State Ex Rel. Fulton v. Ives , 123 Fla. 401 ( 1936 )

Andrew Fulton is a citizen of Florida and resides in the County of Duval. He is a barber by trade and has been engaged in that occupation for the last eighteen years.

Since the year 1931, during which Chapter 14650, Laws of Florida, was enacted, he has obtained a certificate of registration as a registered barber issued by the Board of Barber Examiners, which was created by the Act mentioned above.

Fulton's last certificate, which was issued in 1934, expired in August of 1935. In July of the last mentioned year he applied to the Board of Barber Examiners for a renewal or the issuing of another certificate of registration. The fee tendered by him as required by the law was accepted by the Board and in all other respects he complied with the requirements of the statute mentioned above. The Board of Barber Examiners, however, refused to issue a certificate of registration to Fulton for the year ending August, 1936, because of the applicant's alleged "failure to live up to the prices as set" by the Board of Barber Examiners in July, 1935, by an order "purporting to fix a minimum price for all work usually performed by Relator as a registered and practicing barber in the City of Jacksonville, Florida."

Fulton thereupon in August, 1935, applied for and obtained from this Court an alternative writ of mandamus commanding the named respondents Ives, Spence and Johnson, as members of the State Board of Barber Examiners to forthwith issue to Fulton a certificate of registration as a registered barber for the period ending August 1, 1936, or that they appear before this Court and show cause why they refuse to do so.

Chapter 14650, Acts of 1931, of which mention is above made, is an Act with a tolerably long title — "Tolerably," because not unsupportable by the constitutional limitations restricting the titles of an Act to a brief expression of its subject. Section 16, Art. III, Const.

The purpose of the Act is to regulate the "Practice of Barbering" in Florida, to create a Board of Barber Examiners with certain powers and prescribing penalties for the violation of the "Provisions" of the Act and "Regulations" thereunder. Section 4151 (24), 4151 (48), Cum. Supp., 1934 C.G.L., 1927.

The law was considered by this Court in Dilustro v. Penton,106 Fla. 198, 142 South. Rep. 898. In that case the Act was sustained against an attack that it contained provisions unlawfully discriminatory in character between persons engaged in the same class of business or occupation. It was held that the exemptions of persons engaged in certain occupations from the provisions of the Act and which the petitioner claimed constituted the unlawful discriminations were not so "unreasonable or unnatural as to make the application so capricious and arbitrary as to violate the principles of law" relating to the guaranty of equal protection.

In 1935 the Legislature enacted Chapter 16799 (Senate Bill 749) entitled "An ACT to regulate and control the barber industry and for this purpose to further enlarge the present powers of the State Board of Barber Examiners of Florida, defining their additional jurisdiction, powers, and duties during the existing emergency and to declare an emergency exists, and providing penalty thereof." It was approved June 7, 1935, by the Governor.

Section 1 declares the Act to be enacted in the exercise of the police power, and its purpose to be to protect the public welfare, public health, public safety and public morals. The section declares that "unfair, unjust, destructive, demoralizing, and uneconomic trading practices have been and are now being carried on in the operation of barber shops in the State of Florida"; that unfair competition exists between individual barbers to the extent that prices have been reduced by such competition to the point "where it is impossible for an average barber, although working regularly, to support and maintain in a modest manner, a family"; that such condition constitutes a menace to the health, welfare and reasonable comfort of the inhabitants of the State.

The section declares that, in order to "protect the well-being of our citizens and to protect the health of the families and other dependents of the barbers," and the respective patrons of the barbers and promote the public welfare, and due to the "personal touch and contacts manifested and exercised in the barber business, and the subsequent necessity for well-nourished, strong and healthy persons to engage in the barber business," the "barber profession" is declared to be a "business affecting the public health, public interest, public safety and public morals."

