position in relation to the matter at issue, we favor its retention, and therefore dissent from the judgment herein.
WEYGANDT, C.J., and WILLIAMS, J., concur in the foregoing dissenting opinion.