          OFFICE   OF THE   ATTORNEY       GENERAL     OF TEXAS
                                  AUSTIN




Honorable L. J. Sulak, Chairman
Pub110 Health Committee
The Senate
Austin, Texas
Dear Slrr




                                                       f the Publlo Health
                                                       is Department upon
the oonstltutlonalit                                       The bill would
authorize the State
prloeo for any and                                   usually   performed   in
the barber   business


                                             i 26 1969, ad&resaeU to
                                             rtmeh hod House Bill Ho.

                                      -examined this       rubjsot.
                            House Bill      No. 194 read as follows :
                            oale
                               of minimum prloes   for
                            all     been agree& upon,
                                   have
                      ltted to the State Beard of Bar-
                        organlzecl and rspreaentattre
     groups of barbers of at least eighty-fire       (85)
     uer oent of the llcenred    barbers  in any ocunty of
     this State, the Stats Board of Barber Examiner8
     shall have power to epprova or disapprove rush
     agreements and to declare’,and establish     within
     euoh oounty, by offlolal     order, the mlnlmum
     prloes for any Andyall work or s~~r*Lase usually
     perfof+med in barber shops.”




      c   . .
Honorable   L. J.     Suhk,   page 2


            Seotlon     4 of Senate Bill   Ho.64 reads as follows:
            ‘The State Board shall have the power to
     oonduot lnveatIgetIone    an6 hearings of all
     oondltiona   affecting  the barber burineea and
     to promulgate rules and regulatione     flxlng
     the mlnlaum prloes for any and all work or
     serrlcea usually performed in barber buslnea-
     sea and shops as will best prote& publio
     health, pub110 welfare and pub110 aafatr,
     and as will enable barbere to furnish modern
     and healthful    aenloe  and ap~lianoea so as
     to einlmlze the dangers to pub110 health In-
     oldant   to such work, taking into oomldera-
     tlon the oonQItIon8, oosts and oonvenlenoes
     in maintaining aanltary, healthful     and olean
     barber shops and working oondltlona.”
            The emergenoj olauae of House Bill No. 194, Seotlon
16 thereof,   and the emergenoy clause of Senate Bill No. 64,
Seotlon  21 thereof,  are easentlally     the same, Seotlon 21 of
Senate El11 Ho. 84 reading    as follorao

            “The faot that there Is at present no
     law regulating   mlnlmum prloea of barber shops,
     and the faot that a condition     exists in the
     barber ~uetaesa:~6r~.~rofeasIoa   whleh Is oreat-
     lng an unfair,   demorallzlng   an& uneoonomio eom-
     petition   and praotioe In this State, vhiah Is
     resulting   In price outting to the exteet of
     llmltlng   and preventing barbers from rendering
     safe and healthful     eervIoe to the publie,  an4
     la causing to be created an unsanitary oondl-
     tlon, oreate an emargenoy and an Imperative
     pub110 neoeaalty that the ilonstltutlonal     IUS
     requiring all bills     to be read on three several
     %byr   In eaoh House be anb the same Is hereby
     suspended, and that thl6 Act take effeot      and
     be ln foroe from and after Its passage, and
     it is so enaoteil.”
             It warn our opinion that House Bill No. 194 was un-
oonetltutlonal,    as stated in our Opinion No. O-850, beoause,
first,   there was not a dleoernlble,   aubstantlal, and logical
relation   between the means adopted by the bill ana the legit-
Ronorrble L. J.   Sulak,   page 3


