DocketNumber： No. 27515
Citation Numbers： 120 Neb. 302
Judges： Day, Dean, Eberly, Good, Goss, Rose, Thompson
Filed Date： 9/23/1930
Status： Precedential
Modified Date： 9/9/2022
The record in this case discloses that Emma Lane, the defendant, was convicted in the district court for Douglas county on a complaint charging that she, “on or about the 31st day of July, A. D. 1929, in the county and state aforesaid, then and there being, did then and there practice barbering without a certificate of registration as a registered barber.” Her motion for new trial was overruled, and from the sentence of the court she has appealed.
The material facts are stipulated, and it appears that the defendant for ten years last past has owned a beauty parlor and hair dressing establishment and followed the occupation of a cosmetologist in Omaha, Nebraska; that on the date alleged in the complaint she cut the hair of a young lady, one of the customers of the shop, without first obtaining a license under the barbers’ act, as outlined in chapter 154, Laws 1929; that she had applied for and obtained a license under the cosmetologists’ law, being chapter 156, Laws 1929, and as such was carrying on the practice of cosmetology on the date alleged in the com
The contentions of the defendant on this appeal are: First, that the part of the so-called barbers’ law (chapter 163, Laws 1927, as amended by chapter 154, Laws 1929) compelling cosmetologists and beauty parlor operators to take out a license under the provisions of • the barbers’ act is unconstitutional and void; second, that there is a conflict between the barbers’ law and chapter 156, Laws 1929, and that the latter, as the last legislative word, has superseded the provisions of the former; third, that the so-called barbers’ law is unreasonable and goes beyond the realm of the police power of the legislature and therefore void.
The defendant has cited as to the constitutional questions involved the recent decision of Banghart v. Walsh, 339 111. 132. In this case the supreme court of Illinois, in a well-reasoned opinion construing the terms of the Illinois barbers’ act denying beauty culturists the right to cut hair without a barber’s license, held these provisions deny due process since the requirement is unreasonable. While the reasoning of the Illinois court is appealing, and the facts then under discussion and those here involved appear quite similar, if not identical, still it is thought the instant case is not to be determined on the principle announced in that case.
“The appellate court will not pronounce a statute unconstitutional and void where a determination of the case does not require that the constitutionality of the statute be determined.” Morse v. City of Omaha, 67 Neb. 426; War Finance Corporation v. Thornton, 118 Neb. 797.
The question fundamentally involved in the present case is whether a cosmetologist, who has in good faith strictly complied with chapter 156, Laws 1929, approved April 23, 1929, entitled “An act to regulate and license practice and
Fundamentally, apart from statutory definition, a cosmetologist is not a barber simply because she may, as a necessary incident of her vocation, cut hair. A carpenter employs a plumb line, square and level, yet the common man would never think of defining the term “carpenter” as including and applicable to all who employ or use the plumb line, square and level in their respective trades.
• In the case of Keith v. State Barber Board, 112 Kan. 834, the supreme court of Kansas had before it for construction an act entitled as one “creating a board of examiners to examine and license barbers; * * * providing for a license for barbers to practice their trade or calling, and providing punishment for a violation thereof.” The first sentence of this Kansas act read: “It shall be unlawful for any person to follow the occupation of a barber in this state unless he shall have first obtained a certificate of registration, as provided in this act.” The court said: “It contains no definition of the word ‘barber.’ It requires an applicant for such a certificate to show among other things that he is free from contagious or infectious disease and that he has the skill to properly perform all the duties of a barber, ‘including his ability in shaving, hair-cutting, preparation of tools, and all duties and services incident thereto.’ The trial court found upon sufficient evidence that the plaintiff in her beauty parlor shop had been doing all of these different kinds of work which barbers in general do: Cutting hair, massaging the face, clipping hair with barber clippers, singeing the hair, giving tonics, shampooing, manicuring; that these activities were not merely incidental but were important features of the business, coordinating with other parts of it.” It was held, however, that “The proprietor of a ‘hair-dressing and
“In this state all public offenses are statutory; no act is criminal unless the legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law.” State v. De Wolfe, 67 Neb. 321; State v. Pielsticker, 118 Neb. 419.
