Ganley v. Claeys

THOMPSON, J.

This is an appeal from a judgment declaring void and of no effect an ordinance of the city of Martinez (No. 2 C. S.) entitled “An Ordinance of the City of Martinez regulating the hours and times for the carrying on and conducting of the business of barbering in the City of Martinez.” The ordinance in question provided that all barber shops should be closed from 6:30 P. M. of each day until 8 o’clock of the following morning except on Saturdays and days preceding holidays specified in the ordinance, on which days they should close at 8 o’clock P. M. and remain closed all day on Sundays and the specified'holidays. The trial court held the ordinance was not a valid exercise of the police power of the city and hence was a violation of sections 1 and 21 of article I and subdivisions 2 and 33 of section 25 of article IV of the state Constitution and section 1 of amendment XIV of the Constitution of the United States, in that it constituted an unnecessary and undue restraint of and interference with personal liberty, a deprivation of property without due process of law, being an unwarranted interference with the carrying on of a lawful business, and, further, that it was special legislation based upon an arbitrary classification.

In the case of

Ex parte Jentzsch,

112 Cal. 468 [44 Pac. 803, 32 L. R. A. 664], this court considered a section of the Penal Code making it a misdemeanor for barber shops to remain open Sundays or on a legal holiday after the hour of 12 o’clock M., and concluded that it constituted an undue restraint of personal liberty and was for that reason unconstitutional and void.

It is asserted by appellants, however, that the present case is different from the one there considered, because since that time the state by the “California Barber

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Law” (Deering’s Gen. Laws, 1931, p. 325) has acted to regulate the business o£ barbering and has defined therein unsanitary practices and provided for the appointment by the board of barbers of "such inspectors as “are necessary to carry out the provisions of the act”. It may be added that it is also provided that no one may practice barbering unless and until he shall have secured a certificate of registration which may be suspended or revoked for a violation of any of the rules of sanitation. It is said and a witness testified that the inspectors are only on duty from 9 A. M. until 5 P. M. and that ninety per cent of the complaints from the public concern violations occurring late in the evening or on Sundays and holidays—hence the ordinance is a health measure. However, a reading of the barber law will convince the most skeptical that the state has provided a complete plan or method for the regulation of the business and to prevent anyone from engaging therein who does not conform to the standards therein announced. Inspections are very rarely made, but there is nothing to prevent the board from proceeding with the hearing provided for in section 16 of the act whenever complaints are of such a character as to justify their action. In this regard the business is not different from the profession of dentistry or medicine or law. It was the apparent purpose of the legislature, subject to certain standards, to vest regulation of the barbers in themselves, by the appointment of a board of barbers charged with the responsibility of enforcing the act. These latter statements, are made because of their bearing upon the question of whether the ordinance here has a reasonable relation to the health of the public. In