The section declares the "present acute economic emergency" to be in part the "consequence of a severe and increasing disparity between the prices of barber work and other conditions, which disparity has largely destroyed the purchasing power of barbers for industrial and sanitary products so necessary in the operation of their business." It is declared that such disparity has "broken down the orderly performing of the duties of the barbering profession and has seriously impaired and injured the families and other dependents of the barbers of the State." It is stated that such condition is due to the "financial inability of the members of the barbering profession to supply their families and other dependents with the reasonable necessities of life.

It is declared that the danger to the public health, safety, welfare and morals is immediate and impending; the "necessity urgent, and such as will not admit of delay in public supervision and control in accord with the proper standards of the barber profession." Such are declared by the Act to be the facts of legislative determination.

Then follows seventeen more sections of the Act. Section 2 refers to Chapter 14650, supra, and adopts the definition of terms used in that Act. Section 3 empowers the Barber Board to act as a control Board for administering the law and enforcing it. Section 4 invests the Board with general powers making it an instrumentality of the State for attaining the ends recited in the legislative finding, empowers the Board to regulate the "barbering industry," to investigate and regulate as the emergency requires "all matters pertaining to the proper supervision and control for the work of barbers"; to "subpoena barbers, their records, books and accounts and any other person from whom such information may be desired to carry out the purpose and intent of this Act"; to issue commissions, to take depositions of witnesses absent from the State. It empowers any member of the Board or designated employee to issue subpoenas and administer oaths to witnesses. It undertakes to vest the Board with power to enforce obedience to subpoenas issued by it as the same may be enforced by a "judge, arbitrator, referee, or other person duly authorized under the laws of the State," who is empowered to issue such writs, and the Board may act as "mediator and arbitrator" in any controversy that may arise between barbers.

Section 5 empowers the Board to "adopt and enforce all rules and orders necessary to carry out the provisions of this Act." Section 6 provides for investigations by the Board, and for the method of procedure. Section 7 empowers any member of the Board, or designated employee, to enter any place where "barbering is being carried on" and to inspect books, papers and records for the purpose of ascertaining facts.

Section 8 makes any violation of the provisions of the Act or of any rule or order of the Board lawfully made a misdemeanor and punishable by a fine of five hundred dollars, or by imprisonment not exceeding one year, and each day during which the violation of such order continues is deemed to be a separate offense. The section provides that the Board may apply to any Circuit Court for "relief by injunction" to protect the public interest "without being compelled to allege or prove that an adequate remedy at law does not exist."

Section 9 empowers the Board to decline to grant licenses and to suspend or revoke licenses already granted. It also provides that "No Court other than the Supreme Court shall have power to review, suspend or delay any order made by the Board, with respect to the granting of a license, refusal to grant a license, the granting of a conditioned and limited license, or the suspension or revocation of a license, or enjoin, restrain or interfere with the Board or any member thereof, in the performance of official duties with respect thereto."

Section 10 empowers the Board to require licensees to keep certain records. Section 11 requires each licensee to make reports to the Board as it may require from time to time. Section 12 empowers the Board to ascertain by investigation and proofs "as the emergency permits and requires, what price for barber work in the several counties of the State of Florida, and under varying conditions, will best protect the barber industry of the State and insure a sufficient living wage to the average barber of the State of Florida and his lawful dependents, in the respect(ive) counties of the State of Florida, in which the respective shops are being operated." The Board is empowered to consider "all conditions affecting the barber profession of the State of Florida, including income necessary to reasonably maintain the family of the average barber in the State" and County of his residence. The Board is required, after making "such investigation" to "fix by official order, the minimum price for all work usually performed in a barber shop." The Act declares that the "public emergency requires that the barbers receive a fair return for their work." To that end the Board is empowered either upon its own initiative or upon the complaint of a representative group of barbers, to determine that the minimum prices for service which were fixed "are insufficient to answer the emergency in that the prices so fixed are not providing the average barber with a sufficient income to properly maintain and nourish his family," in which case the minimum price for service may be raised throughout the State or in any county.

