Jones v. Bontempo

These two cases present the same question of law and are considered together.

The plaintiffs came into conflict with paragraph 3 of Section 1081-17, General Code, as amended, relating to registered barbers, and the license certificate to practice.

Paragraph 3 prohibits "advertising by means of knowingly false or deceptive statements, and advertising of prices of barberservices in any form whatsoever * * *." (Italics ours.)

The plaintiffs advertised on the windows of their respective barber shops, as follows: "Hair cutting twenty-five cents."

The defendants, constituting the board of barber examiners, upon notice and hearing, suspended the license certificates of plaintiffs for sixty days.

The plaintiffs, being dissatisfied with the order of suspension, filed suits under favor of Section 1081-18, General Code, seeking to set aside the orders of suspension of their license certificates.

The complaints are grounded on the claim that that part of paragraph 3 of Section 1081-17, General Code, is unreasonable, arbitrary, and, therefore, unconstitutional, and plaintiffs ask that the orders of suspension be set aside.

The answer in the cases rely on paragraph 3 of Section 1081-17, General Code, which prohibits the advertising of prices on the windows of shops, as justification for the suspension orders.

Plaintiffs demurred to the answers as not constituting a defense, and thus raised the question of the constitutionality of the clause in paragraph 3 of Section 1081-17, General Code.

The trial court sustained the demurrers, holding in the syllabus of its opinion:

"1. Suspension of, or refusal to renew license of a duly licensed barber who in all other respects complies with the provisions of the Ohio Barbers' License Code, solely on account of such barber advertising on the window of his shop the words, `hair cutting 25 cents,' is contrary to the constitutional rights of such barber.

"2. So much of the amendment (approved May 11, 1937 — 117 Ohio Laws, 342) to General Code Section 1081-17 (3) as adds the words `and advertising of prices of barber services in any form whatsoever of any person, persons, firm or corporation' is invalid and unconstitutional in so far as the same denies to a duly licensed barber, complying with the provisions of the Ohio Barbers' License Code, the right to advertise on the windows of his shop, `hair cutting 25 cents.'

"3. Under the authority of General Code Section 1081-18, the Court of Common Pleas is authorized, on appeal from the action of the board of barber examiners, suspending or refusing to renew a barber's license solely on account of his advertising on the window of his shop such words, to set aside and vacate such decision on the ground that the same is unreasonable or unlawful.

"4. The mere act of advertising the price charged by a barber for his services cannot affect the public health, morals, safety or general welfare."

With these findings, we are in accord.

It may be conceded that the state in the exercise of the police power, has the right to enact legislation to prevent fraud and deception, and in original Section 1081-17, paragraph 3, General Code, it did just that. But in an amendment thereto, it added the words regarding price and advertising, complained of. The added words prohibiting advertising could have no purpose of protection to the public or prevention of fraud. In fact the advertising sought to be inhibited would have the effect of protecting the public. The added words in no respect relate to public health, safety, morals, or general welfare, necessary to call into being the police power of the state.

Our conclusion is, based upon reason and authority, that the words above quoted in paragraph 3 of Section 1081-17, General Code, are unreasonable, arbitrary, and their enforcement by suspension of plaintiffs' license certificates violates plaintiffs' constitutional rights. State v. Gardner, 58 Ohio St. 599, 51 N.E. 136; State, ex rel. Monnett, v. Buckeye Pipe LineCo., 61 Ohio St. 520, 56 N.E. 464; People v. Osborne, 17 Cal. App. 2d 771, 59 P.2d 1083; Semler v. Oregon Bd. of DentalExaminers, 148 Ore., 50, 34 P.2d 311.

The judgments are affirmed.

Judgments affirmed.

MATTHEWS and ROSS, JJ., concur.