IlPate objeota of the exerolae of the pollee power, to-wit,
the proteotlon    or the Improvement of the oubllo health, safy
tr, morale, or general welfare.       In oonsaquenoe, the bill did
not represent a oonstltutlonal     limitation   and reatrlotlon   up-
on rights otherwise       aranteed by the oonstltutlon.      In the
aeoond plaoe, House !rIll No. 194 was, in our oolnlon,        unoonatl-
tutlonal   as an unlawful delegation    of leglala.tIve  power in
rsapaot to tha provlslona     making the authority of the board to
fix prloaa In the barbering profe~aalon dependent upon the af-
flwatlve    action of eighty-rive    (85$) per oent of the barbers
in a partloular    oounty.
             Senate Bill No. 64 does not oontaln the provIaIona of
Rouse Bill    Uo. 194 vhloh were aubjaot to the aroond orltIoIam
mentioned.     The first remains.
           The fuwluaantal question arlaing under House Bill
No. 194 as to whether the Legislature   may, as a legItImate
objeot of the exerolae of the polloe power, authorlze the flxlng
of prloea In the barber busIneaa, Is the same in respect to
Senate Bill No. 64.
           Whether minimum prloea say be fixed br tha State
Board of Barber Examlnero of Itself,     or In response to a aub-
miaaIon from a group of barbers in a oounty of this State, Is
Immaterial upon the basis queatlon     of whether In any event the
11bertIea of an IndIvIdual guaranteed by the Oonatitutlon     may
be thus ourtailed  b;r the Leglalature   In the exercise of the
polloe power of the Stats.
           In oonaequenoe, lt would appear to be repCtltIotaa for
us to again dleouaa this aubjeot exhaustively  as wa6 done In
our Opinion No. O-830.
            LeglalatIon    authorizing   the flxlng of prIoaa In the
barber business has never bean before the oourts of Texas.
The oourta In other states are not In agreement upon the quea-
tlon.    LegIslatIve   acts Involving tho fixing of prloas in the
barber bueInesa have been held unoanatltutIonal         and ~014 la the
following   aaaes, the oitatlonti     of whloh are explanatory of
thalr orlglnr
           City of nob118 vs. Rouse, 235 Ala. 622, 1%
Southern 206, 111 A.L.R. 349 (Six Judges In agreement,
one dIsaentlng.)
Honorable   L. J. %alak,     peg@ 4


             City of Nobile vs.       Rouse, 27 Ala. APP. 544,
173 Southern 264 (Two judges          In agreement, one judge
dIaaentIng).
           In 20 Xazaa, 22 Cbllf.         App. (26)    161, 70 Pao. (2d)
962 (Qpinlon by full oourt ).
             State vs. hoe,  123 Fle. 401, 167 Southern SO4
(Four   judges In agreement, two dIaaentIng).
            Dunosn vs.     City   of Dee Uolnea,     222 Iowa 218, 268
N.W. 547 (Opinion   by full       oourt).
          In the following    JurIadIotIona,          auah legIalatlon
ham been held ooaatftutlonal~
            Rerrlng vs. Arnold, 16s Okla. 392, 82 080. (2d1
QW (Plve    judgea bgreaing, three diam4nting, one judge
absent).
            Board e,i Barber Examiners vs. Parker, 190 La.
214, 102 Southern 488 (On origin81 hearing, Aot held
unoonatitutlanal,     four Judges agreeing,   three dIaaentIng~
on rehesrlng,     Aot held to be aonatltutlonal,   five Judgoa
bgreelng,   two dlaaenting).
          State vs. Faaekaa, $36 Ills. 366, 869 N.Y. 700,
(Four Judges a@ee!ng,  three diaaentIng).
            State vs.    WoNasters     (MInn.1.    285 N.fl. 767.
          The o InIon of this depcrtment upon the oonatltutIon-
lllty of anr bl P1 proposed In the Leglalature   la, of oourae, only
advisory In ohareotar.    It daea not have the for-or and lffeot of
a Judgment renflered by ene of our eourta.    It la our oonvIotIon,
however, that the statutes   oonteaplate,  and the te&lalature  desire!
our honest and oonaldered Judgment.
           It ;r therefore  the o?lnlon of this Department that
Senste Bill No. 64~18 invalid.     There la absent, In our OpinIOn,
the neocasory and lubstentlal   relntlon  between the method and
mama ~dovtea by the hot and, the proteotlon     of the pub110 health
or general welfare.    A oopy of our Opinion No. O-880 1s enoloaed,
In which this qusetion Is exhauatlrely    dIsouaaed In relation    to
House Bill No. 194 at the 46th Leglelsture.      We re-afflm   the
HonorableL. J. %alak, ~hrS.xmn,   paga   b




oorreotn888   of thir opmon 0d a80iu0 011~opinion to be   th08
0enatr Bill   64 ir llkerlro unoonotitrttotml.




                 APPROVEDAPR 4, 1941


                kL,U