Section 13 provided that no member of the Board shall divulge any information acquired by him in his investigations "except as may be required to carry out the purposes of this Act." A punishment is prescribed for violating the provisions of that section.

Section 14 contains the so-called partial invalidity feature of the Act. It is unique in that it not only seeks to continue in force all parts of the Act not declared by a court of competent jurisdiction to be invalid but expressly limits the scope of the judgment to the "clause, sentence, paragraph or part thereof, directly involved in the controversy in which such judgment shall have been rendered."

Section 15 declares the period of emergency, which in the legislative wisdom made the Act expedient or necessary, shall expire June 30, 1937, at which time all powers attempted to be granted by the Act to the Board shall cease and determine.

Section 16 provides that the expenses incident to the "administration of this Act" shall be paid from the funds of the Board.

Section 17 repeals all laws and parts of laws in conflict with the Act, and Section 18 fixed the time when the Act became effective.

On September 30, 1935, the respondents made a return to the alternative writ in which they sought to justify their refusal to issue the certificate of registration to the relator under the provisions of the Act, a synopsis of which has been given.

The return, which consists largely of an argument in attempted justification of that extraordinary bit of legislative activity and establishment of the barber service as among the professional activities which require State regulation through an administrative board with exceptionally broad and extensive powers in the interest of public welfare, health, safety and morals, as the statute declares, contains averments of the Board's activities in the examination of witnesses and investigation of economic conditions prevailing among the barbers in the State, and hygienic state of the barber shops and morale of the barber group, as well as the amount of remuneration necessary to maintain the barbers as family men.

The result of those investigations, which were made in twenty-four "different and strategic points" in the State, so it is averred, led the Board to the conclusion that there were about 3700 active registered barbers in the State; that the "journeyman" barber received from eight to twelve dollars per week for his work, while the "master" barber received about twenty-five per cent. more for his labor and investment; that such remuneration received by the members of the profession, which presumably includes journeyman members, is inadequate to afford "such members a subsistence for themselves and their families and to provide competent service and sanitary conditions for the furnishing of proper work to the public"; that the profession was greatly demoralized, due to "price cutting and cut-throat competition incident to a desire to destroy the weaker members of the profession on the part of the stronger members and the effort of the weaker members to survive the severity of the general economic depression; that most barber shops were without adequate equipment and without adequate sanitary safeguards; "that the members of the profession generally were required to work too long hours, endangering their health and affecting their competency and reliability in serving the public."

The answer then avers that the Board after such investigation "entered and promulgated" its order "fixing minimum prices to be observed by the barbering profession in the County of Duval," which Fulton, the relator, "declined to observe and comply with."

There was a motion for a peremptory writ notwithstanding the return.

The validity of the Act, Chapter 16799, supra, is thus presented because, according to the averments of the return, the respondents in fixing minimum prices to be charged by barbers in Duval County acted in all things within the letter and, as may be said, the spirit of the enactment.

Regardless of the controversy about the nature or character of the vocation of one who for a price renders personal service as a barber to all who demand it and pay for it, whether is is a business, industry, trade, craft or profession, the question is whether the vocation is affected by a public interest, is a paramount industry and the manner of rendering the service largely affects the health, morals and prosperity of the people so that it is within the power of the Legislature to regulate and regiment the business to the extent that it has attempted in this Act, even though an economic depression exists and barbers in some instances charge a sum for their services too small to adequately support themselves, their families, and supply their shops with improved implements with which to work, cleaned and sterilized razors, combs, brushes, electrical rubber instruments for massaging, towels and unharmful lotions and hair dressings, as well as sanitary shops.

The Fourteenth Amendment to the Constitution of the United States forbids the States to make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.

The right to make contracts of any kind, so long as no fraud or deception is practiced and the contracts are legal in all respects, is an element of civil liberty possessed by all persons who are sui juris. See Continental Casualty Company v. Bows,72 Fla. 17, 72 South. Rep. 278; Ga. Home Ins. Co. v. Hoskins,71 Fla. 282, 71 South. Rep. 285; Sou. Home Ins. Co. v. Putnal,57 Fla. 199, 49 South. Rep. 922.