So, too, in construing or interpreting provisions of criminal law it is to be remembered that if any doubts of the meaning exist in penal laws they ought to be construed in favor of the accused. While in no manner negativing the necessity of reasonable construction, yet as between the government and the individual the benefit of the doubt, all other reasons being equal, ought in these cases to be given to the individual, not to authority; for the state makes the laws and authority has the power. Criminal laws are to be strictly construed, and a penalty must be imposed by clear words.
This penalty the state avers is to be found in provisions of chapter 163, Laws 1927, as amended by chapter 154, Laws 1929, hereafter referred to as the “barbers’ act.” But the only penalties subject to the limitations above suggested, enforced under the terms of the barbers’ act, are to be found in section 9, ch. 154, Laws 1929, and of' these the only penalties not necessarily excluded by the-nature of the transaction here presented for determination are the following: “17. Each of the following constitutes a misdemeanor, punishable upon conviction by a fine of not less than $5, nor more than $50: 1. The violation of any of the provisions of section 1 of this act.”
Section 1 of chapter 154, Laws 1929, reenacted without change the first and second paragraphs of section 1, ch. 163, Laws 1927. The first paragraph, thus continued, pro
However, among other changes affected by the amendment of 1929 to the barbers’ act was the elimination of the words “persons engaged in beauty culture” and all references whatever to “lady cosmetologists” theretofore appearing in section 3 of the act of 1927. In lieu of these, the amendment of 1929 to the barbers’ act substituted as persons exempt from its provisions “while in the proper discharge of their professional or occupational duties: * * * 4. Persons engaged in operating or employed in beauty shops or hair-dressing parlors patronized by women and children, except as to the cutting of hair: Provided, however,” etc. This enactment, which in form suggests a proviso engrafted on an exception, then proceeded in terms to prohibit any person from following “the occupation of cutting hair or practicing as a hair-cutter” without first complying !with the provisions specifically set forth therein, including the prescribed qualifications re■quired, the method and. means of determining the same, •and the issuing of a “hair-cutter’s certificate” which “shalE authorize the cutting of hair of persons in beauty shops
It is tó be noted, however, that section 3 above referred to prescribed within itself no penalty for failure to conform to its requirements, and if penalties exist for such they must be sought elsewhere in the provisions of the barbers’ act, as amended. However, the express provisions just referred to, including all portions of the barbers’ act, as amended, which are specifically referred to in terms in section 3 aforesaid, fairly disclose a legislative intent that section 3 of the barbers’ act, as amended, shall constitute a full, complete and exclusive regulation of all the matters covered therein. We take this to be true, notwithstanding that the form of the enactment under consideration is suggestive of “a proviso engrafted on an exception,” because if it be deemed a proviso in form the substance embraced in this enactment causes it fairly to fall within the following rule: “The appropriate office of the proviso is to restrain or modify the enacting clause, and not to enlarge it; but where from the language employed it is apparent that the legislature intended a more comprehensive meaning, it must .be construed to enlarge the scope of the act, or to assume the function of an independent enactment.” 36 Cyc. 1162. See Radil v. Morris & Co., 103 Neb. 84.
The natural conclusion follows that the amendment of 1929 to section 3, ch. 163, Laws 1927, which we refer to as the barbers’ act, constitutes an independent enactment, exclusive in its nature, for the government and regulation of the subject to which it applies. From this it would follow that neither the “hair-cutter and hair-dresser,” which
In view of the canons of construction heretofore set out, we may not by judicial construction ignore specific limitations or extend the scope of the penalty provided in the barbers’ act beyond the express words in which they are prescribed. The conclusion is that there are no penalties provided in chapter 163, Laws 1927, as amended, for the violation of any of the provision of section 3 of the barbers’ act. Therefore none can be applied or enforced by the state.
The stipulation also discloses that the defendant has, so far as we are advised, fully complied with the provisions of chapter 156, Laws 1929.
It follows that the stipulated facts wholly fail to sustain the conviction had herein, but disclose affirmatively that the defendant has, so far as we are advised, substantially
The judgment appealed from is accordingly reversed and the cause dismissed.
Reversed and dismissed.