It is both a liberty and property right and is within the protection of the guaranties against the taking of liberty or property without due process of law. German Alliance Ins. Co. v. Barnes, 189 Fed. Rep. 769; Lindsley v. Patterson (Mo.), 177 S.W. Rep. 826, L.R.A. 1915F 680.

It follows, therefore, that neither the Federal nor State governments may impose any arbitrary or unreasonable restraint on the freedom of contract.

"That freedom, however, is not an absolute, but a qualified right and is therefore subject to reasonable restraint in the interest of the public welfare." Refer to Schmidinger v. Chicago,226 U.S. 578, 33 Sup. Ct. Rep. 182, 57 L. Ed. 364; Rosenthal v. New York, 226 U.S. 260, 35 Sup. Ct. Rep. 27, 57 L. Ed. 212; Selover, Bates Co. v. Walsh, 226 U.S. 112, 33 Sup. Ct. Rep. 69, 57 L. Ed. 146; A.C.L.R.R. Co. v. Beazley, 54 Fla. 311, 45 South. Rep. 761; Twin City Pipe Line Co. v. Harding Glass Co.,283 U.S. 353, 51 Sup. Ct. Rep. 476, 75 L. Ed. 1112; Scotch Mfg. Co. v. Carr, 53 Fla. 480, 43 South. Rep. 427; Clay v. Girdner, 103 Fla. 135, 138 South. Rep. 490.

The right to contract is a most valuable right among those recognized by the law. State v. Lehman, 100 Fla. 1313, 131 South. Rep. 533.

Freedom of contract is the general rule; restraint is the exception and when it is exercised to place limitations upon the right to contract the power when exercised must not be arbitrary or unreasonable and it can be justified only by exceptional circumstances. Ex Parte Messer, 87 Fla. 92, 99 South. Rep. 330.

Included in the right of personal liberty and the right to private property is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment by which labor and other services are exchanged for money or other forms of property. If that right be stricken down or arbitrarily interfered with there is a substantial impairment of liberty in the long established constitutional sense. Such is the language of the Supreme Court of the United States, speaking through Mr. Justice PITNEY in the case of Coppage v. State of Kansas,236 U.S. 1, 59 L. Ed. 441, 35 Sup. Ct. Rep. 250.

While it is undoubtedly true that it is within the power of government to restrain some individuals from all contracts and all individuals from some contracts, the truth must not be ignored that a citizen's right to pursue any lawful business is "property" and the right to contract for personal services as a means for the acquisition of property is one of the privileges of a citizen of the United States of which he cannot be deprived without invading his right to liberty. See State, ex rel. Davis, v. Ross, 97 Fla. 710, 122 South. Rep. 225; Paramount Enterprises v. Mitchell, 104 Fla. 407, 140 South. Rep. 328.

It is within the power of the Legislature to regulate some occupations and not regulate others, but private rights secured by the Constitution must not be invaded and the regulations must operate with substantial fairness upon all persons similarly situated. That doctrine was upheld in the case of Noble v. State,68 Fla. 1, 66 South. Rep. 153. See also Rast v. Van Deman Lewis Co., 240 U.S. 342, 36 Sup. Ct. Rep. 370, 60 L. Ed. 679. The last cited case being one involving the validity of Chapter 6431, Laws of Florida 1913, providing for an additional license upon merchants offering with merchandise bargained or sold coupons or profit-sharing certificates.

And in the case of State, ex rel. Garrison, v. Reeve, 104 Fla. 195, 139 South. Rep. 817, we held that an ordinance of the City of Miami undertaking to regulate the conduct of a "beauty shop" in the city was within the police power as exercised by a city vested with general police powers. In that case Mr. Chief Justice BUFORD, speaking for the Court, said in substance that the "barbers trade and that of the beauty culturist are close akin." The learned Justice could find no case where any court in the country had held that the Legislature was without authority to enact a law regulating the trade, science or profession of barber.

The case of People v. Logan, 284 Ill. 83, 119 N.E. Rep. 913, was cited as authority for the proposition that because 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. * * * 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." (Italics supplied.)

That authority may be sufficient to justify the enactment of Chapter 14650, Laws of Florida, 1931, defining the practice of barbering and requiring a license or certificate of registration as a condition precedent to practicing the trade and creating the Board of Barber Examiners, etc.

Whether the additional powers attempted to be conferred upon the Board of Barber Examiners by Chapter 16799, supra, Acts 1935, is a valid exercise of the police power is a different matter.

There is no controversy here, nor is there any doubt about the proposition, that the liberty of contract is not absolute and universal; that it is subject to the police power of the State to place restrictions upon it in the interests of the general welfare. There is no need to cite authority other than our own decisions upon this proposition. Everglades Sugar Land Co. v. Bryan, 81 Fla. 75, 87 South. Rep. 58; State, ex rel. Davis, v. Rose, supra; Whitaker v. Parsons, 80 Fla. 352, 86 South. Rep. 247.

Mr. Justice Whitfield, speaking for the Court in the case last cited, embodied the doctrine in a very few words as follows: "Individual rights to life, liberty and property are in law acquired and enjoyed, subject to the exercise of the regulating powers of government; and such rights are not protected by the Constitution from the due exercise of such governing powers. The purpose of constitutional government is to secure individual rights subject to valid regulations enacted in the interest of the public good."

It is also true that the courts are the final judges as to what are proper subjects of the police power and the lawmaking power cannot arbitrarily make that a subject of its exercise which from its nature is not one. City of Jacksonville v. Ledwith, 26 Fla. 163, 7 South. Rep. 885, 23 Am. St. Rep. 558, 9 L.R.A. 69.

It has been said that the police power of the State embraces its whole internal affairs and its civil and criminal polity. It extends to the protection of the lives, health and property of the citizens and to the preservation of good order and public morals. Prigg v. Pennsylvania, 16 Pet. (U.S.) 539, 10 L. Ed. 1060; Boston Beer Co. v. Mass., 97 U.S. 32, 7 Otto 25, 24 L. Ed. 989; Slaughter-House Cases, 16 Wall. (U.S.) 36, 21 L. Ed. 394.

The police power is broad and extensive. It may be exercised for preserving the public health, safety, morals or general welfare and its regulations may reasonably limit the enjoyment of personal liberty including the right of making contracts. The Supreme Court of the United States has invariably so held. See Holden v. Hardy, 169 U.S. 366. 18 Sup. Ct. Rep. 383, 42 L. Ed. 780; Chicago B. Q.R. Co. v. McGuire, 219 U.S. 549, 31 Sup. Ct. Rep. 259, 55 L. Ed. 328; Gibbons v. Ogden, 9 Wheat 1; 6 L. Ed. 23; License Cases, 5 How. 504, 12 L. Ed. 256; New York v. Miln, 11 Pet. 102, 9 L. Ed. 648.

Mr. Justice ROBERTS, in the case of Nebbia v. New York,291 U.S. 502, 54 Sup. Ct. Rep. 505, 78 L. Ed. 840, quoted the language of Mr. Justice BARBOUR in New York v. Niln, supra, to the effect that "it is not only the right, but the bounden and solemn duty of a state, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends."

In all cases, however, in which that wholesome constitutional doctrine has been announced it must not in the interest of constitutional liberty be forgotten that the regulations adopted in the exercise of the great power must be deemed to be fairly necessary to secure some object directly affecting the public welfare. The Fourteenth Amendment debars the States from striking down personal rights, which, of course, include the right to make contracts for personal service, except as may be incidentally necessary for the accomplishment of some other paramount object and one that concerns the public welfare.

The mere restriction of liberty or of property rights cannot of itself be denominated "public welfare" and treated as a legitimate object of the police power, for such restriction is the very thing that is inhibited by the Amendment. The right to follow any lawful vocation and to make contracts is as completely within the protection of the Constitution as the right to hold property free from unwarranted seizure, or the liberty to go when and where one wills. One of the ways of obtaining property is by contract. The right, therefore, to contract cannot be infringed by the Legislature without violating the letter and spirit of the Constitution. Every citizen is protected in his right to work where and for whom he will. Such were the views of the Supreme Court of the United States expressed in the Coppage case, supra.

Whenever the power is exercised by the Legislature to restrain some individuals from all contracts it must be in cases where the subject matter of such contracts is reasonably deemed to be unlawful or inconsistent with the reasonable regulations of the subject under the police power, or contrary to public policy. Certain kinds of business may be prohibited and the right to pursue a calling may be conditioned.

Mr. Justice ROBERTS in the Nebbia case, supra, in a footnote to his opinion, cites a number of such vocations. In that case contracts for the sale of milk by local dealers were restricted by limitations upon the price to be charged and the regulation was upheld. The production of milk in the State of New York was deemed to be of such paramount importance that the public welfare and prosperity of the State in a very large and real sense depended upon it. The power to regulate it, a private business, could be invoked only under the special circumstances in which the property or general health of the entire State in a large measure depended upon it. See New State Ice Co. v. Liebmann,285 U.S. 262, 52 Sup. Ct. 371, 96 L. Ed. 747.

The Legislature cannot decide the question of emergency and regulation free from judicial review. The legitimacy of the conclusions drawn from the facts is a matter for consideration by the court.

Chapter 16799, supra, seeks to place a limitation upon the judicial power of this State by prohibiting any court other than the Supreme Court from reviewing, suspending or delaying any order made by a Barber Board with respect to the granting or refusal to grant a license or the suspension or revocation of a license to a barber or to enjoin or restrain or interfere with the Board or any member thereof in the performance of official duties.

That extraordinary clause would deprive the Circuit Courts of this State of their original jurisdiction and convert the Supreme Court into a court of original jurisdiction instead of a court of appellate jurisdiction in violation of Article V, Sec. 5 and 11 of the Constitution of Florida.

The declaration by the Legislature in the first section of the Act that the public health, safety, welfare and morals would be imperiled by a lack of supervision and regulation of the barber trade to the extent of prescribing the prices to be fixed for barber service by those who have obtained or are qualified under the law to engage in such business is not persuasive nor of helpful significance. The method of reasoning apparently adopted consists of piling one supposition upon another and invoking the arbitrary dictum of legislative expressions as the only test of the truth of them. The assumptions that the barber trade, business, profession or industry variously referred to in the Act is a chief industry of the State of Florida so that its general welfare and prosperity depend upon it in a very large and real sense is a postulate unfounded in history, fact or experience. It is so egregiously erroneous that its illusion may be said to be a matter of common knowledge.

It is unnecessary here to make any invidious comparisons but it would be an easy matter to enumerate fifty or more vocations which might with equal suitableness be said to constitute a paramount industry in this State, the regimentation and regulation of which are necessary to the public welfare, health or morals.

Nor may it be said that perfect consistency of declaration and unity and cogency of thought exist between the declaration in the first section of the Act that the "present acute economic emergency being in part the consequence of a severe and increasing disparity between the prices of barber work and other commodities" and the averments in the return that the "profession in the State was grossly demoralized, due to the price cutting and cut-throat competition incident to a desire to destroy the weaker members of the profession on the part of the stronger members and the effort of the weaker members to survive the severity of the general economic depression."

It may be true that general economic conditions have produced unsatisfactory industrial conditions, a large number of unemployables as distinguished from unemployed, and consequent reduction in the price of commodities including personal service, one large class of which is the so-called "white collar" group, in which the barber may be placed not inappropriately, but regimentation of the various industries may not for that reason be deemed essential to the public welfare and health or morals, to secure which the price of such commodities should by legislative fiat be increased and thus put the service to be rendered still further beyond the means of persons in the unemployable class, who may still desire to be shaved and hair-dressed.

Nor does unfair competition in the barber trade by some members of it who desire to expel others from it produce such an economic condition that the police power may be invoked to place in the hands of a small committee the power to interfere with the liberty of contract in relation to a personal service which may not be said to constitute a paramount industry of the State.

Although, by most liberal and perhaps loose reasoning, we have held that the barber trade is in a measure affected by a public interest, that it bears such relation to the public as to warrant its inclusion in the category of businesses charged with a public use, so that reasonable regulations may be prescribed for obtaining permits to engage in it as in the business or profession of the lawyer, doctor, chiropractor, osteopathist, dentist, professional nurse, optometrist or surgeon, beauty culturist, public accountant and others, yet this Court has never approved a regulation which has the effect of denying or unreasonably curtailing the common right to engage in a lawful private business or trade nor can such unreasonable regulation be upheld in view of the Fourteenth Amendment to the Federal Constitution, nor the first Section of the Bill of Rights of the Florida Constitution.

It may be admitted that the barber trade in some respects bears an analogy to the profession of law, medicine, dentistry, osteopathy and other occupations which require on the part of the practitioner a degree of scientific training, knowledge of hygiene and manual skill necessary to efficient service, yet such professions may not, under the guise of protecting the public, be arbitrarily interfered with by the imposition of unreasonable and unnecessary restrictions. To impose such restrictions as are attempted by the Act in question would be to impose limitations upon certain essentials of liberty, particularly that of contract, with which the State is not entitled to dispense under the form of government which we now enjoy.

The principle underlying the Act is a species of socialistic leveling of merit or capacity in the practitioner wholly inconsistent with the American ideal of encouragement to the worthy and industrious, by placing a handicap upon the proficient artist in the trade who would be in a measure coerced by the minimum price fixed for barber service which may be charged by one who under the provisions of Chapter 14650, supra, is equally qualified to practice the trade, to charge a price in reality inadequate to compensate him reasonably for the character of service he is capable of rendering. On the other hand the minimum price fixed by the Board actually interferes with the liberty of the efficient and highly skilled barber to contract with his patron for the rendition of a much needed service in the matter of beard cutting, hair trimming and facial massage.

So the question is reduced to the narrow limitations of the State-wide necessity of fixing a minimum price for barber service in the interest of public health and welfare or the preservation of a trade which may be said to constitute a paramount industry of the State. We perceive no elements in the trade which make it an industry of paramount importance to the State peculiarly different from those contained in other like businesses where the element of personal service is sought from skillful practitioners.

The registered barber may by ignoring the order of the Board under Chapter 16789, supra, be convicted of a crime for selling his own service because according to the order of the Board such act creates a temporary emergency in that the service is rendered too cheaply. Such a doctrine involves pernicious consequences and as was said in Ex Parte Milligan, 4 Wall. (U.S.) 2, 18 L. Ed. 281, to hold that any of the provisions of the Constitution may be suspended during a so-called emergency announces a doctrine leading directly to despotism. If liberty or property or right to contract may be struck down because in the view of a committee of three constituting a Board of Barbers, prices charged by some barbers in that trade produce difficult circumstances for others in the trade and their families, then constitutional guaranties may be set at naught by less than the "voices of an impatient majority"; in fact by the fiat of a committee which may be motivated not by consideration of the general welfare, but possibly by the desire to set up a kind of monopoly in the barber trade.

The provisions of Section 12 of the Act not only empower the Board to fix minimum prices in different "strategic" points in the State, but the Board may "vary or refix the minimum prices" throughout the State or in any county whenever the Board decides the prices fixed "are insufficient to answer the emergency in that the prices so fixed are not providing the average barber with a sufficient income to properly maintain and nourish his family."

It is inconceivable that such power should be attempted to be conferred upon an administrative body. Its order becomes a local law for the punishment of a so-called misdemeanor, which by the Committee's fiat may be an offense in one County but not in another, and may be an offense today and not tomorrow according to the action of the Board.

The obvious purpose of the Act was to enable the Board of Barber Examiners to set up a code for the government of the trade without any approval by any department and without setting up any standards aside from the opinion of the Board as to what is necessary to secure to the "average barber" and his family suitable nourishment and maintenance. The analogy is almost perfect with the case of Schechter v. U.S. 79 L. Ed. 1570,295 U.S. 495. See also State v. Fowler, 94 Fla. 752, 114 South. Rep. 435; State v. Duval County, 76 Fla. 180, 79 South. Rep. 692, relating to the delegation of legislative power.

No emergency exists to justify such an extraordinary bit of legislation even measured by the alleged findings of fact by the legislative department and recited in the first section of the Act. The conclusion attempted to be reached that the legislation is justified in the interest of public welfare, health and morals has been shown to rest upon one supposition piled upon another which coincides with no known facts or other probable hypotheses. Such a regulation could be justified only upon the fact that the barber trade is a paramount industry of the State intimately connected with its welfare so that the State may through an agency such as the Board of Barber Examiners prescribe prices for the services to be rendered by each barber.

Upon that sort of theory the Nebbia case, supra, was decided, but the Supreme Court of the United States has many times approved the view that the State has no such power in cases of private business not so closely connected with the public welfare. See U.S. v. L. Cohen Grocery Co., 255 U.S. 81, 41 Sup. Ct. Rep. 298; Adkins v. Children's Hospital, 361 U.S. 525, 43 Sup. Ct. Rep. 394; Wolff Packing Co., v. Court of Industrial Relations, 262 U.S. 522, 43 Sup. Ct. Rep. 630; Williams v. Standard Oil Co., 278 U.S. 235, 49 Sup. Ct. Rep. 115; New State Ice Co. v. Liebmann, supra.

What this legislation undertakes is not regulation, but management, control, dictation. The Legislature may not by its fiat convert a private business into a public utility. In the language of Mr. Justice McREYNOLDS dissenting in the Nebbia case,supra, "if it be now ruled that one dedicates his property to public use whenever he embarks on an enterprise which the Legislature may think it desirable to bring under control, this is but to declare that rights guaranteed by the Constitution exist only so long as supposed public interest does not require their extinction. To adopt such a view, of course, would put an end to liberty under the Constitution.

Another supposition is that for the average barber to properly maintain and nourish himself and family according to the standards which may commend themselves to the views of the members of the Board is a matter affecting the general welfare of all the people of the State so that the invocation of the police power is essential to preserve it by securing to the favored class the necessities, comforts and conveniences essential to the Board's idea of proper maintenance and nourishment.

Still another supposition is that the demoralization of the trade is brought about by a "cut throat" practice indulged in by the "stronger members" of the profession in order to eliminate the weaker members, and by an effort on the part of the latter to meet the exigencies of the economic depression.

Reduced to its last analysis the thought underlying the Act seems to be not that the barber trade is a paramount industry affecting the general welfare, but that the prosperity of the barber class sufficient to maintain the average barber and his family "properly" is a sufficient reason for the exercise by the State of the power of direction, control and management of the barber business in the interest of health, and morals. And further, that the liberty of contract enjoyed by every barber engaged in his vocation is used by him or likely to be so used by him as to imperil the business and jeopardize the public health, morals and general welfare.

We find in none of the cases support, directly or indirectly, of such a notion of democratic government or constitutional liberty.

We are therefore of the opinion that the return is insufficient and that the peremptory writ of mandamus should be issued.

Peremptory writ granted.

WHITFIELD, C.J., and DAVIS, J., concur.

BROWN, J., concurs specially.

TERRELL and BUFORD, J.J., dissent.